IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, 24TH DAY OF NOVEMBER 2009/3RD AGRAHAYANA 1931 Mat.Appeal.No. 772 of 2008 ---------------------------- OP.176/2006 of FAMILY COURT,KOZHIKODE .................... PETITIONER: APPELLANT/PETITIONER ----------------------------------- SUSHEELA, D/O.KELAPPAN, AGED 40 YEARS, PALOLLATHIL HOUSE, MUDAVANTHERI POST, THUNERI AMSOM, MUDAVANTHERI DESOM, NADAPURAM P.S.L. VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT: RESPONDENT ------------------------- CHANDRAN, S/O. BALAN, AGED 52 YEARS, THEKKELEKANDIYIL HOUSE, VISHNUMANGALAM POST, KALLACHI-VIA, IYYANKODE AMSOM, VISHUMANGALAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.K.M.FIROZ FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== MAT APPEAL NO. 772 OF 2008 ============================ DATED THIS THE 24TH DAY OF NOVEMBER 2009 JUDGMENT Basant,J. This appeal is preferred by the appellant-wife against rejection of her claim for divorce under Section 13 of the Hindu Marriage Act. The said petition was dismissed by the court below taking the view that the marriage was one which was registered (evidently under the Special Marriage Act) and not solemnised under the provisions of the Hindu Marriage Act. For that reason, the petition was dismissed. 2. The finding that the marriage was not performed under the Hindu Marriage Act is challenged by the appellant. In fact, the marriage was solemnised in accordance with the Hindu rites and rituals, it is submitted. Before the court below, it appears that no evidence was adduced on that aspect. In the light of absence of evidence and the contention of the respondent that Mat Appeal No. 772/2008 -2- the marriage was only a registered marriage, the court below felt that the provisions of the Hindu Marriage Act can have no application. 3. The parties have settled their disputes now. The respondent accepts that the marriage was in fact performed in accordance with the Hindu religious rites. The parties now want to seek divorce under Section 13 B of the Hindu Marriage Act. If opportunity is given to them, they shall be in a position to adduce evidence before the court below that the marriage was in fact performed and solemnised in accordance with the Hindu religious rites . But the parties are not seeking an order under Section 13 of the Hindu Marriage Act now. In these circumstances, it is prayed that the appellant/petitioner may be permitted at this appellate stage to withdraw O.P.No. 176/2006. It is prayed that the appeal may be allowed and all findings rendered in O.P.No.176/2006 may be set aside. The parties may be granted liberty to approach the court below to file a petition under Section 13 B of the Hindu Marriage Act and substantiate their contention before the court below. Such right may not in any way be fettered by the impugned common order. Mat Appeal No. 772/2008 -3- I.A.No.3421/2009 has been filed before this Court for an order dissolving the marriage under Section 13 B of the Hindu Marriage Act. Relief cannot be granted on that application as it will have to be insisted that a marriage in accordance with Hindu religious and customary rites is proved before an order under Section 13 B of the Hindu Marriage Act is passed. 4. However, we are satisfied that the joint request of the parties can be accepted and appropriate orders can be passed in this Mat appeal. 5. In the result: a) This appeal is allowed. b) The impugned order and all findings in the impugned order are set aside. c) As the parties do not now want to seek any order under Section 13 of the Hindu Marriage Act, permission is given to the appellant/petitioner-wife to withdraw O.P.NO.176/2006. O.P.No.176/2006 shall hence stand dismissed as withdrawn. d)The parties shall be at liberty to file appropriate application before the court below under Section 13 B of the Hindu Marriage Act. In such application, they shall be at liberty Mat Appeal No. 772/2008 -4- to prove that their marriage had taken place in accordance with Hindu Religious rites and ceremonies. No findings or observations in the impugned order shall fetter their rights of spouses to take up such a plea and substantiate the same. I.A. No. 3421/ 2009 6. Dismissed as not pressed now. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.