IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 24219 of 2008(S) -------------------------- AGAINST THE ORDER DATED 30/05/2008 IN MP NO. 239 OF 2008 IN MC.78/2008 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): --------------- JITTYMON JOSEPH AGED 29 YEARS, S/O.JOSEPH RESIDING AT MAMALATHAZHATHU HOUSE, RAMAMANGALAM P.O.,686 63 RAMAMANGALAM VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE RESPONDENT(S): --------------- 1. TANIA CHACKO, AGED 23 YEARS, D/O. P.C.CHACKO RESIDING AT PAZHAYAKULAM HOUSE KURICHY P.O., KOTTAYAM DISTRICT ADDL. R2 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LEGISLATIVE DEPARMENT, MINISTRY OF LAW & JUSTICE, SHASTRI BHAVAN, NEW DELHI-110 001. IS IMPLEADED AS ADDITIONAL 2ND RESPONDENT AS PER ORDER] DATED 29/6/09 IN I.A.NO.7897/09 IN WP(C) NO.24219/08. ADV. SRI.LIJI.J.VADAKEDOM FOR R1 SRI.T.P.M. IBRAHIM KHAN, ,ASST.SOLICITOR GENERAL OF INDIA FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON 25/02/2010 DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No.24219 of 2008-S ------------------------------------------------- Dated this the 25th day of February, 2010 JUDGMENT Basant,J. The only question that survives for consideration in this writ petition is whether the joint application for dissolution of marriage under Sec.10A of the Divorce Act can be allowed and the marriage dissolved? 2. A brief reference to the facts may be relevant. The parties are Christians by religion. Their marriage was solemnized in accordance with the Christian religious rites on 31/12/07. There was instant acrimony in matrimony and the couple started separate residence from 10/2/08. A series of matrimonial litigations followed and the husband filed O.P.No.502/08 before the Family Court for restitution of W.P.(C) No.24219 of 2008-S -: 2 :- conjugal rights. The wife filed M.C.No.78/08 claiming maintenance under Sec.125 Cr.P.C.; O.P.No.319/08 claiming a money decree from the husband and O.P.No.512/08 claiming divorce under Sec.10 of the Divorce Act. While these proceedings were pending before the court below, the wife filed M.P.239/08 in M.C.No.78/08 claiming interim maintenance under Sec.125 Cr.P.C. That petition was allowed and interim maintenance was awarded. It is against that interim order that the petitioner/husband came to this Court with this writ petition. 3. During the pendency of this writ petition, the court initiated steps to induce the parties to come to a mediated settlement. Accordingly, the parties settled all their outstanding disputes. I.A.No.1572/09 was filed on 30/1/09 to report to this Court the comprehensive settlement arrived at between the parties harmoniously. I.A.No.1573/09 was filed on 30/1/09 praying that an order of divorce by mutual consent may be passed under Sec.10A of the Divorce Act. 4. This Court entertained a doubt whether divorce by mutual consent under Sec.10A of the Divorce Act can be granted to the contestants inasmuch as a period of two years of separate residence had not elapsed on 30/1/09, the date on which the joint application for divorce under Sec.10A was filed. Confronted with this difficulty, the contestants challenged the constitutional validity of the said stipulation of two years under Sec.10A(1) of W.P.(C) No.24219 of 2008-S -: 3 :- the Divorce Act. Notice was given to all concerned. Union of India was arrayed as a party. Advocate Sri.G. Shrikumar was appointed as amicus curiae. Detailed arguments were advanced. 5. It is now noted that a period of two years of separate residence has already elapsed on 10/2/10. We have already taken the view in the judgment dated 25/2/2010 in W.P.(C) No.20076/09 (Saumya Ann Thomas v. Union of India & Another) that the period of two years in Sec.10A(1) of the Divorce Act has to be read down as 'one year' to avoid unconstitutionality. 6. We have, in these circumstances, taken up this writ petition separately for disposal as we note that a period of two years has, at any rate, elapsed from the date of separate residence i.e., 10/2/08. We have already taken the view that the said period stipulated in Sec.10A(1) of the Divorce Act has to be read down to a period of one year. At any rate, we are satisfied that the requirement of Sec.10A(1) of the Divorce Act, as it was enacted having been satisfied, this writ petition can be disposed of separately. Invoking the powers of the Family Court under Sec.10A of the Divorce Act we are satisfied that a decree for dissolution of marriage under Sec.10A can be granted in favour of the parties. We do further note that a period far exceeding the period of six months stipulated in Sec.10A(2) of the Divorce Act has elapsed after filing the joint petition. W.P.(C) No.24219 of 2008-S -: 4 :- 7. I.A.No.1572/09 is the petition filed by the contestants to report comprehensive settlement of their disputes. The same shall form part of this judgment. In that joint settlement parties have reported that they shall be taking necessary steps to bring to termination all pending proceedings between them i.e., O.P.No.502/08, M.C.No.78/08, O.P.No.319/08 and O.P.No.512/08 – all pending before the Family Court. We need only issue appropriate orders under Sec.10A of the Divorce Act now. 8. In the result: (a) This writ petition is allowed. (b) I.A.No.1572/09 filed jointly by the contestants reporting settlement is accepted. The same shall be appended to this judgment. (c) I.A.No.1573/09 is allowed. Invoking the powers of the Family Court under the Divorce Act, the marriage between the petitioner and the 1st respondent solemnized on 3/12/07, in accordance with the Christian religious rites, is hereby dissolved under Sec.10A of the Divorce Act. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge W.P.(C) No.24219 of 2008-S -: 5 :-