TIJI DANIEL Vs. ROY PANAMKOODAN

JUDGEMENT

(1.) Can anyone of the petitioners in an application filed under Section 10A of the Divorce Act, 1869 challenge the decree, which granted dissolution of the marriage based on mutual consent, in an appeal filed under Section 19 of the Family Courts Act, 1984, is one of the questions arising for consideration. A further question also arises in the case at hand as to whether the Family Court can allow dissolution of a marriage without conducting an enquiry as contemplated in sub-section (2) of Section 10A and without insisting upon, either the presence of the parties or affidavits of the parties.

(2.) The appellant and the respondent jointly filed O.P.No.726/2017 before the Family Court, Irinjalakkuda seeking dissolution of their marriage based on mutual consent, under Section 10A of the Divorce Act, 1869 (hereinafter referred to as 'the Act' for short). The original petition was allowed through the judgment impugned herein and the marriage between the parties was dissolved, with effect from the date of the judgment. The court below granted permanent custody of the minor children to the respondent herein. It was further directed that the petitioners shall mutually comply with the conditions written in paragraphs 3 and 4 of the original petition.

(3.) The appellant, who is the wife, is challenging the judgment mainly on the ground that the Family Court had exceeded jurisdiction under Section 10A in granting permanent custody of the minors to the respondent and also in directing compliance of the conditions written in paragraphs 3 and 4 of the original petition. It was also contended that, the mandatory duty cast upon the court under Section 10A(2) of the Act has not been discharged legally. It is pointed out that, there is no satisfaction recorded on the essential ingredients for granting a dissolution of the marriage by mutual consent. Specific contention is that, filing of a petition based on mutual consent does not authorise the court to dissolve the marriage, but the court has to take into consideration the fact that the 'interregnum waiting period' is intended to give time and opportunity to the parties to reflect on their move and to seek advice from relatives and friends. During the interregnum period, one of the parties may have a second thought and a change in the mind, not to proceed with the petition. Therefore sub-section (2) mandates the court to hear the parties and that the court cannot pass a decree of divorce on mutual consent, unless it is confirmed that both the parties are still sticking on to the stand taken by them at the time of filing of the petition. The aspect of mutual consent should continue till the divorce decree is passed. That being a mandatory requirement, non-compliance of the same will nullify the decree of dissolution, is the contention. It is pointed out that, mere fact that the parties have agreed to have the marriage dissolved, does not mean that both of them are bound to stick on to it, whatever be the subsequent developments.