Remanded

Molly Abraham v. Cyriac Thomas

Kerala HC21 May 2012Mat.Appeal/159/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal, set aside the Family Court's ex-parte divorce decree, and remanded the case for a fresh hearing after both parties were given a chance to be heard and contest the allegations.

What did the court decide?

The judgment and decree are set aside; the case is remanded for fresh disposal after hearing both parties; appellant entitled to file counter affidavit within one month.

Molly Abraham Vs Cyriac Thomas — 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 & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934 Mat.Appeal.No. 159 of 2012 () ----------------------------OP.896/2011 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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APPELLANT/RESPONDENT:

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MOLLY ABRAHAM AGED 57, D/O. LATE C.P. ABRAHAM, CHERIAKAL HOUSE KARIMKUNNAM.P.O, THODUPUZHA IDUKKI DISTRICT - 685 586 NOW RESIDING AT 31 OAKMOOR WAY, CHIGWEL, ESSEX IG-7 4 BS, UNITED KINGDOM. BY ADVS.DR.SEBASTIAN CHAMPAPPILLY SRI.KURIAN ANTONY EDASSERY SMT.ANNIE GEORGE RESPONDENT/PETITIONER: ------------------------CYRIAC THOMAS AGED 61 YEARS, S/O. THOMAS, VAITHARA HOUSE KUMARAKOM.P.O, KUMARAKOM VILLAGE KOTTAYAM DISTRICT - 686 563.

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 21-05-2012, 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.159 of 2012

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Dated this the 21^st day of May, 2012

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JUDGMENT

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K.T. Sankaran J.,

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Though the respondent was served with notice in the Mat. Appeal, there is no appearance for him.

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The respondent filed Divorce O.P. No.896 of 2011 on the file of the Family Court, Kottayam at Ettumanoor against the appellant for divorce under Section 10(ix) of the Divorce Act. The Family Court passed judgment dated 2.1.2012 and granted a decree for divorce, after setting the appellant ex-parte.

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The ground alleged by the respondent for divorce was that

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the appellant willfully deserted the respondent and withdrew from

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his company since February 2006.

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Mat. Appeal No.159 of 2012

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In the memorandum of appeal, it is stated that the

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appellant is a nurse by profession and she is now working in U.K. It is also stated that four children were born in the wedlock and the eldest son is now aged 24 years.

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In paragraph 12 of the memorandum of appeal, it is stated

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thus:

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“It appears from the above that the gravamen of the charge against the appellant is that the appellant willfully neglected and deserted the petitioner against his will and without any reasonable cause and that there is no contact between the appellant and the respondent since February 2006. The appellant submits that these two averments are absolutely false and there are documentary evidences to show that the very foundation of the allegation are false. The visa endorsed on his passport and the health card issued to the respondent from Chester in the U.K. in the year 2007 and the Electricity Payment card issued by the EN-POWER U.K. in the year 2009 etc. are ample proof to disprove the averments made by the respondent as the petitioner in the Family Court.”

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Mat. Appeal No.159 of 2012

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In ground (v) of the Memorandum of Appeal, the

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appellant has stated thus:

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“The address of the appellant shown in the judgment is that of her former place of employment. The appellant resigned from her job on 17^th April 2011 from the Forest Place Nursing Home, Buckhurst Hill, Essex and she has since been working in Sherrell Nursing Home, Chigwell, Essex. In fact, the respondent was aware of the change of address of the appellant and still he caused the notice to be sent to her former place of employment so as to run away with an ex-parte decree of divorce”.

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The Family Court passed the judgment dated 2.1.2012

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based only on the evidence of the respondent. The appellant did not get an opportunity to adduce evidence. Learned counsel for the appellant submitted that the appellant was not served with notice. It is also submitted that had the appellant been given opportunity to adduce evidence and to contest the matter, an amicable settlement would have been possible.

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Mat. Appeal No.159 of 2012

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The Court below relied on the evidence of the respondent,

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since there was no contra evidence. It is to be noted that there is no independent evidence to show that the case put forward by the respondent is true. It is submitted that had the respondent produced his passport, it would have been clear that his case was not true. It is also submitted that relevant records were suppressed by the respondent. It is alleged that the respondent did not furnish the correct address of the appellant and the respondent managed to get the ex-parte decree in his favour.

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Taking into account the peculiar facts and circumstances of the case, we are of the view that an opportunity should be granted to the appellant to contest the case on the merits. Therefore, it is necessary to set aside the judgment and decree of the Court below and to direct the Family Court to consider the matter afresh.

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Accordingly the Mat. Appeal is allowed and the judgment and decree are set aside and the case is remanded to the Court

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Mat. Appeal No.159 of 2012

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below for fresh disposal in accordance with law, after affording an opportunity of being heard to both the parties. The appellant will be entitled to file a counter affidavit, within a period of one month from the date of appearance. The parties shall appear before the Family Court on 25.6.2012.

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K.T. SANKARAN, (JUDGE)

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M. L. JOSEPH FRANCIS, (JUDGE)

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dl/

Molly Abraham v. Cyriac Thomas

Case brief

What is this about?

What did the court decide?

Molly Abraham v. Cyriac Thomas

Case brief

What is this about?

What did the court decide?

What the court decided

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