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2019 DIGILAW 29 (KER)

Justin Abraham v. Preethy N Thomas

2019-01-11

ANNIE JOHN, K.HARILAL

body2019
JUDGMENT : Annie John, J. This appeal was filed against the judgment dated 05.01.2016 in O.P. No. 625 of 2014 on the files of the Family Court, Kottayam at Ettumanoor. The appellant herein is the petitioner before the court below. The petition was filed for divorce by the appellant herein against the respondent for false allegations, which resulted in the extinction of mental peace of appellant's family. 2. The learned counsel for the appellant contended that the court below, on an erroneous appreciation of facts, law and evidence on record, dismissed the petition for divorce by entering upon a finding that the appellant has filed a petition for divorce only on false allegations. 3. When the matter came up for hearing, it was reported by both parties that the matter has been settled. Accordingly, they filed a petition under Section 10A of the Indian Divorce Act, 1865, ('the Act' for short) stating that the marriage between the appellant and respondent was solemnized on 21.08.2004 at St. Joseph's Church, Arunootimangalam, as per the rites and ceremonies prevalent in the Syro Malabar Christian community. Their marriage was subsequently registered with the Marriage Officer of Krishnarajapuram, Bangalore, as statutorily mandated. They are living separately from 10.03.2013 onwards. The marital life has become irretrievably broken down and therefore, they are living separately for more than 5 years. They have not been able to live together and they have mutually agreed and desired to dissolve their marriage by a decree of divorce by mutual consent. Several mediators intervened and as there is no chance for reunion, they finally decided to get separated from the marriage life. The decision to dissolve the marriage by mutual consent has been taken by the appellant and respondent freely, voluntarily and without any sort of influence from any corner. They are convinced that they will not be able to live together as husband and wife any more. No disputes are pending unresolved between the them. There is no coercion or compulsion on them in filing the above application and it is filed on their free will. The cause of action for the petition arose on 21.08.2004, the date on which they got married and on 10.03.2013, the date on which they started living separately. No disputes are pending unresolved between the them. There is no coercion or compulsion on them in filing the above application and it is filed on their free will. The cause of action for the petition arose on 21.08.2004, the date on which they got married and on 10.03.2013, the date on which they started living separately. Accordingly, they prayed for granting a decree of divorce dissolving the marriage between them on the ground of mutual consent contemplated under Section 10A of the Divorce Act. Along with this application, a separate petition is filed herewith for waiving the period of 6 months to pass order under Section 10A of the Act for dissolving the marriage. In that, it was stated that the Mat. Appeal was filed by the appellant against the judgment dated 05.01.2016 in O.P. No. 625 of 2014 on the files of the Family Court, Kottayam at Ettumanoor, seeking divorce, which was dismissed. The entire disputes between both parties were settled on the following conditions:- i. Housing loan taken from State Bank of India, Indira Nagar Branch, for the Flat No.008, Harsha Green Wood, Ground Floor, 5th Main, 6th Cross, Malleshpalaya, Bangalore-560 075, in the joint names of myself and the 2nd petitioner, Preethy N. Thomas, will be paid by him. ii. Release deed will be executed by him in favour of the 2nd petitioner within one month from today. He will not make any 2nd claim for the title and possession of the above said flat. petitioner will be the absolute owner of the above said flat. iii. All the cases including the case under the Domestic Violence Act pending as Crl.Mis.No.134/2014 before the Metropolitan Magistrate Traffic Court (IMMTC) Mayohall, Bangalore will b withdrawn by the 2nd petitioner. iv. On the above conditions, divorce by mutual consent is agreed. Separate petition will be signed by both the parties for filing in the above Mat. Appeal for getting a decree of divorce. 4. Now the entire disputes between the appellant and the respondent have been settled out of court and he is not interested to proceed against the respondent and no disputes are pending to be resolved. I.A. No. 2 of 2019 is filed for divorce by mutual consent. Physically and psychologically, both the appellant and his wife, found it very difficult, rather impossible, to cohabit and coexist in harmony and happiness. I.A. No. 2 of 2019 is filed for divorce by mutual consent. Physically and psychologically, both the appellant and his wife, found it very difficult, rather impossible, to cohabit and coexist in harmony and happiness. The appellant and his wife started living separately from March, 2013 onwards. They have no intention to revive their marriage. They are residing separately for more than 5 years. There was no chance for reconciliation during this period of separation. They have no intention to cohabitate or co-exist under one room and one bed. There is no chance to retrieve from the irretrievable brake down of marital relationship and there is no possibility for the reconciliation also. There is no coercion or compulsion on the part of them in filing the interlocutory application, which was filed with free will. 5. Now the petition is filed under Section 10A of the Indian Divorce Act and the appeal is pending in which they have sought for waiving of six months' period and to grant divorce as they intended so. 6. In this connection, the learned counsel for the appellant has cited a decision in Amardeep Singh v. Harveen Kaur [ 2017 (4) KHC 683 (SC)], in which it is held that if Court is satisfied that a case is made out to waive statutory period under Section 13B(2), it can do so. Paragraphs 18 of the said decision reads thus: “18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(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 XXXIIA 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. 