Disposed

Divakara v. Bindu K. T.

Kerala HC22 Mar 2021OP (FC)/46/2020

Case brief

AI extract

What is this about?

This appeal challenges the Family Court opener's finding that dismissal of a prior divorce petition on non-prosecution does not bar a fresh petition due to variation in cruelty allegations. The High Court found no jurisdictional error to interfere and disposed of the current petition reserving liberty to challenge if aggrieved.

What did the court decide?

The original petition is disposed of with liberty reserved to challenge the Family Court order if finally aggrieved.

Divakara Vs Bindu K. T. — 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 MR.JUSTICE DR. KAUSER EDAPPAGATH

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MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

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OP (FC).No.46 OF 2020

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AGAINST THE ORDER/JUDGMENT IN OP 76/2019 DATED 12-12-2019 OF FAMILY COURT, KASARAGOD

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PETITIONER:

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DIVAKARA, AGED 51 YEARS, S/O. KRISHNA, RESIDING AT BOOPA'S COMPOUND, KARANDAKAD, KASARGOD VILLAGE AND P. O., KASARGOD DISTRICT.

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BY ADVS. SHRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU

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RESPONDENT:

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BINDU K. T., AGED 41 YEARS, D/O. ASHOK KUMAR K T, RESIDING AT SATHREEYA, EROLE, CHANDRAPURAM, P. O. MYLATTY, KASARGOD DISTRICT - 671 319.

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R1 BY ADV. SMT.HEMALATHA R1 BY ADV. SRI.BINU GEORGE

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (FC).No.46 OF 2020

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JUDGMENT

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Dated this the 22nd day of March 2021

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A.Muhamed Mustaque, J

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This original petition was filed challenging the order of the Family Court, Kasargod on an application raising maintainability of O.P. No.76 of 2019.

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The above original petition was filed by the respondent herein, the wife of the petitioner. This original petition was filed by the wife for divorce.

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The petitioner herein, who is the respondent in the above case, raised an objection in regard to the maintainability. The objection regarding the maintainability was on the ground that the respondent had earlier filed an O.P. No.231 of 2017 and the same was

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OP (FC).No.46 OF 2020

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dismissed for non prosecution and therefore, subsequent petition on the same ground is barred by the principles of res judicata.

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The Family Court, by a detailed order, overruled the objection. The Family Court found that dismissal of earlier original petition is not a bar in instituting a fresh original petition. It is further observed that there was variation of allegation regarding cruelty as alleged in the earlier original petition. The Family Court, though observed that no new ground of cruelty was raised in the present petition, the dismissal of earlier original petition is not res judicata.

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We may not be justified in invoking the power under Article 227 of the Constitution of India to interfere with such an order. The petitioner can be reserved with the liberty to challenge the above order, if the petitioner is

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OP (FC).No.46 OF 2020

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finally aggrieved by the outcome of the proceedings. We do not find any jurisdictional error in answering the issue. Therefore, reserving the liberty to challenge the above order, if the petitioner is finally aggrieved, this original petition is disposed of.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

DR. KAUSER EDAPPAGATH

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JUDGE

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OP (FC).No.46 OF 2020

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..5..

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1

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TRUE COPY OF PETITION IN OP NO.76/2019 ON THE FILE OF THE FAMILY COURT, KASARGOD.

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EXHIBIT P2 TRUE COPY OF COUNTER IN OP NO.76/2019

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EXHIBIT P3 TRUE COPY OF IA NO.450/2019.

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EXHIBIT P4 TRUE COPY OF COUNTER IN IA NO.450/2019.

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EXHIBIT P5 TRUE COPY OF ORDER DATED 12.12.2019 IN IA NO.450/2019 IN OP NO.76/2019.

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EXHIBIT P6 TRUE COPY OF PETITION IN OP NO.231/2017.

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EXHIBIT P7 TRUE COPY OF ORDER DATED 18.7.2018 IN OP NO.231/2017.

Divakara v. Bindu K. T.

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Divakara v. Bindu K. T.

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