Allowed

M. Kesavadas v. Sajini

Kerala HC16 Oct 2023Mat.Appeal/150/2023

Case brief

AI extract

What is this about?

The High Court set aside the Family Court's order dismissing an application to restore a divorce petition. The Court held that the National Lockdown prevented the petitioner from filing the application on time and directed the matter to be adjudicated on merits. Cost of ₹10,000 was imposed on the petitioner.

What did the court decide?

Impugned order set aside; divorce petition restored subject to payment of cost of ₹10,000 to the respondent.

M. Kesavadas Vs Sajini — Matrimonial and Divorce | Kerala HC (2023)

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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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 16^TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 MAT.APPEAL NO. 150 OF 2023

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AGAINST THE ORDER DATED 26/8/22 IN I.A.1/21 & I.A.2/21 IN OP 823/2015 OF FAMILY COURT, PALAKKAD

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APPELLANT/PETITIONER:

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M. KESAVADAS, AGED 46 YEARS, S/O. SATHYABHAMA, MADATHODI HOUSE, PUTHUCODE P.O.KANNAMBRA VILLAGE & DESOM, ALATHUR TALUK, PALAKKAD DISTRICT-678687.REP. BY THE POWER OF ATTORNEY HOLDER MR.RAMACHANDRA PANICKER AGED 60 YEARS, S/O. NARAYANAN NAIR, RESIDING AT 483, SREE VILLA, PATHYLTHARA, CHITTILAMCHERRY P.O. CHITTUR TALUK, PALAKKAD DISTRICT, PIN – 678 704.

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BY ADVS. SANTHOSH P.PODUVAL R.RAJITHA CHITHRA S.BABU

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RESPONDENT/RESPONDENT:

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SAJINI, D/O.LALITHA , ALATHUR HOUSE, 15/417, TAGORE NAGAR, NEAR KALAMANDAPAM, PALAKKAD VILLAGE, PALAKKAD DISTRICT -, PIN – 678 001.

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BY ADVS. BINOY VASUDEVAN R.MANIKANTAN(M-697)

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMIT RAWAL & C.S.SUDHA, JJ.

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Mat Appeal No.150 of 2023

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Dated this the 16^th day of October, 2023

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J U D G M E N T

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Amit Rawal, J.

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The present petition is directed against the order dated 26.08.2022 of Family Court, Palakkad whereby the application for setting aside the judgment and decree dated 03.12.2020 has been dismissed.

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Marriage between the petitioner/husband and respondent/wife was solemnized on 31.08.2014 as per the customary rites and ceremonies of Hindu religion. Husband instituted the petition O.P.No.823/2015, after almost one year of the marriage for dissolution of marriage. The matter was pending and after five years, fixed for the evidence of the petitioner/ husband on 03.12.2020. Petitioner did not appear and O.P. was dismissed for default on the ground that on a previous occasion also it was dismissed for default and restored on 23.03.2019. Trial court also dismissed the application for condonation of delay on the ground that there was no justifiable explanation in seeking the condonation of delay of 220 days.

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Learned counsel appearing on behalf of the petitioner

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contended that nation-wide lock down was effected from 22.02.2020 and there was an order of granting concession in the pending litigations. The order continued till 28.03.2022 whereas, the application for restoration was filed on 06.08.2022, thus, a delay of 220 days ought to have been condoned, therefore, the order is not sustainable in the eyes of law. Even otherwise the matter can be decided on merits subject to any terms and conditions this Hon'ble Court may deem fit.

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On the other hand learned counsel appearing on behalf of the respondent/wife submitted that the conduct of the husband as noticed in the impugned order is writ large for, several times the petition was dismissed for default. Such a lackadaisical approach cannot be permitted to be perpetuated for infinite period and urged this court for dismissal of the petition.

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We have heard counsel for the parties and appraised the paper book. No doubt the divorce petition was instituted in 2015 and an earlier occasion, was dismissed for default on 07/03/2018, that is, three years after the institution. But on submission of the application, was restored on file vide order dated 23/03/2019. Matter was listed for evidence on 07/05/2019

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and it continued to be adjourned. Ultimately on 03.12.2020, it was dismissed for default on the ground of absence of the petitioner, though he was represented through counsel. COVID had a second wave and few days thereafter there was lock down. Petitioner was prevented from submitting the application within the stipulated period, in this process the delay as submitted in the application occurred, but could not have been dismissed for, the Supreme Court had already granted grace period to all the litigants from the rigours of limitation. This aspect has totally been ignored. Though the approach of the petitioner in not examining himself had been tardy, we are of the view that the matter should be adjudicated on merits.

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For the aforementioned reasons, the impugned order is set aside, O.P. is restored subject to cost of ₹10,000/- to be paid to the respondent/wife.

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Sd/-

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AMIT RAWAL JUDGE

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Sd/C.S.SUDHA JUDGE

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M. Kesavadas v. Sajini

Case brief

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M. Kesavadas v. Sajini

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