Remanded

Shini N.P v. Unnikrishnan K.

Kerala HC8 Jun 2012Mat.Appeal/13/2012

Case brief

AI extract

What is this about?

This matrimonial appeal adjudicating against a divorce decree dated November 14, 2011 by the Family Court, Kozhikode, challenges a decree granted on grounds of adultery without cross examination of the respondent and without a reasoned order. The High Court of Kerala set aside the decree and remanded the matter for a proper hearing and cross-examination.

What did the court decide?

The order of the Family Court is set aside. The party is to be afforded an opportunity to cross-examine PW1 and adduce evidence. The parties are directed to appear on 9th July, 2012.

Shini N.P Vs Unnikrishnan K. — Matrimonial and Divorce | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN &

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THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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FRIDAY, THE 8TH DAY OF JUNE 2012/18TH JYAISHTA 1934

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Mat.Appeal.No. 13 of 2012 ()

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AGAINST THE ORDER DATED 14.11.2011 IN OP.76/2011 OF FAMILY COURT, KOZHIKODE

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APPELLANT(S):1ST RESPONDENT

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SHINI N.P

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W/O.K.UNNIKRISHNAN, D/O.N.P.VASUDEVAN NALUPURAKKAL HOUSE, POLUR POST, KONOTT KOZHIKODE-673 571.

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BY ADVS.SRI.K.P.SUDHEER

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SRI.SUMODH MADHAVAN NAIR

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RESPONDENT(S): PETITIONER & 2ND RESPONDENT

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UNNIKRISHNAN K.

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S/O.LATE UNNI, OVERSEER

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KERALA STATE ELECTRICITY BOARD, QUARTERS NO.F-10 220 K.V.SUB STATION, NALLALAM POST, AREEKKAD KOZHIKODE, PIN-673 027.

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BIJU.K

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S/O.K.KRISHNAN, KOTTEERI HOUSE

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ODAYAMANGALAM PARAMBA,

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AREEKKAD POST, NALLALAM KOZHIKODE-673 027.

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BY ADV. SRI.E. NARAYANAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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Mat. Appeal No.13 of 2012

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Dated this the 8^th day of June, 2012

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JUDGMENT

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K.T.Sankaran, J.

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The first respondent filed O.P.No.76 of 2011 on the file of the Family Court, Kozhikode, against the petitioner and the second respondent for divorce. The ground alleged was adultery. The second respondent was set ex-parte. The petitioner (1^st respondent before the court below) was not set ex-parte. The Family Court passed an order dated 14^th November, 2011 granting a decree for divorce. It is stated in the order that the first respondent (petitioner herein) did not cross examine the petitioner before the court below.

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2. The learned counsel for the petitioner submitted

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that on the date on which the case was posted, a request was made to pass over the case for some time to enable the Advocate to appear and cross examine PW1. But that

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Mat. Appeal No.13/2012

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request was not granted and the court recorded that PW1 was not cross examined. The order passed by the court below reads as follows :

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“Petition is filed u/s.13(1)(i)(ia) of the Hindu Marriage Act.

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Respondent No.2 was set ex-parte. Petitioner filed chief affidavit. Exts.A1 to A9 were marked. Petitioner has not been crossexamined. The case of the petitioner has been proved.

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Hence, this petition allowed with cost and the marriage of the petitioner and the 1^st respondent dated, 1.7.1996 is hereby dissolved by a decree of divorce.”

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The order passed by the court below is cryptic. It is not a reasoned order. Even if the respondents before the court below did not appear, that by itself is not a ground to pass a decree. The court must be satisfied that the ground alleged is genuine. The order passed by the court below does not indicate that the court applied its mind to the facts of the case.

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Mat. Appeal No.13/2012

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Accordingly, the order passed by the court below is set aside. The Family Court shall afford an opportunity to the petitioner herein (first respondent before the court below) to cross examine PW1 and to adduce evidence of her own and of any other witness. The parties shall appear before the Family Court on 9^th July, 2012.

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K.T.SANKARAN JUDGE

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M.L.JOSEPH FRANCIS JUDGE

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csl

Shini N.P v. Unnikrishnan K.

Case brief

What is this about?

What did the court decide?

Shini N.P v. Unnikrishnan K.

Case brief

What is this about?

What did the court decide?

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