T SHEELA Vs. P K BALASUBRAHMANYAN

JUDGEMENT

(1.) THE appellant herein was the 2nd petitioner before the Family Court, Malappuram in O.P.No.903/11 and the respondent herein was the first petitioner therein. The above Original Petition was filed by the appellant and the respondent together under Section 13B of the Hindu Marriage Act (hereinafter referred to as 'the Act') and Section 7(1)(a) of the Family Courts Act.

(2.) IN the Original Petition, it is alleged that the marriage of the appellant and the respondent took place on 25.8.1991 as per the Hindu customs and ceremonies. After the marriage, they were living as husband and wife and a son, viz., Lalu was born in the wedlock. Due to many reasons, the matrimonial life of the appellant and the respondent has broken down and they were living separately from 10.8.2002 onwards, thus physically and mentally separated. Though several mediation talks were made by the relatives of the appellant and the respondent, nothing was fruitful. As there was no chance of reunion, the appellant and the respondent decided to separate and for that purpose, they filed the above Original Petition, on 2.9.2011. Before the Family Court, both the petitioners appeared personally and filed affidavits and on accepting the affidavits as evidence, the Family Court allowed the Original Petition and the marriage between the petitioners in the Original Petition was dissolved with effect from 8.3.2012. Against that order, the second petitioner in the Original Petition filed this appeal.

(3.) SECTION 23(1)(b)(bb) of the Act provides that while a divorce is sought on the ground of mutual consent, the court must be satisfied that such consent should not have been obtained by force, fraud or undue influence. Section 23(1)(c) of the Act provides that the court must be satisfied that a petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent. In this case, in paragraph 5 of the petition, it is stated by the petitioners that there is no collusion between the parties in filing the petition or any compulsion from any side and the petition is filed by the petitioners under their free will and decision. In the separate affidavits filed by the petitioners, these facts are stated. The mere fact that both petitioners want the marriage to be dissolved need not necessarily import collusion. Section 21 of the Act provides that all proceedings under the Act shall be regulated, as far as may, by the Code of Civil Procedure. Order 19 Rule 1 of the Code of Civil Procedure provides that the court has power to order any point to be proved by affidavit. In the present case, both the petitioners were present before the Family Court and they filed separate affidavits asserting that the facts stated in the joint petition are true. Moreover, the divorce decree under Section 13B of the Act was passed only after the expiry of the waiting period of six months from the date of filing of the petition and the parties were personally present before the Family Court after six months of filing of the petition and they filed separate affidavits confirming the facts stated in the joint petition. In this appeal, the appellant has no case that the divorce decree granted under Section 13B is vitiated by collusion, force or fraud or undue influence. Therefore, we are of the view that Family Court is fully justified in granting the decree of divorce under Section 13B of the Act. Accordingly, this appeal is dismissed in limine, as it is without any merits. There is no order as to costs.