ABU P. ABRAHAM Vs. ANU T. CHERIAN

JUDGEMENT

(1.) The original petition is filed by the husband seeking a direction to the Family Court for conducting counseling as also taking of evidence through Video conferencing. It is also prayed that the statutory time period of six months be waived for which a petition is filed before the Family Court. Though the prayers are innocuous we find that there is a clear abuse of process of Court as evidenced from the records placed before us.

(2.) Ext.P1 is the application for divorce on mutual consent numbered as O.P 729/2020. Ext.P2 is an I.A seeking waiver of the statutory period stipulated under Section 10A of the Indian Divorce Act, 1869. Ext.P3 is an application filed for holding a video conference for counseling and evidence. Ext.P4 is the proof affidavit filed. All these documents are said to be executed from New Zealand before a Notary Public as is the instant original petition. The alarming factor which we notice is that all these documents including the last page of the memorandum of Original Petition and the affidavit accompanying are executed on the very same day ie, 19.10.2020. An application for divorce, petitions for waiver of statutory period, video conferencing and the proof affidavits cannot be filed on the same day nor can all these petitions be executed even before institution of the proceedings. Especially when there is stipulation for counseling and a statutory period after which alone the application for divorce can be taken up. The parties cannot render nugatory the legislative intention to effect reconciliation; if possible.

(3.) A Division Bench of this Court in [ Janardhanan vs. Syamala Kumary , 1990 1 KerLT 328] considering the effect of Section 13B under the Hindu Marriage Act, 1955 found that agreeing with each other to dissolve a marriage was never regarded in law, as consistent with public policy. A caution was expressed insofar as the Courts being duty bound to guard against collusion between parties for wangling unmerited divorce decrees. Section 13B was held to be not a carte blanche granted by Parliament to the spouses to dissolve marriage on mutual agreement. Section 13B was incorporated in the Hindu Marriage Act by Act 68 of 1976, while Section 10A was introduced in the Divorce Act 1869, much later, by Act 51 of 2001. They are worded similar except for Section 10A providing for the spouses having to live separately for a period of two years and above as against one year stipulated in Section 13B. The principle applies squarely and it is pertinent that it is only on satisfaction of the Court, after hearing the parties and after such an enquiry as the Court thinks fit that the marriage has been solemnized and the averments in the petitions are true can the Court pass a decree of divorce under both the provisions. We also respectfully notice the decision of the Hon'ble Supreme Court (SC) [Amardeep Singh vs. Harveen Kaur,2017 4 KHC 683] wherein, while laying down guidelines as to how the consideration under Section 13 B has to be made, specifically in paragraph 19 held: The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver (sic.).