IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 Mat.Appeal.No. 811 of 2011 ----------------------------------- OP.16/2011 of FAMILY COURT, KALPETTA .................... APPELLANTS/PETITIONERS IN O.P: 1. SUNIL KUMAR ARACKAL RAGHAVAN NAIR, S/O.ARACKAL RAGHAVAN NAIR, ARACKAL HOUSE, KALANADIKOLLY P.O., PULPALLY VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SURESH BABU, S/O.CHOYIKUTTY, KALLIDUMBIL HOUSE, VADUVANCHAL P.O., SULTHAN BATHERY-673 581. 2. METHANTAZHIKATHU SOMANATHAN SAJINI, D/O.SOMANATHAN, METHANTAZHIKATHU HOUSE, KALANJOOR, PATHANAMTHITTA, KERALA REP. BY HER POWER OF ATTORNEY HOLDER MANU CHANDRAN, S/O.PURUSHOTHAMAN PILLAI, MANU BHAVAN, KUZHIMATHICADU P.O., KOTTARAKKARA. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN RESPONDENT: NIL. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. ------------------------------------------------------------- Mat. Appeal No.811 of 2011 ------------------------------------------------------------- Dated this the 1st day of December, 2011 JUDGMENT Thottathil B.Radhakrishnan J. Appellants married under the provisions of the Special Marriage Act, 1954. They are Hindus. They ultimately could not live together. Differences of opinion cropped up among them. Duly considering the necessary aspects, they decided to separate and seek divorce on mutual consent. They filed an original petition before the court below seeking that their marriage may be dissolved by a decree of divorce. Such an application is permissible under Section 28 of the Special Marriage Act, 1954. However, apparently, erroneously, the petition was captioned as one filed under Section 13B of the Hindu Marriage Act, 1955. The captioning of the petition is not an essential part of the pleadings. Not only that, the provision for divorce on mutual consent is under Section 13B of the Hindu Marriage Act. We looked into the original petition from among the lower court MA 811/2011 2 records. We are satisfied that the captioned petition, one filed under the provisions of the Hindu Marriage Act, is obviously an error and misquoting of a provision of law cannot be treated as fatal to the application. 2. The court below dismissed the petition on the sole ground that what has been filed is under the provisions of Hindu Marriage Act and provisions of that Act cannot be invoked in the case of marriages under the Special Marriage Act. We think that ends of justice would have been satisfied if the court below treated the application as one filed under Section 28 of the Special Marriage Act, 1954 because, the relief sought for was divorce on mutual consent without making reference to any provision. The thrust of the pleadings disclose that appellants seek divorce on mutual consent. The parties had also clearly pleaded in paragraph one of the petition that the marriage was under the provisions of the Special Marriage Act. Under such circumstances, in our view, the application could have been accepted, since the learned Judge did not come to the conclusion that decree could not be granted on any ground referable to MA 811/2011 3 Section 34 of the Special Marriage Act. There is no finding in the impugned judgment that the action is collusive or intended to support the course of litigation. In the result, this appeal is allowed setting aside the impugned judgment and a decree is passed hereby declaring the marriage between the appellants as dissolved with effect from today. (Thottathil B.Radhakrishnan, Judge) (C.T.Ravikumar, Judge) tkv