Allowed

Innocent Francis Papali Alias Innocent Sebastain v. Mereen Manuel Alias Maria Mercy

Kerala HC5 Jul 2022OP (FC)/341/2022

Case brief

AI extract

What is this about?

The High Court of Kerala permitted the petitioner to withdraw a petition for declaring marriage null and void, granting liberty to file a fresh divorce petition based on cruelty under the Divorce Act, noting the distinct causes of action.

What did the court decide?

Petitioner permitted to withdraw original petition for nullity of marriage with liberty to file a fresh petition for divorce under the Divorce Act.

Innocent Francis Papali Alias Innocent Sebastain Vs… — Matrimonial and Divorce | Kerala HC (2022)

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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 MRS. JUSTICE SOPHY THOMAS

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TUESDAY, THE 5^TH DAY OF JULY 2022 / 14TH ASHADHA, 1944 OP (FC) NO. 341 OF 2022

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AGAINST THE ORDER IN IA 701/2022 IN OP 2337/2012 OF FAMILY COURT,ERNAKULAM

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PETITIONER/S:

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INNOCENT FRANCIS PAPALI ALIAS INNOCENT SEBASTAIN, AGED 46 YEARS, S/O.FRANCIS, RESIDING AT PLOT NO.A 20, SANTHI NAGAR ANNEXE, RAJAGIRI P.O., SOUTH KALAMASSERY, KOCHI, PIN – 683104.

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BY ADVS. ASWATHI C. MINI K. P.J.ANTONY JOSEPH MARIADAS

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RESPONDENT/S:

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MEREEN MANUEL ALIAS MARIA MERCY, AGED 40 YEARS, D/O.LATE MANUEL, VALIYAPARAMBIL, PULIKKAPPULLY, N. K. SREEDHARAN ROAD, PACHALAM P.O, ERNAKULAM, PIN - 682 012,

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REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN MRS.DAISY K. R, W/O.LATE MANUEL, VALIYAPARAMBIL, PULIKKAPPULLY, N. K. S REEDHARAN ROAD, PACHALAM P.O, ERNAKULAM, PIN – 682012.

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BY ADVS. V.K.BALACHANDRAN Vadakke Kulathur DRISHYA K.PRAKASH(K/001576/2018)

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC) No.341/2022 2

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JUDGMENT

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A.Muhamed Mustaque, J .

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This original petition is at the instance of the petitioner in O.P.No.2337/2012 on the file of the Family Court, Ernakulam. The said original petition was filed to declare that the marriage solemnised between the petitioner and the respondent is null and void. Thereafter, when the case was posted for trial, the petitioner filed a petition for amendment seeking to incorporate the grounds for divorce on the ground of cruelty. This has been dismissed stating that the amendment is belated.

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Today, when the matter came before us, the learned counsel for the petitioner submits that the petitioner may be permitted to withdraw the petition filed before the Family Court and to file a fresh petition for divorce on the ground of cruelty. This has been opposed by the learned counsel for the respondent stating that the petitioner has already filed a petition for the same before the Family Court and thereafter, he withdrew the petition. It is to be noted that the cause of action to file a case

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O.P.(FC) No.341/2022 3

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for declaring the marriage void is distinct from the cause of action available to dissolve the marriage on any grounds envisaged under the Divorce Act. The respondent cannot oppose such prayers inasmuch as it is for the petitioner to decide whether he is proceeding with the petition for declaring the marriage as null and void or not.

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We are of the considered view that the petitioner can be permitted to withdraw the original petition pending before the Family Court and with liberty to file a petition for divorce on any enumerated grounds under the Divorce Act. The original petition is allowed. The Family Court is directed to dispose of O.P.No.2337/2012 as dismissed as withdrawn. It is made clear that we give liberty to the petitioner to file a fresh petition for divorce in

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accordance with the Divorce Act.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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Sd/-

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SOPHY THOMAS, JUDGE

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O.P.(FC) No.341/2022 4

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APPENDIX OF OP (FC) 341/2022

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PETITIONER EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE SAID IA NO. 1702/2021 FILED IN OP NO.2337/2012 BY THE PETITIONER PRAYING FOR PERMISSION TO WITHDRAW THE OP WITH LIBERTY TO FILE A FRESH ONE.

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EXHIBIT P2 THE TRUE COPY OF THE OBJECTION DATED 25-032021 SO FILED BY THE RESPONDENT IN IA NO.1702/2021 IN OP NO.2337/2012. EXHIBIT P3 THE TRUE COPY OF THE IA NO.701/2022 FILED IN OP NO. 2337/2012 BY THE PETITIONER PRAYING FOR AMENDMENT. EXHIBIT P4 THE TRUE COPY OF THE OBJECTION DATED 16-022022 FILED BY THE RESPONDENT IN IA NO.701/2022 IN OP NO.2337/2012.

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EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 28-02-2022 PASSED BY THE HON'BLE FAMILY COURT, ERNAKULAM, DISMISSING IA NO.701/2022 (IN OP NO. 2337/2012).

Innocent Francis Papali Alias Innocent Sebastain v. Mereen Manuel Alias Maria Mercy

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Innocent Francis Papali Alias Innocent Sebastain v. Mereen Manuel Alias Maria Mercy

Case brief

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