IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 OP (FC).No. 277 of 2010(R) ----------------------------------- OP.189/2009 of FAMILY COURT, NEDUMANGAD .................... PETITIONER/RESPONDENT IN THE OP & IA: B.SHIJI, MEKKUMKARAVEEDU, PULIYOOR, PALODE, PACHA PO, THIRUVANANTHAPURAM 695 562. BY ADV. SRI.A.RAJASIMHAN RESPONDENT/PETITIONER IN THE OP & IA: REENA,VARUVILAVEEDU, KEEZHOOR, POONKULAM, AGRICULTURAL COLLEGE PO, THIRUVANANTHAPURAM-695 001. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN OPFC 277/2010 PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF OP 189/2009 EXT. P2 TRUE COPY OF OBJECTION IN OP 189/2009 EXT. P3 TRUE COPY OF THE ORDER IN CRMC 3741/2008 DT. 6.10.2008 EXT. P4 TRUE COPY OF THE ORDER IN WPCR 344/2008 DT. 13.10.08 EXT. P5 TRUE COPY OF THE ORDER IN WPCR 344/2008 DT. 30.10.08 EXT. P6 TRUE COPY OF THE JUDGMENT IN WPCR 344/2008 DT. 18.12.08 EXT. P7 TRUE COPY OF OP 174/2009 EXT. P8 TRUE COPY OF OP 1517/2009 EXT. P9 TRUE COPY OF IA 1828/2010 EXT. P10 TRUE COPY OF THE ORDER IN IA 1828/2010 DT. 20.9.2010 /TRUE COPY/ Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. ------------------------------------------------- O.P.(FC)No.277 of 2010 R ------------------------------------------------- Dated this the 29th day of November, 2011 JUDGMENT Thottathil B.Radhakrishnan, J. Petitioner is the respondent's husband. She filed an application for divorce before the Family Court, Nedumangad as O.P.No.189/2009. It appears that there was a proceeding before this Court as W.P.(Crl.)No.344/2008. We are not going into the allegations in that writ petition. But, this Court recorded therein that Shiji and Reena, who are the parties to this original petition, have a proposal to file a joint petition under Section 13(B) of Hindu Marriage Act and W.P.(Crl.)No.344/2008 was accordingly adjourned on 30.10.2008 as per Exhibit P5 order. Later, on 18.12.2008, that writ petition was dismissed recording the fact that certain articles were given back. 2. The court below however had issued Exhibit P7 order on the basis that this Court had directed filing of an application OPFC 277/10 2 under Section 13(B) or in the premise that there was an undertaking before this Court that the parties to this original petition will file an application under Section 13(B) of Hindu Marriage Act in the court below. We do not find any inference going by Exhibits P5 and P6 orders. We may also say that the parties to this original petition are not parties to W.P.(Crl.) No.344/2008. They were also heard and interacted with even through mediators. At any rate, we are of the view that court below has acted illegally in ordering that husband's defence struck off as regards divorce application by the wife, if he were not to file an application under Section 13(B) of Hindu Marriage Act. Such an application is founded on consent. That consent is not something which can be foisted or any undertaking that is given to any court. Similarly, as the law now stands, if an application under Section 13(B) [see sub-section (2) of Section 13(B)] is filed, the volition of the parties is to give consent when such a matter is finally taken up for decision. We, therefore, find that impugned Exhibit P10 order is vitiated by jurisdictional OPFC 277/10 3 error also. For the aforesaid reasons, this original petition succeeds. Exhibit P10 order is quashed. (Thottathil B.Radhakrishnan, Judge) (C.T.Ravikumar, Judge) tkv