IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Mat.Appeal.No. 272 of 2008() ---------------------------- OP.287/2006 of FAMILY COURT, KOTTAYAM .................... APPELLANT(S): PETITIONER ------------------------ BAIJU, S/O.KUTTAPPAN, PULINILKKUMKALAYIL KURUMULLOOR.P.O., KANAKKARI VILLAGE, MEENACHIL TALUK. BY ADV. SRI.A.K.HARIDAS RESPONDENT(S): RESPONDENT ------------------------- PRIYA, D/O.GOPALAN, PULIYIL HOUSE, PADUVA.P.O., KOTTAYAM. ADV. SMT.DEEPTHY.S.NATH FOR R1 ADV. SMT. SANDHYA RAJU - MEDIATOR THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2009 ALONG WITH MA NO. 293 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- MAT. APPEAL NOS. 272 & 293 OF 2008 --------------------------------------------------------- Dated this the 3rd day of February, 2009 JUDGMENT Ravikumar, J. These appeals are directed against the common judgment of the Family Court, Kottayam in O.P. Nos. 287 of 2006 and 621 of 2005. The former Original Petition was one for divorce filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") and the latter for return of money and gold ornaments. O.P. No.287 of 2006 was filed by the husband and O.P. No. 621 of 2005 was filed by the wife. A joint trial was conducted in respect of the said cases and evidence was recorded in O.P. No.287 of 2006. The points as to whether a decree for divorce prayed for by the husband in O.P. No.287 of 2006 and the decree for return of amount and gold ornaments prayed for by the wife in O.P. No.621 if 2005 are allowable were formulated for consideration. The evidence in these cases consists of the oral testimonies of PWs.1 to 3 and RWs.1 to 3 and Exts.A1, X1 and X2. 2. After a careful consideration of the evidence adduced, the Family Court negatived the first point against the petitioner - husband in O.P. Mat. Appeal Nos.272 & 293/2008 2 No.287 of 20006 and found that his claim for a decree of divorce is not allowable. The second point as regards the entitlement of the petitioner - wife in O.P. No.621 of 2005 was answered in her favour. Accordingly, as per the common judgment, O.P. No.287 of 2006 was dismissed and O.P. No.621 of 2005 was allowed in part and the petitioner - wife therein has been granted a decree to realise Rs.25,000/- with 9% interest from the date of the petition, viz. 31.10.2005 and for return of 28 sovereigns of gold ornaments or its present approximate value of Rs.2,11,000/- with 9% interest from 1.2.2008, the date of the judgment. 3. Mat. Appeal No. 272 of 2008 is filed against the judgment and decree in O.P. No.287 of 2006 and Mat. Appeal No.293 of 2008 is filed against the judgment and decree in O.P. No.621 of 2005. In both the appeals, the husband is the appellant. 4. During the pendency of these appeals, the parties to the appeals filed a joint petition under Section 13B of the Act in Mat. Appeal No. 272 of 2008 as I.A. No.345 of 2009. Admittedly, from 5.11.2004 onwards, the appellant and the respondent are living separately and they have never resided together since then. Mat. Appeal No. 272 of 2008 is presented to this Court more than eight months ago. Considering these circumstances, Mat. Appeal Nos.272 & 293/2008 3 we think that it is a fit case wherein the period stipulated under Section 13 B of the Act can be waived and proceed further with its consideration. Accordingly, we do so. 5. After a careful consideration of the said joint petition and enquiry, we are of the view that the marital relationship between the parties has been irretrievably broken down and that they have been living separately for the past four years or thereabout. They will not be able to live together any further. They have now mutually agreed that their marriage should be dissolved. We are satisfied that the averments in the petition are true. Evidently, there is no collusion, undue influence or fraud and they have agreed mutually for the same with free will. In the circumstances, we are of the view that the joint petition filed under Section 13 B of the Act can be allowed. Accordingly, I.A. No. 345 of 2009 in Mat. Appeal No.272 of 2008 for dissolution of marriage is allowed and a decree for divorce is granted dissolving the marriage between the appellant and the respondent solemnised on 11.6.2000. 6. In Mat. Appeal No.293 of 2008, during its pendency a compromise petition, viz. I.A. No.194 of 2009, under Order XXIII Rule 3 C.P.C. has been filed by the parties. Condition No. 4 therein reads thus: Mat. Appeal Nos.272 & 293/2008 4 "2nd petitioner herein (wife) received Rs.25000/- (Twenty Five Thousand Only) as per the direction of this Hon'ble Court and received Rs.2,20,000/- (Two Lakhs Twenty Thousand Only) today. Thus a total amount of Rs.2,45,000/- (Two Lakhs Forty Five Thousand Only) is received by the 2nd petitioner from the 1st petitioner towards the full and final settlement of decree in O.P. 621/2005 of Family Court, Kottayam against which this appeal is filed. 2nd petitioner will not raise any further claim relating to the above issue/suit and the settlement is entered by the parties according to their free will with understanding the contents of this compromise petition." Accordingly, the decree in O.P. No.621 of 2005 is modified in terms of condition No.4 in the said compromise petition and the compromise petition will form part of the decree. The Matrimonial Appeals are disposed of as above. In the circumstances, there is no order as to costs. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ Mat. Appeal Nos.272 & 293/2008 5 P.R. RAMAN & C.T. RAVIKUMAR, JJ. MAT. APPEAL NOS. 272 & 293/2008 JUDGMENT 3rd February, 2009 Mat. Appeal Nos.272 & 293/2008 6