Allowed

Shajil v. Namitha

Kerala HC9 Nov 2012Mat.Appeal/34/2012

Case brief

AI extract

What is this about?

Kerala High Court allowed the appellant's matrimonial appeal against an ex parte order dismissing his application. It set aside the lower court's decree and ordered the appellant to pay Rs. 7,500 costs and appear before the Family Court to adduce evidence, with conditions due to the respondent's remarriage.

What did the court decide?

Impugned order set aside; appellant directed to pay Rs. 7,500 costs and appear by 14/12/12 to adduce evidence; Family Court directed to expedite matters.

Shajil Vs Namitha — 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 PIUS C.KURIAKOSE &

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THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934

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Mat.Appeal.No. 34 of 2012 (A)

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IA.NO.176/2011 IN OP.914/2008 of FAMILY COURT, KANNUR

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APPELLANT/PETITIONER/RESPONDENT:

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P. SHAJIL

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S/O. RAVEENDRAN, AGED 35, P.O.KAVUMBAGAM, THALASSERY.

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BY ADVS.SRI.P.NARAYANAN

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SRI.T.BABY

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RESPONDENT/RESPONDENT/PETITIONER:

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NAMITHA,

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D/O. T.V.SUNDARAN, AGED 21 YEARS, THAZHAYIL HOUSE, THALANGARA P.O. KASARAGOD DISTRICT-671001

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R1 BY ADV. SRI.SHAIJAN C.GEORGE

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 09-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.

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-----------------------------------------------Mat. Appeal No.34 of 2012

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Dated this the 9^th day of November, 2012

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JUDGMENT

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Pius C. Kuriakose, J

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Under challenge in this Mat Appeal is the order of the Family Court, Kannur dismissing I.A.176/11 filed by the appellant in OP.914/08. The OP was filed by the respondent, wife of the appellant wherein a decree of nullity of marriage has been passed on the ground that the marriage was never consummate. Even though several chances were given, the appellant who was the respondent in the OP did not turn up before the Family Court to adduce evidence. There was a peremptory posting on 19/02/11. On that day also, the appellant did not turn up before the Family Court. The Family Court therefore set the appellant ex parte and has passed ex parte judgment against the appellant on

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Mat. Appeal No.34 of 2012

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22/02/11. The I.A. was filed by the appellant alleging that the appellant could not appear before the Family Court to adduce evidence as he was suffering from back pain on account of certain injuries sustained by him in a motor accident. The evidence on the side of the appellant consisted only of his own oral evidence as PW1. No counter evidence was adduced by the respondent. The learned Family Court was not at all impressed by the evidence adduced by the appellant. Hence, the application was dismissed.

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We have heard the submissions of the learned counsel for the appellant and those of the learned counsel for the respondent. The learned counsel for the appellant submitted that an opportunity may be given to the appellant to adduce evidence before the Family Court for substantiating the contention he has raised in the OP.

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Mat. Appeal No.34 of 2012

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Counsel for the respondent drew our attention to the oral evidence which was adduced by the appellant before the Family Court in the I.A. It is submitted that the appellant has very clearly stated in his evidence that if he is given ` 2 lakhs he will be agreeable for the passage of divorce decree. The appellant's intention is only to protract the divorce proceedings. Counsel also submitted that as there was no stay the respondent got married on the strength of the ex parte judgment.

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Having heard the submissions addressed at the Bar, we are of the view that opportunity can be given to the appellant for substantiating whatever contentions he had raised in the OP on rigorous conditions. We are told that the appellant is a tailor who is conducting a tailoring shop in a building taken out by him on lease in Thalassery town. The learned counsel was not in a position to say as to what is the

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Mat. Appeal No.34 of 2012

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monthly income of the appellant. We feel that interest of justice will be served if the appellant is directed to pay a sum of ` 7,500/- to the respondent either directly or through his counsel as cost for getting the ex parte judgment passed against him set aside. Accordingly, we set aside the impugned order as well as ex parte judgment passed against him by the Family Court on 22/02/11 subject to the following conditions:-

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a) The appellant shall pay a sum of ` 7,500/- as cost to the respondent either directly or through his counsel in this Court within a period of three weeks from today and produce receipt before the Family Court.

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b) The parties shall appear before the Family Court, Kannur on 14/12/12. The appellant is given opportunity to adduce whatever evidence he has at his command for substantiating the contentions he has raised in the original

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Mat. Appeal No.34 of 2012

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petition subject to compliance of the above direction.

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The I.A is allowed and the ex parte judgment dated

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22/02/11 is set aside. If there is no compliance with any of

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the above conditions the ex parte judgment will revive. As

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the respondent already contracted a marriage on the strength of the ex parte decree passed by the court below in his favour there will be a direction to the Family Court, Kannur to expedite matters and to ensure that revised orders are passed early and at any rate within one month from 14/12/12.

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Sd/-

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PIUS C. KURIAKOSE JUDGE

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Sd/BABU MATHEW P. JOSEPH JUDGE

kns/-

//TRUE COPY//

P.A. TO JUDGE

Mat. Appeal No.34 of 2012 -6-

Shajil v. Namitha

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Shajil v. Namitha

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