Dismissed

Benny Abraham v. P.B.Lissy

Kerala HC30 Nov 2012OP (FC)/3621/2012

Case brief

AI extract

What is this about?

The High Court in Original Petition (FC) No. 3621 of 2012 disposed of a challenge to a Family Court order. The Family Court had amended an earlier order that mistakenly dismissed a petition, effectively converting it to grant a decree of dissolution based on a joint petition. The High Court upheld the amendment, noting the dismissal was an error easily corrected under Section 153 of the CPC, and d

What did the court decide?

The Original Petition was dismissed. The Family Court's Ex.P5 order (amending Ex.P3 to grant a decree of dissolution) was confirmed.

Benny Abraham Vs P.B.Lissy — 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 & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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FRIDAY, THE 30TH DAY OF NOVEMBER 2012/9TH AGRAHAYANA 1934

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OP (FC).No. 3621 of 2012 (R) ---------------------------I.A.2477/07 IN OP.84/2006 of FAMILY COURT,THRISSUR

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PETITIONER(S)/RESPONDENT:

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BENNY ABRAHAM, AGED 38 YEARS S/O.ABRAHAM, NADAPADAVIL HOUSE, KANTHALAM DESOM, KAIRADI P.O., PALAKKAD DISTRICT. BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA

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RESPONDENT(S)/PETITIONER:

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P.B.LISSY D/O.PALLIYEDATH BERNAD JOSE, INCHAKUNDU DESOM VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT-680001. BY ADV. SRI.NAGARAJ NARAYANAN ADV. SRI.SAIJO HASSAN ADV. SRI.BENOJ C AUGUSTIN ADV. SRI.I.J.AUGUSTINE ADV. SRI.SEBIN THOMAS ADV. SMT.J.KASTHURI ADV. SRI.PRATHAP PILLAI

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30-112012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(F.C.) 3621/12

APPENDIX

PETITIONER'S EXTS.:-

EXT.P1: TRUE COPY OF THE PETITION IN O.P. 84/06 BEFORE THE FAMILY COURT, THRISSUR.

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EXT.P2: TRUE COPY OF THE PETITION AS I.A.2650/06 IN O.P.84/06 BEFORE THE FAMILY COURT, THRISSUR.

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EXT.P3: TRUE COPY OF ORDER DATED 9.9.06 IN O.P.84/06 BEFORE THE FAMILY COURT, THRISSUR.

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EXT.P4: TRUE COPY OF APPLICATION IN I.A.2477/07 IN O.P.84/06 BEFORE THE FAMILY COURT, THRISSUR.

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EXT.P5: TRUE COPY OF THE ORDER DATED 26.7.10 IN I.A.2477/07 IN O.P.84/06 BEFORE THE FAMILY COURT, THRISSUR.

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

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O.P.(F.C.) No.3621 of 2012

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Dated this the 30^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 Original Petition filed under Article 227 of the Constitution by the petitioner who is the husband of the respondent is Ext.P5 order passed by the Family Court, Thrissur. By Ext.P5 order, I.A.No.2477 of 2007 filed by the respondent-wife under Section 152 of the C.P.C. for amending Ext.P3 order passed by the Family Court is allowed. It is paragraph 4 of Ext.P3 which is now deleted under Ext.P5. The submission of Mr.Santhosh P.Poduval, learned counsel for the petitioner before us was that the I.A. should not have been allowed. According to him, the observation in Ext.P3 that the parties have settled all issues between them was one made by the Family Court consciously upon being convinced on the basis of the interaction which the court had with the parties who were present before the court. Section 152 of the C.P.C. does not have any application in such a situation. Section 152 of the C.P.C. contemplates only correction of a clerical or arithmetical mistakes

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O.P.(F.C.) 3621/12

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in judgments, decrees or orders or errors arising therein from any accidental slip or omission. Mr.Nagaraj Narayanan, learned counsel for the respondent submitted that by passing Ext.P5 order, the Family Court has only corrected a mistake committed by the same court earlier in Ext.P3 which was filed jointly by the two parties wherein the only prayer was that a decree of divorce be granted as the relationship between the parties has irretrievably broken down. The court has no material other than Ext.P2 to pass Ext.P3. The statements of the parties were not recorded by the court before Ext.P3 was passed. Hence, the observation in Ext.P3 that the parties have settled all their disputes was made by a mistake.

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We have considered the rival submissions addressed at the Bar. We have gone through the materials placed on record, particularly Ext.P2. The question is whether Ext.P5 order should be interfered with by us invoking our visitorial jurisdiction under Article 227 of the Constitution. According to us, the above question can be answered only in favour of the respondent. True, Section 152 of the C.P.C. may not apply strictly. But then the learned Judge could have invoked Section 153 as the above

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O.P.(F.C.) 3621/12

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Section enables that the court at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit. In the present case, what the learned Family Court was expected to do on receiving Ext.P2 was to go through it and to find out whether there was any illegalities or irregularities and to record the terms of compromise and passed an order accordingly. We find that in Ext.P3, though the marriage has been dissolved by a decree of divorce, the learned Judge has actually dismissed the O.P. which was a very vital mistake. As rightly pointed out in Ext.P5 order, the only material before the court was Ext.P2 joint petition. Ext.P2 joint petition does not state that parties have given up all their mutual claims. Ext.P2 joint petition speaks only about severing the matrimonial relation by a decree of dissolution. We, therefore, confirm Ext.P5 order and dismiss the Original Petition.

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PIUS C. KURIAKOSE, JUDGE.

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BABU MATHEW P. JOSEPH, JUDGE.

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srd

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O.P.(F.C.) 3621/12 4

Benny Abraham v. P.B.Lissy

Case brief

What is this about?

What did the court decide?

Benny Abraham v. P.B.Lissy

Case brief

What is this about?

What did the court decide?

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