LAWS(KER)-2013-6-231

BIJU M. JOY Vs. NIL

Decided On June 11, 2013
Biju M. Joy Appellant
V/S
NIL Respondents

JUDGEMENT

(1.) Petitioners are husband and wife. They have filed O.P. (Divorce) No. 1417/12 under S. 10A of the Divorce Act which is pending consideration of the Family Court, Pathanamthitta. According to the petitioners, after the filing of the petition, counselling was conducted on 26.11.12 and it failed. The period contemplated under S. 10 has elapsed and thereafter since both the petitioners are in Saudi Arabia and are unable to obtain leave to be present in Court, their counsel has filed Ext. P2 application requesting the Family Court to pass a decree dissolving the marriage. Since the application is made by the counsel and not the parties themselves, the Court is stated to have declined to accept the same and it is therefore that this O.P. has been filed by the petitioners jointly with a prayer to direct the Family Court to accept Ex. P2 and allow the same by granting a decree dissolving their marriage, which was solemnized on 31.8.1995 at the St. George Orthodox Syrian Church, Oonnukkal. Admittedly Ext. P1, O.P. (Div.) No. 1417/2012 was filed by both the petitioners. For counselling also, they appeared and the counselling failed. Therefore, on the expiry of the statutory period specified under S. 10, all that was required was filing of a joint application for a decree of dissolution. There is no law prescribing that the second motion for a decree of dissolution should be filed by the petitioners themselves or that they should be present by themselves. This aspect is already dealt with by a Division Bench of this Court in the judgment in W.P. (C) No. 36119/09 where this Court has held thus:

(2.) Therefore, we dispose of the O.P. directing that the counsel for the petitioners will be free to present Ext. P2 application before the Family Court along with a copy of this judgment. Thereupon the Family Court, Pathanamthitta shall accept the application and deal with the same in accordance with law.