Esther @ Gunabhooshanam vs S. Christopher Immanuel

P.D. Dinakaran, J.—This appeal is directed against the judgment and decree dated 23.12.2004 made in F.C.O.P. No. 1418 of 1998 on

the file of the Principal Family Court, Madras, allowing the petition filed by the respondent/husband for restitution of conjugal rights and directing

the appellant/wife to restore to the respondent/husband all comforts and bliss of married life.

Pending the above appeal, the appellant/wife and the respondent/husband have entered into a compromise, agreeing for dissolution of marriage

by mutual consent, and reduced the same into a joint memorandum of compromise dated 30.10.2006 bearing S.R. No. 92494, which reads as

follows:

Joint Memo of compromise filed by the parties:

The appellant and respondent jointly and respectfully submit as follows:

It is submitted that the above appeal is filed by the appellant against the respondent seeking to set aside the judgment and decree dated

23.12.2004 in F.C.O.P. No. 1418 of 1998, on the file of the Principal Family Judge, Chennai. The said F.C.O.P. No. 1418 of 1998 was filed u/s

32 of the Indian Divorce Act by the respondent seeking for restitution of conjugal rights.

The appellant and respondent respectfully submit that after consideration of the circumstances, they mutually agree for divorce and dissolution of

the marriage solemnized between them on 6.2.1992 under the Indian Christian Marriage Act.

The appellant and respondent agree that they do not have any claim whatsoever between them and there is no collusion or undue influence in

such mutual decision of theirs to agree for divorce.

It is, therefore, prayed that this Hon''ble Court may be pleased to record the mutual consent of the parties and pass appropriate orders and thus

render justice.

Dated at Chennai on this the 30th day of October, 2006.

Sd/- Sd/-

Respondent Appellant

Sd/- Sd/-

Counsel for Respondent Counsel for Appellant

It is true that Section 10A of the Divorce Act, 1869 provides for taking a petition for dissolution of marriage by mutual consent before the

District Forum by both the parties on the ground that they have been living separately for a period of two years or more, that they have not been

able to live together and they have mutually agreed that the marriage should be dissolved. In the instant case, there is no doubt that the grounds

referred to above are admittedly satisfied.

The question that arises is whether the parties to marriage, namely the appellant/wife and the respondent/husband, can move a petition for

dissolution of marriage by mutual consent before this Court in a pending civil miscellaneous appeal.

After a close analysis of the other provisions of the Divorce Act, 1869, in the light of the first phrase of Section 10A of the Divorce Act, 1869,

viz., ""Subject to the provisions of this Act..."", we are satisfied that this Court can exercise the power conferred u/s 10A of the Divorce Act, 1869,

by invoking the provisions of Section 8 of the Divorce Act, which reads as follows:

Section : 8. Extraordinary jurisdiction of High Court-The High Court may whenever it thinks fit, remove and try and determine as a Court of

original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this

Act.

In that view, suffice it to modify the judgment and decree dated 23.12.2004 made in F.C.O.P. No. 1418 of 1998 on the file of the Principal

Family Court, Madras in terms of memorandum of compromise referred to above, which shall form part and parcel of the above proceedings, and

there shall be a decree for dissolution of marriage by mutual consent in terms of the joint memorandum of compromise.

This appeal is disposed of accordingly. No costs, Consequently, V.C.M.P. No. 303 of 2006 and CM.P. Nos. 8453 of 2005 and 9538 of 2006

are closed.