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2018 DIGILAW 720 (KER)

Akshara A. v. Rohin S. Raveendran

2018-09-11

C.K.ABDUL REHIM, R.NARAYANA PISHARADI

body2018
JUDGMENT : C.K. ABDUL REHIM, J. 1. Invoking the power of superintendence vested on this court under Article 227 of the Constitution of India, the petitioner is challenging Ext.P4 order passed by the Family Court, Chavara in IA No. 1189/2017 on a petition filed by the parties herein, seeking exemption and waiver of the statutory period stipulated under the proviso to Section 14 (1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act for short). 2. The petitioner and the respondent herein jointly filed an original petition before the Family Court under Section 13B of the Act, seeking dissolution of the marriage existing between them, based on mutual agreement. Along with the said application, I.A No. 1189/2017 was filed seeking leave of the court to present the original petition before expiry of the period of one year since the date of the marriage. In the affidavit filed in support of the said application it is stated that, both of them have realized from the first day of their marriage that they are not compatible to proceed under a marital tie; and shortly thereafter they have decided to separate. It is specifically mentioned that, the parties lost unanimity to continue under the conjugal tie on the day of the marriage itself and the marriage was not consummated. They lived together hardly for one month, within which time they realized that the marital bondage has been broken irretrievably. They decided to live separated, after informing the parents and relatives of both the parties. All attempts made by their parents and relatives to resume marital harmony turned futile. Mediation attempts made by office bearers of the branch committee of S.N.D.P. also failed and they were also convinced about the irretrievable breakdown of the marital relationship. Thereafter all the issues with respect to exchange of properties were settled and a decision was taken to dissolve the marriage by mutual consent through process of law. It is specifically mentioned that, the marriage was on 09.12.2016 and they started living separated on 17.01.2017. It is also stated that, the 2nd petitioner before the Family Court, who is the respondent herein, is working abroad and is available on a short leave to prefer the joint petition based on the settlement arrived and that he has to return back within a short span. It is also stated that, the 2nd petitioner before the Family Court, who is the respondent herein, is working abroad and is available on a short leave to prefer the joint petition based on the settlement arrived and that he has to return back within a short span. It was specifically mentioned that if the parties have to wait for expiry of the one year period as required under the proviso to Section 14 (1) of the Act, it will adversely and drastically affect the studies of the petitioner herein and also the job of the respondent abroad. Hence it is stated that if the petition is not allowed that will put the petitioner to exceptional hardships and exceptional depravity to the respondent, who is the 2nd petitioner. 3. The court below had dealt with the interim application by keeping the original petition as unnumbered. The learned Judge of the Family Court observed that, the statutory requirement of expiration of one year period can be waived only when the parties have shown that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. The court below observed that the parties have not averred any such circumstances. It was observed that the averments to the effect that the relationship was broken from the first day of the marriage itself or that the marriage was not consummated or that they have separated by mutual consent are not grounds available under the proviso to Section 14(1) in order to waive the statutory period. Hence the application was dismissed. Consequently the original petition was returned for presentation after expiry of the statutory period stipulated under Section 14(1). It is aggrieved by the said order the above original petition is preferred. 4. A Division Bench of this court had occasion to deal with the issue in Gijoosh Gopi vs. Sruthi, 2012 (4) KLT 269 . On the facts, it was also a case where the marriage did not last even for a day and the marriage was not consummated. There also mediators were involved and an agreement was arrived with respect to inability to continue the marital relationship and a decision was arrived to seek dissolution through mutual consent. On the facts, it was also a case where the marriage did not last even for a day and the marriage was not consummated. There also mediators were involved and an agreement was arrived with respect to inability to continue the marital relationship and a decision was arrived to seek dissolution through mutual consent. Relying on a decision of the High Court of Delhi In Re: Pooja Gupta and Others, (2005) DHC 571 : (2003) ILR 2 Delhi 616, it was held that it is clear that there exists exceptional hardships. In Pooja Gupta's case (supra) the Delhi High Court observed that, the relevant consideration while granting exemption from the expiry of one year period for filing a petition for divorce by mutual consent are: (a) the maturity and the comprehensions of the spouses. (b) absence of coercion/intimidation/undue influence. (c) the duration of the marriage sought to be dissolved. (d) absence of any possibility of reconciliation. (e) lack of frivolity. (f) lack of misrepresentation or concealment. (g) the age of the spouces and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties. 5. We are of the considered opinion that the court below had failed to make a proper consideration by conducting an enquiry with respect to presence of the relevant factors mentioned as above. None of the criteria could have fetched a negative inference, if a proper consideration was made in the case at hand. The court below could have considered the factum of the deleterious effect on