19. 19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.” It has also held that though Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. 7. In fact, specific provision is enacted in the Indian Divorce Act in connection with the Christians that if they want to separate by mutual consent, they have to file an application under Section 10A of the Act and the object of the provision is to enable the parties to dissolve the marriage by consent, if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. 8. The object of the cooling off period was to safeguard against a hurried decisions, if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. An effort can be made during this period so as to save the marriage and even after the effluent period, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 9. Here, the parties have come up after a long battle and decided to separate by filing a petition under Section 10A of the said Act. We have interacted with the parties separately in the open court. Both are highly qualified and well employed and as per their version, they are residing separately since 2013 onwards. They have no children and now they have amicably settled down the entire disputes pending between them and they have decided to live separately by mutual consent. 10. After a detailed discussion, we do not find any external force on them to file the present petition before this Court. Considering the facts and circumstances of this case, we are of the view that keeping the file alive for six months will not improve their marital status. 11. 10. After a detailed discussion, we do not find any external force on them to file the present petition before this Court. Considering the facts and circumstances of this case, we are of the view that keeping the file alive for six months will not improve their marital status. 11. It has also held in Linish P.Mathew and Another v. Mruthula Mathew [2012(3)KHC 251(DB)] that passing a decree nisi after a period of six months from the date of filing of joint petition and thereafter directing the parties to wait for another period of six months to make the decree absolute, would defeat the ends of justice. In this circumstance, this Court can pass a decree for dissolution of marriage after the waiting period of six months. 12. So, here, we find that the parties entered into a compromise through mediators and the entire matter between them have been settled down and there is no meaning in giving a cooling time to get to know that their matrimonial relationship will be reinstated. 13. Section 8 of the Indian Divorce Act provides for extraordinary jurisdiction of the High Court. It provides that the High Court, may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under the Act in the Court of any District Judge within the limits of its jurisdiction under the Act. 14. Section 17 of the Act, as amended, provides for removal of a case from the District Court to the High Court on the application of any person suspecting that the parties to the suit have been acting in collusion for the purpose of obtaining a divorce. On such removal of the case from the District Court to the High Court, the High Court can try and determine the case as a Court of original jurisdiction and the provisions contained in Section 16 shall apply to every suit so removed. 15. Section 16, before the amendment and after the amendment, provides that every decree for dissolution of marriage made by a High Court shall, in the first instance, be a decree nisi. Such decree nisi shall not be made absolute till after the expiration of such time, not less that six months from the pronouncing thereof as the High Court, by general or special order from time to time, directs. Such decree nisi shall not be made absolute till after the expiration of such time, not less that six months from the pronouncing thereof as the High Court, by general or special order from time to time, directs. The question to be resolved is whether a decree nisi is compulsory under Section 16 of the Act where the High Court entertains an application under Section 10A of the Act in an appeal pending against the decree passed by the District Court. 16. In this connection, it is profitable to extract Section 10A of the Divorce Act, 1869, which reads thus: "10A. Dissolution of marriage by mutual consent.-(1) Subject to the provisions of this Act and the rules made there under, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and thy have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree." Section 10A is a new provision introduced by the Amendment Act 51 of 2001. The object of Section 10A is for passing a decree declaring the marriage to be dissolved with effect from the date of decree, on the motion of both the parties made not earlier than six months after the date of presentation of the petition under Section 10A, provided other conditions of sub-Section (2) thereof are satisfied. Sub-section (2) of Section 10A does not provide for passing a decree nisi as provided in Section 16, to be made absolute after the expiration of six months. Sub-section (2) of Section 10A does not provide for passing a decree nisi as provided in Section 16, to be made absolute after the expiration of six months. It is true that a decree under Section 10A can be passed after the expiry of six months from the date of its presentation. It is to be borne in mind that the legislature deliberately made a provision for passing a decree for dissolution of marriage under Section 10A, instead of passing a decree nisi. Even after the amendment of the various provisions of the Act, a decree nisi is required to be passed under Section 16, but such a decree nisi is not required to be passed under Section 10A. In effect, a decree passed under Section 10A can only be a decree nisi as provided under Section 16 of the Act, the result would be delay of a minimum period of one year from the date of presentation of a petition under Section 10A for dissolution of marriage by mutual consent. Section 10A is substantially the same as Section 28 of the Special Marriage Act and Section 13B of the Hindu Marriage Act. The only difference is that the period of separate living by the spouses should be one year under the Special Marriage Act and the Hindu Marriage Act, while it should be two years in the case of an application under Section 10A of the Divorce Act. Moreover, Section 10A petition is to be presented to the District Court. No decree nisi need be passed by a District Court. 