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2019 DIGILAW 462 (KER)

Rejeesh P. R S/o. P. N. Rajednran Nair v. X

2019-06-18

ANNIE JOHN, K.HARILAL

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JUDGMENT K.Harilal, J. The petitioners are divorced husband and wife. This Original Petition has been filed by them challenging the consent decree passed by the Family Court, Mavelikkara in O.P.(HMA) No.439/2018 filed by the first petitioner herein. Admittedly, the decree appealed against is a consent decree passed under Section 13(B) of the Hindu Marriage Act. This O.P. has been filed with the averment that, though the marriage between the petitioners had been dissolved by the impugned consent decree, considering the welfare of the child, they intend to resume cohabitation, as husband and wife. But, the impugned decree dissolving the marriage stands in the way of fresh marital life between the petitioners. They prayed for setting aside Ext.P4 decree and Ext.P5 judgment, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India so as to secure cohabitation. 2. Heard Shri.Mohanlal, the learned counsel for the petitioners. 3. The questions that emerge for consideration in this Original Petition are, (1) Can a consent decree granting divorce, under Section 13(B) of the Hindu Marriage Act, be challenged under Article 227 of the Constitution of India before the High Court, by both parties themselves on the ground that they want to resume the matrimony again? (2) Can a dissolved Hindu Marriage by a consent decree, under Section 13(B) of the Hindu Marriage Act, be resumed in Appeal preferred by both parties to the decree on the ground that they want to resume the matrimony, in view of subsequent events? (3) Whether a second marriage in accordance with law is sine qua non to the divorced spouses to resume a valid marital life again? 4. According to Section 19(2) of the Family Court Act, no Appeal shall lie from a decree or order passed by the Family Court with the consent of the parties (or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973). So we find that the Appeal, challenging a consent decree passed on the mutual consent of the parties to the marriage/Suit, is explicitly barred under Section 19(2) of the said Act. We are of the view that, when an Appeal is expressly barred by a specific provision in the special statute, an Original Petition under Article 227 of the Constitution of India cannot be entertained, to circumvent the specific bar under the special statute. We are of the view that, when an Appeal is expressly barred by a specific provision in the special statute, an Original Petition under Article 227 of the Constitution of India cannot be entertained, to circumvent the specific bar under the special statute. In short, the supervisory jurisdiction of the High Court, under Article 227 of the Constitution of India, cannot be exercised to defeat a statutory bar, under the special statute. Therefore, the Original Petition itself is not maintainable. 5. Coming to the next question, on an analysis of the entire scheme of marriage and dissolution envisaged under the Hindu Marriage Act, we find that there is no provision for resumption of a marriage dissolved, either under a contested decree under Section 13(1) and (2) or a consented decree under Section 13(B) of the Act. Moreover, as has been held above, a consent decree is not appealable under Section 19(2) of the Family Court Act. Matrimony is an institution having sanctity and consistency in the society. It is not a mere arrangement revolving at the tune of momentary will or pleasure. A dissolved marriage can never be resumed, at the mere will of the parties. Once a Hindu marriage is dissolved by a decree of divorce, it can never be resumed to lead a valid marital life again, as a second marriage in accordance with law is sine qua non for the same. But, at the same time, there is no legal impediment to marry again. According to Section 15 of the Hindu Marriage Act, when a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented, but has been dismissed, it shall be lawful for either party to the marriage to marry again. There is no statutory insistence that the subsequent marriage must be with another party. Therefore, after the dissolution of marriage, by a decree of divorce, the divorced spouses can marry again when the time for filing appeal has expired without an appeal having been presented or appeal has been presented and got dismissed. A second marriage in accordance with law is sinequanon to the divorced spouses to resume a valid marital life again. Therefore, after the dissolution of marriage, by a decree of divorce, the divorced spouses can marry again when the time for filing appeal has expired without an appeal having been presented or appeal has been presented and got dismissed. A second marriage in accordance with law is sinequanon to the divorced spouses to resume a valid marital life again. In the case of consent decree dissolving the marriage, since the appeal is barred, the parties to the dissolved marriage can marry again immediately after the dissolution of marriage. So, there is no need to resume the dissolved marriage. In the above analysis, this Original Petition is dismissed.