Allowed

Smitha Thomas v. Biju Varghese

Kerala HC21 Nov 2012OP (FC)/3807/2012

Case brief

AI extract

What is this about?

A Writ Petition under Article 227 sought directions for the Family Court to accept an affidavit instead of oral evidence for granting a mutual consent divorce. The High Court allowed the petition, waiving personal presence for the absent petitioner abroad and directing the handover of the original power of attorney.

What did the court decide?

Directions issued: Family Court to accept petitioner's affidavit without personal appearance; Petitioner's attorney to handover original power of attorney to respondent; Divorce decree passed favorabl

Smitha Thomas Vs Biju Varghese — Civil Procedure and Limitation | 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 WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934 OP (FC).No. 3807 of 2012 (R) ---------------------------OP.490/2012 of FAMILY COURT, MUVATTUPUZHA

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PETITIONER(S):

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SMITHA THOMAS, AGED 30 YEARS D/O.T.T.THOMAS, RESIDING AT THEVALAKATTU HOUSE AYROORPADAM POST, KOTHAMANGALAM, ERNAKULAM DITRICT REPRESENTED BY P/A. HOLDER T.T.THOMAS, AGED 62 S/O.LATE T.A.THOMAS, THEVALAKKATTU HOUSE AYROOPADAM POST, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADVS.SRI.K.C.ELDHO SRI.JIJO THOMAS SRI.SURAJ.S SRI.ANESH PAUL

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RESPONDENT(S): -------------BIJU VARGHESE AGED 37, S/O.VARKEY, CHIRAKKAL HOUSE, PRALAIKADU THURUTHY POST, ERNAKULAM DSITRICT-682 563. RR. BY ADV. SRI.A.C.DEVASIA

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21-112012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC) NO.3807/2012

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PETITIONER(S) EXHIBITS

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EXHIBIT P1. A TRUE COPY OF THE MUTUAL CONSENT PETITION FILED BY THE PETITIONER AND RESPONDENT.

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EXHIBIT P2. A TRUE COPY OF THE AFFIDAVIT FILED BY THE P/A. HOLDER FATHER IN EXHIBIT P1.

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EXHIBIT P3. TRUE COPY OF THE RELEASE DEED EXECUTED BY THE PETITIONER IN FAVOUR OF THE RESPONDENT IN COMPLIANCE OF THE CONDITION STIPULATED IN EXHIBIT P1.

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RESPONDENTS' EXHIBITS NIL

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/TRUE COPY/

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P.A. TO JUDGE.

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PIUS C.KURIAKOSE & BABU MATHEW P.JOSEPH JJ. -----------------------O.P.(FC) . NO. 3807 OF 2012

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Dated this the 21^st day of November, 2012

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JUDGMENT

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Pius C.Kuriakose,J

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This original petition under Article 227 is filed by the petitioner before the Family Court, Ernakulam in Divorce O.P.1804/2009 (now made over to the Muvattupuzha Family Court and renumbered there as O.P. No.490/2012) seeking a direction to the Family Court, Muvattupuzha to accept the affidavit submitted by the petitioner in lieu of her oral evidence and grant a decree of divorce by a mutual consent as prayed for in Ext.P1 without insisting on the personal presence of the petitioner.

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On hearing the submissions of Sri.K.C.Eldho, the learned counsel for the petitioner, for admission we issued notice on admission by special messenger to the respondent. He

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has now entered appearance through Advocate. We called for the lower court records and the records are available. The

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O.P.(FC) No.3807/2012 2

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records will show that for more than six months have elapsed since the petition for dissolution of marriage by mutual consent was filed under Section 10A of the Divorce Act by the parties. The various averments in the above original petition satisfy the requirements of Section 10A. It is not disputed that the petitioner is presently in Australia and insisting upon her coming down to Muvattupuzha for giving oral evidence to prove that she has not withdrawn from the original petition will result in extreme hardship to the petitioner.

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The learned counsel for the respondent also would fairly submit that it will suffice if the affidavit of the petitioner, which is already submitted to the Family Court, Muvattupuzha is acted upon by the learned Family Court. The learned counsel's only submission was that the original power of attorney, on the basis of which the release deed which is mentioned in paragraph 3 of the Divorce O.P. was executed in favour of the respondent, has not been handed over to the respondent. The learned counsel requested that direction be issued for handing over of the original of the power of attorney.

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Under the above circumstances, we are of the view that

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O.P.(FC) No.3807/2012

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the original petition can be allowed by passing the following directions;

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1).The petitioner shall immediately

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handover the original of the power of attorney, on the strength of which release deed which is mentioned in paragraph 3 of the Divorce O.P.

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is executed, in favour of the respondent.

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2). The Family Court, Muvattupuzha will

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accept the affidavit of the petitioner already filed before that court in support of the averments in O.P. No.490/2012 without insisting on the personal appearance and the oral evidence of the petitioner and pass orders considering the original petition favourably.

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Needful in compliance with the above

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direction shall be done by the learned Presiding Officer of the Family Court at the earliest and

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at any rate within one week of receiving a copy of this judgment.

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The petitioner through her power of attorney holder and the

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O.P.(FC) No.3807/2012

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respondent in person will be present before the Family Court, Muvattupuzha on 1^st December 2012.

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Sd/-

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PIUS C.KURIAKOSE, JUDGE

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Sd/BABU MATHEW P.JOSEPH, JUDGE.

Dpk

/True copy/

P.A to Judge.

O.P.(FC) No.3807/2012 5

Smitha Thomas v. Biju Varghese

Case brief

What is this about?

What did the court decide?

Smitha Thomas v. Biju Varghese

Case brief

What is this about?

What did the court decide?

What the court decided

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