17. Now the question that arises for consideration is whether the High Court has power to grant a decree under Section 10A of the Act in a pending appeal. 18. In Linish P Mathew, it is held in paragraph 16 thus: “16. If an application under Section 10A is entertained in a pending appeal before the High Court, then the same procedure to be followed by a District Court under Section 10A should be followed notwithstanding that the petition is to be dealt with by the High Court and not the District Court. If an application under Section 10A is entertained in a pending appeal before the High Court, then the same procedure to be followed by a District Court under Section 10A should be followed notwithstanding that the petition is to be dealt with by the High Court and not the District Court. If it is to be held that when the High Court entertains an application under Section 10A, even after the waiting period of six months only a decree nisi could be passed thereby compelling the parties to wait for another period of six months, it would have the result of holding that the High Court even lacks the powers which the District Court has. Such a result is not contemplated by the Act. Section 45 of the Act provides that subject to the provisions contained in the Act, all proceedings under the Act “between party and party” shall be regulated by the Code of Civil Procedure, 1908. If so, in view of Section 107 of the Code of Civil Procedure, the Appellate Court will have the same powers as that of the trial court. The Appellate Court also can entertain a petition under Section 10A of the Divorce Act in a pending appeal, since the District Court also can entertain an application under Section 10A in a pending Original Petition for dissolution of marriage.” 19. Secondly, six months' time is granted for the purpose of ensuring that the application is not filed as a result of collusion between the parties. In fact, before the introduction of Section 10A of the Act, a consent decree for divorce was unknown and when the application filed under Section 10A of the Act is filed, the provision says that this decree cannot be passed until the expiry of six months' from the date of petition. This provision was enacted for the purpose of ensuring the absence of collusion. Even if the parties have filed an application under Section 10A with their consent, there must be a proof to the effect that there is no collusion between the parties. So, in fact, the collusion is meant that the parties have got an aim to achieve a goal which is not apparent. Sometimes, the parties may collude together and a decree for divorce may be to gain an advantage. So, the consent and collusion is to be looked into in a different angle. So, in fact, the collusion is meant that the parties have got an aim to achieve a goal which is not apparent. Sometimes, the parties may collude together and a decree for divorce may be to gain an advantage. So, the consent and collusion is to be looked into in a different angle. In all consent, there would not be a collusion; but there will be collusion in certain cases. Therefore, the court will be very vigilant while disposing of a petition filed on mutual consent. 20. Now, the appellant herein has filed an application under Section 10A of the Act by stating that their marital relationship is irretrievably broken down. Then the power is vested on the court to consider the facts that how long parties have been married, how long litigation is pending, how long they have been staying apart, are there any other proceedings between the parties, have the parties attended mediation/conciliation, and have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties. The court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. This fact has been reiterated in Amardeep Singh's case (supra). 21. So, after having a discussion with the parties personally, we find that there is no possibility of chance for reunion. Therefore, the court is having ample power to pass an order under Section 10A of the Divorce Act. Even in the appellate stage, the High Court has got every power to pass a decree under Section 10A of the Act. So, we are of the opinion that the period mentioned in Section 10A of the Act is not mandatory but directory and it will be open to this Court to exercise its discretionary power. In the facts and circumstances of this case where there is no chance for reunion and rehabilitation, we find that this joint petition was filed by the parties on mutual consent and there is no coercion behind them. Over and above, they have been residing separately since 2013 onwards. Further, there is no chance for reunion. In the facts and circumstances of this case where there is no chance for reunion and rehabilitation, we find that this joint petition was filed by the parties on mutual consent and there is no coercion behind them. Over and above, they have been residing separately since 2013 onwards. Further, there is no chance for reunion. All the other conditions under Section 10A of the Act is satisfied in this case. Accordingly we allow IA. No. 2 of 2019 and pass a decree declaring that the marriage between Mr. Justin Abraham and Mrs. Preethy N. Thomas is dissolved with effect from today. Accordingly this Mat. Appeal is disposed of.