Allowed

Thomas John v. Maria Joseph

Kerala HC29 Mar 2021Mat.Appeal/122/2021

Case brief

AI extract

What is this about?

This judgment dismisses matrimonial appeals and opers concerning uncontested divorce proceedings. The High Court, noting mutual consent and prolonged separation, dissolved the marriage under Section 10A of the Divorce Act, 1869, while waiving the statutory cooling-off period.

What did the court decide?

Dissolution of marriage by decree of divorce between Maria Joseph and Thomas John on mutual consent.

Thomas John Vs Maria Joseph — Matrimonial and Divorce | Kerala HC (2021)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

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Mat.Appeal.No.986 OF 2017

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AGAINST THE ORDER IN OP 408/2013 OF FAMILY COURT,THRISSUR

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APPELLANT/RESPONDENT:

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MARIA JOSEPH

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AGED 30, D/O.ARAKKAL NELLISSERY A.N.JOSEPH, GREEN PARK AVENUE, THIRUVAMBADI P.O., THRISSUR DISTRICT-680022.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT/PETITIONER:

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THOMAS JOHN AGED 36, S/O.AKKAPADICKAL A.V.JOHN, KODIKULAM P.O., THODUPUZHA, IDUKKI DISTRICT-685582.

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R1 BY ADV. SRI.BOBY MATHEW R1 BY ADV. SMT.K.MEERA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2021, ALONG WITH Mat.Appeal.122/2021, OP (FC).501/2017(R), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.986/17 & conn.cases

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-:2:-

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

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Mat.Appeal.No.122 OF 2021

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AGAINST THE ORDER IN OP 408/2013 DATED 25-01-2017 OF FAMILY COURT,THRISSUR

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APPELLANT/PETITIONER:

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THOMAS JOHN AGED 34 YEARS SON OF A.V.JOHN, AKKAPPADICKAL HOUSE, KODIKULAM P.O.THODUPUZHA-685 582, IDUKKI DISTRICT, DULY REPRESENTED BY HIS POWER OF ATTORNEY HOLDER RAJESH ABRAHAM.

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BY ADVS. SMT.K.MEERA SRI.BOBY MATHEW RESPONDENT/RESPONDENT:

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MARIA JOSEPH AGED 30 YEARS DAUGHTER OF A.N. J.JOSEPH, ARACKAL NELLISSERY, GREEN PARK AVENUE PHASE 11, THIRUVAMBADY P.O.THRISSUR-680 022, THRISSUR DISTRICT

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R1 BY ADV. SRI.G.SREEKUMAR (CHELUR)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2021, ALONG WITH Mat.Appeal.986/2017, OP (FC).501/2017(R), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.986/17 & conn.cases

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-:3:-

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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 A.MUHAMED MUSTAQUE

¶38

¶39

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

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OP (FC).No.501 OF 2017

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AGAINST THE ORDER IN OP 408/2013 OF FAMILY COURT,THRISSUR

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PETITIONER:

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MARIA JOSEPH

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AGED 30, D/O. ARAKKAL NELLISSERY A.N. JOSEPH, GREEN PARK AVENUE, TIRUVAMBADI P.O., THRISSUR DISTRICT - 680 022.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT:

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THOMAS JOHN AGED 36, S/O. AKKAPADICKAL A.V. JOHN, KODIKULAM P.O., THODUPUZHA, IDUKKI DISTRICT - 685 582.

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R1 BY ADV. SRI.BOBY MATHEW R1 BY ADV. SMT.K.MEERA

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 29.03.2021, ALONG WITH Mat.Appeal.986/2017, Mat.Appeal.122/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.986/17 & conn.cases

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Mat.Appeal Nos.986/2017, 122/2021 & OP(FC) 501/2017 Dated this the 29^th day of March, 2021

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A.Muhamed Mustaque,J.

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These cases arise out of the disputes between husband and wife in a divorce proceedings initiated by the husband before the Family Court, Thrissur in OP No.408/2013. In that proceedings, wife also raised a counter claim. The counter claim was brought in by way of an amendment in written statement. Though counter claim was allowed to be incorporated in the written statement, wife failed to carry out necessary amendment in the written statement. Consequently the Court refused to consider the counter claim. A review petition was filed to restore counter claim. That was also dismissed. Divorce petition filed by the husband has been dismissed. Challenging the same, Mat.Appeal No.122/2021 was filed by the husband. Wife also filed Mat.Appeal No.986/2017 challenging dismissal of the counter claim. As an abundant caution, wife also filed OP(FC) No.501/2017 challenging the dismissal of review

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Mat.Appeal No.986/17 & conn.cases

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-:5:-

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filed to restore the counter claim.

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While these matters are pending, parties decided to separate each other by filing a petition. Accordingly, IA No.1/2021 was filed before this court. Both parties agreed for divorce by mutual consent invoking Section 10A of the Divorce Act, 1869. Joint petition has been filed by the wife Maria Joseph in person and on behalf of husband, Thomas John, his power of attorney holder, Rajesh Abraham signed the petition.

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Taking note of the fact that the parties are living separately since 2012 onwards and proceedings are pending before the Family Court since 2013, we are of the view that the statutory cooling off period can be waived. Accordingly, we waive the statutory period. Wife Maria Joseph appeared before us through online. Her counsel Sri.Sreekumar G. Chelur identified her. Sri.Thomas John, who is now in Germany also came online. His counsel Smt.Meera K. identified him. We also interacted with the parties. Parties are well educated and they are firm in their decision to separate the marital tie.

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In the light of the joint petition filed before this court, we are of the view that the marriage

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Mat.Appeal No.986/17 & conn.cases

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can be dissolved based on mutual consent. Accordingly, we dissolve the marriage between Maria Joseph and Thomas John solemnized on 17/11/2012 by a decree of divorce. The parties are free to agitate other disputes, if any, between them before appropriate forum. The divorce granted by mutual consent will not stand in the way of asserting or denying their claim in appropriate forum. IA No.1/2021 shall form part of this judgment.

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The appeals and the OP are disposed of accordingly.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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Mat.Appeal No.986/17 & conn.cases

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-:7:-

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APPENDIX OF OP (FC) 501/2017

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PETITIONER'S EXHIBITS:

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EXHIBIT P1

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A TRUE COPY OF THE COMMON ORDER PASSED IN O.P.NO. 408 OF 2013 AND M.C.NO. 316 OF 2014 DATED 25.01.2017 ON THE FILE OF THE FAMILY COURT, THRISSUR.

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EXHIBIT P2

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A TRUE COPY OF THE ORDER PASSED IN I.A.NO. 1095, 2305 AND 2304 OF 2017 IN O.P.NO. 408 OF 2013 DATED 31.07.2017 ON THE FILE OF THE FAMILY COURT, THRISSUR.

Thomas John v. Maria Joseph

Case brief

What is this about?

What did the court decide?

Thomas John v. Maria Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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