Decree for dissolution of marriage by mutual consent procedurally unsound if not based on satisfaction of grounds stated in Section 10A of the Divorce Act, 1869

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. allowed an appeal against the judgment of Family Court for the said court’s failure in conducting a proper enquiry and for failure in recording satisfaction based on such an enquiry conducted.

The appellant and respondent had jointly filed a petition for dissolution of their marriage by mutual consent Section 10A of the Divorce Act, 1869. The petition was allowed and respondent was granted permanent custody of their minor children. The appellant-wife challenged the said decree on the ground of court’s non-compliance to the mandatory procedural formality of interregnum waiting period.

The primary question for the determination of the court was as to whether a decree granting divorce by mutual consent can be challenged in an appeal filed under Section 19 of the Family Courts Act, 1984.

The Court observed that a decree under Section 13 B of the Hindu Marriage Act, 1955 is passed on the Court being satisfied that certain circumstances exist and certain conditions are fulfilled. Such a decree is not a decree passed merely on consent, but on the court being satisfied with the existence of those conditions. Relying on the decision of Gujarat High Court in Jyoti v. Darshan Nirmal Jain, 2012 SCC OnLine Guj 6283 it was held that in the present case since the lower court had failed to record its satisfaction under Section 10A(2) of the Divorce Act and not even followed the mandatory procedure of six months waiting period, therefore bar under Section 19 (2) of the Family Courts Act would not apply and the instant appeal would be maintainable.[Tiji Daniel v. Roy Panamkoodan,2018 SCC OnLine Ker 4145, decided on 17-09-2018] 

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