the continuance of the sterile marriage, on the prospects of re-marriage of the parties. As held by the High Court of Delhi, that itself can be considered as a case of exceptional hardship contemplated under the proviso to Section 14(1) of the Act. 6. In a judgment of another Division Bench of this court in OP (FC) No. 2651/2013, dated 4th September, 2013 it is held that, from the scheme of the proviso to Section 14(1) it is obvious that the Family Court is empowered to grant leave to present a petition for dissolution of the marriage on the basis of mutual consent before expiry of one year, if the petitioner establishes that the case is one of exceptional hardships. The rider contained in the proviso makes it clear that, if the court at the time of hearing of the main petition becomes satisfied that the leave provided under the proviso was obtained by any misrepresentation or concealment of the nature of the case, and if the court pronounces a decree of dissolution a condition can be incorporated that the decree shall not have the effect until expiry of the one year period from the date of the marriage or even the court may dismiss the petition without prejudice to the right of the parties to approach the court on the expiry of the one year period, from the date of the marriage. On the facts, in the case mentioned above also, the parties have not lived together and the marriage was not consummated. This court observed that, no purpose of any nature will be served by insisting the parties to wait for one year as required under Section 14(1) and that such requirement would cause exceptional hardships to the parties concerned. The court held that, the view taken by the Family Court that the parties have failed to make out a case of exceptional hardships, has to be negatived. 7. Under the above mentioned circumstances, we are of the considered opinion that, the order impugned herein was passed without proper appreciation of the principle of law remaining settled. The real consideration ought to have been placed in allowing a waiver under the proviso to Section 14(1) was omitted notice of the court below. Therefore the order impugned is liable to be set aside and the application need to be allowed. 8. Incidentally, before parting with the judgment, we may also refer to a recent decision of the Hon'ble Supreme Court in Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746 which dealt with the question regarding the discretionary power of the courts in allowing waiver of the statutory period contemplated under Section 13 B (2) of the Act. It is held that waiver of the cooling-off period is directory and it is open to the court to exercise its discretion on the facts and circumstances of each case, where there is no possibility of the parties resuming cohabitation and when there are chances of alternative rehabilitation. It is held that waiver of the cooling-off period is directory and it is open to the court to exercise its discretion on the facts and circumstances of each case, where there is no possibility of the parties resuming cohabitation and when there are chances of alternative rehabilitation. But the Hon'ble apex court stipulated that, in order to arrive at a satisfaction as to whether a case is made out to waive the statutory period stipulated under Section 13-B (2) the courts have to consider the following aspects. “(i) the statutory period of six months specified in Section 13-B (2) in addition to the statutory period of one year under Section 13-B (1) of separation of parties is already over before the first motion itself. (ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23 (2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts. (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties. (iv) the waiting period will only prolong their agony.” 9. Considering clause (i) extracted from the decision in Amardeep Singh's case (supra) it is to be found that, a waiver of the 6 months period specified in Section 13-B (2) cannot be made in a case where the application for dissolution of the marriage was presented within expiry of one year from the date of separation of the parties. Therefore in the case at hand the petition for dissolution of the marriage can be considered only on the expiry of 6 months period from the date of presentation of original petition. Since we have already found that the application made under the proviso to Section 14 (1) was liable to be allowed in this case, the date of presentation of the petition for dissolution of the marriage need to be considered as the original date of presentation of the said petition, which is noted in the impugned order as 31.08.2017. 10. In the result, the above original petition is hereby allowed to the extent of quashing Ext. P4 order passed by the Family Court. The interim application, filed by the parties herein in the unnumbered original petition filed before the Family Court is hereby allowed. 10. In the result, the above original petition is hereby allowed to the extent of quashing Ext. P4 order passed by the Family Court. The interim application, filed by the parties herein in the unnumbered original petition filed before the Family Court is hereby allowed. The Family Court is directed to number the original petition and to deal with the matter in accordance with law. The parties shall be permitted to make the second motion as provided under sub-section (2) of Section 13 B, because the period of 6 months from the date of presentation of the original petition (31.08.2017) now stands expired. However, the Family Court will complete the requisite statutory formality of counselling/mediation, if not already done, before proceeding with the enquiry as contemplated under sub-section (2) of Section 13 B of the Act. 11. Considering pendency of the matter before the Family Court since the last more than one year, that court will expedite disposal of the case within the earliest time possible. The parties or their counsel shall appear before the Family Court on 25.09.2018, in order to facilitate an early consideration of the matter.