Allowed

Leelamma George @ Alice Jose v. Jero David (Died)

Kerala HC10 Jul 2019OP (FC)/382/2019

Case brief

AI extract

What is this about?

The High Court ordered an original petition for matrimonial relief at the Family Court to be set aside, allowing the petitioner to set aside a previous dismissal on depositing specific costs within one month and requiring disposal within three months.

What did the court decide?

Impugned order set aside; I.A. No. 875 of 2018 allowed on deposit of Rs. 7,000 within one month; Petitioner to also deposit Rs. 1,000.

Leelamma George @ Alice Jose Vs Jero David (Died) — Matrimonial and Divorce | Kerala HC (2019)

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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.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941

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OP (FC).No.382 of 2019

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AGAINST THE ORDER IN OP(DIV) 1130/2016 of FAMILY COURT, MAVELIKKARA

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PETITIONER/PETITIONER/RESPONDENT:

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LEELAMMA GEORGE @ ALICE JOSE AGED 45 YEARS D/O. GEORGE, JEWAL HOMES KEB TOWN FLAT, MUTTAMBALAM MURI, KOTTAYAM TALUK, KOTTAYAM.

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BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA

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RESPONDENT/RESPONDENT/PETITIONER/ADDITIONAL RESPONDENTS 2 & 3:

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1 JERO DAVID (DIED) AGED 50 YEARS, S/O. DAVID, KUTTIYIL VEETTIL, PALLIKKAL P.O, KATTANA, MURI, KATTANAM VILLAGE-690 503

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2 SHARON JERO,

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AGED 23, D/O. LATE JERO DVAID, KUTTIYIL VEETTILL, PALLIKKAL P.O, KATTANAM MURI, KATTANAM VILLAGE-690 503

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3 SHONE DAVID

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AGED 21, S/O. LATE JERO DVAID, KUTTIYIL VEETTILL, PALLIKKAL P.O, KATTANAM MURI, KATTANAM VILLAGE-690 503

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BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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JUDGMENT

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K. Harilal,J.

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The petitioner is the respondent in O.P. No. 1130 of 2016

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OP(FC) No. 382/2019 : 2 :

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filed by the first respondent herein, who is no more. The respondents 2 and 3 are the legal heirs of the first respondent. The aforesaid OP was filed seeking a declaration that the marriage between the petitioner and the first respondent is null and void. On 14.02.2018, he was set ex parte. Later, he appeared before the Family Court and filed I.A. No. 875 of 2018 for setting aside the ex parte decree. The said IA was allowed on 11.07.2018 on condition to pay Rs.1000/- as cost within 15 days and to produce receipt. The case was posted to 16.08.2018. On that day also, the petitioner was absent and she has not paid the cost as directed by the Family Court. Hence, the petition was dismissed on 16.08.2018. Thereafter, the petitioner filed I.A. No. 2247 of 2018 to review the order dated 16.08.2018. That petition was also dismissed. Aggrieved by the dismissal of the petition to review the order dismissing the application to set aside the ex parte order, she has approached this Court.

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OP(FC) No. 382/2019 : 3 :

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Heard the learned counsel for the petitioner and the

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learned counsel for the respondent.

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It is the case of the petitioner that he could not pay

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the cost as he was an affected person in the flood occurred in Kerala. The Family Court, after analysing his contention, dismissed the application to review the earlier order on a finding that there is no bona fides in the contention that he could not pay the cost due to the flood. We do not find fault with the Family Court on arriving at such a finding.

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However, we are inclined to take a liberal view in different perspective. Adjudication of lis on merits is always desirable rather than dismissal on technicalities. When the cause of substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred rather than technical disposal of the lis.

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In the above view, we are inclined to allow this OP(FC)

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on terms. The impugned order will stand set aside and I.A No.

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OP(FC) No. 382/2019 : 4 :

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875 of 2018 would stand allowed on deposit of Rs.7000/(Rupees Seven Thousand only) before the Family Court, Mavelikkara as cost within a period of one month from today. The respondents are allowed to realise the said amount from the court as cost to him. That apart, the petitioner shall also deposit Rs.1000/- (Rupees one thousand only) as ordered earlier by the Family Court. In the event of failure, the impugned Ext.P6 order would stand in force as such. The Family Court shall proceed with the Original Petition and dispose of the same at the earliest, at any rate, within a period of three months' from the date of restoration of the original petition.

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This Original Petition is disposed of as above.

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sd/- K. HARILAL, JUDGE.

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sd/- ANNIE JOHN, JUDGE.

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OP(FC) No. 382/2019 : 5 :

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE PETITION IN O.P. NO. 1130/2016 FILED BEFORE THE FAMILY COURT, MAVELIKKARA
EXHIBIT P2	A TRUE COPY OF THE DEATH CERTIFICATE OF JERO DAVID DATED 27.12.2017.
EXHIBIT P3	A TRUE COPY OF I.A. NO. 875/2018 IN OP NO. 1130/2016
EXHIBIT P4	A TRUE COPY OF THE APPLICATION AS I.A. NO. 2247/2018 IN O.P. NO. 1130/2016.
EXHIBIT P5	A TRUE COPY OF THE OBJECTION FILED BY ADDL. RESPONDENT 2 AND 3.
EXHIBIT P6	A TRUE COPY OF THE ORDER OF THE FAMILY COURT, MAVELIKKARA IN I.A. NO. 2247/2018 IN O.P. NO. 1130/2016

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RESPONDENT'S EXHIBITS:
EXHIBIT R2(a)	A TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE DIOCESAN REGISTRAR.
EXHIBIT R2(b)	A TRUE COPY OF THE FIR IN CRIME NO.475/2016 OF VALLIKUNNAM POLICE STATION.
EXHIBIT R2(c)	A TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 10/1/2017 ISSUED FROM MARTHOMA SYRIAN CHURCH, KOLLAKA.
EXHIBIT R2(d)	A TRUE COPY OF THE FIR IN CRIME NO 3634/2016 OF CHAVARA POLICE STATION.
EXHIBIT R2(e)	A TRUE COPY OF THE NEWS PAPER REPORT IN THE MALAYALA MANORAM DAILY DATED 17/12/2016.
EXHIBIT R2(f)	A TRUE COPY OF THE NEWS PAPER REPORT IN THE MALAYALA MANORAMA DAILY DATED 18/02/2018.

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/True Copy/

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PS to Judge.

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Leelamma George @ Alice Jose v. Jero David (Died)

Case brief

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Leelamma George @ Alice Jose v. Jero David (Died)

Case brief

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