Allowed

Rahim Mogral @Abdul Raheem, v. Asma K.

Kerala HC6 Feb 2023Mat.Appeal/559/2022

Case brief

AI extract

What is this about?

The Kerala High Court allowed a matrimonial appeal against an ex parte decree of dissolution of marriage dismissed for failing to record satisfaction and assign reasons. The decree was set aside with costs to the wife and the matter remitted.

What did the court decide?

The decree dated 30.11.2021 in O.P.No.469 of 2020 was set aside; appellant to pay Rs. 5,000 to respondent and matter remitted for fresh disposal.

Rahim Mogral @Abdul Raheem, Vs Asma K. — 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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 6^TH DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944

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MAT.APPEAL NO. 559 OF 2022

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AGAINST THE JUDGMENT DATED 30.11.2021 IN O.P.NO.469 OF 2020 ON THE FILES OF THE FAMILY COURT, KASARAGOD APPELLANT/RESPONDENT:

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RAHIM MOGRAL @ ABDUL RAHEEM, AGED 40 YEARS, S/O UMMALIMMA, R/AT NANGI KADAPURAM, MOGRAL POST, KAIPADY VILLAGE, MANJESHWAR TALUK, KASARAGOD DISTRICT, PIN - 671321, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MOHAMMED M., AGED 52 YEARS, S/O ABDULLA. MOGRAL, RESIDING AT NANGI KADAPPURAM, MOGRAL VILLAGE, MOGRAL KASARAGOD TALUK, KASARAGOD DISTRICT - 671321.

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BY ADVS. BIJI MATHEW R.LAIJU C.C.ANOOP SARUN RAJAN ROOPESH N.R. RASHEEK AHAMED B.A.

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RESPONDENT/PETITIONER:

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ASMA K., AGED 28 YEARS D/O KUNHIMAHIN, R/AT KATTATHADKA HOUSE, PUTHIGE POST, EDNAD VILLAGE, MANJESHWAR TALUK, KASARAGOD DISTRICT – 671321.

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Mat.Appeal No.559 of 2022

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BY ADVS. A.ARUNKUMAR

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PRATHITHA MARIYAM THOMAS

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 30.01.2023, THE COURT ON 06.02.2023 DELIVERED THE FOLLOWING:

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Mat.Appeal No.559 of 2022

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JUDGMENT

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P.G. Ajithkumar, J.

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The respondent filed O.P.No.469 of 2020 before the Family Court, Kasaragod seeking dissolution of her marriage with the appellant, which was solemnised on 19.08.2013. An

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exparte decree was passed in that O.P. on 30.11.2021. This appeal under Section 19(1) of the Family Courts Act, 1984 is filed by the appellant, to assail the said exparte decree.

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There was a delay of 64 days in filing the appeal. As per order dated 27.01.2023 delay was condoned. On 06.01.2023, this Court referred both parties to mediation to be held at the District Mediation Centre, Kasaragod on 16.01.2023 at 11.00 a.m. The learned counsel appearing on either side reported that the mediation failed.

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Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

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Indisputably, the decree dated 30.11.2021 is an exparte one. Contentions of the appellant is that the said

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Mat.Appeal No.559 of 2022

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decree was passed without assigning any reason and in fact, it was the respondent who deserted the matrimonial home. When the Family Court failed to record its satisfaction regarding existence of the grounds urged by the respondent for dissolution of the marriage, the decree has become invalid, and therefore the same is liable to be set aside. The learned counsel appearing for the appellant would submit that there was sufficient reason for the non-appearance of the appellant before the Family Court; however, the decree being illegal, this appeal has been filed.

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The learned counsel appearing for the respondent, on the other hand, would submit that the appellant without filing any application for setting the decree before the Family Court, has filed this appeal, which is not legal. The learned counsel further would submit that sufficient evidence was tendered by the respondent and the decree was passed on the basis of that evidence, and therefore the same is not liable to be interfered with.

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Mat.Appeal No.559 of 2022

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A decree of dissolution of marriage was sought on the grounds enumerated in Sections 2(ii), (iv), (viii)(a), (d) and (ix) of the Dissolution of Muslim Marriage Act, 1939. It is seen that oral testimony of PW1, the respondent, was recorded and Ext.A1 marriage certificate and Exts.A2, order in M.C.No.60 of 2017 of the Judicial First Class Magistrate Court-II, Kasaragod were received in evidence. But the Family Court did not advert to such evidence while ordering dissolution of marriage. It is essential to record satisfaction supported by sufficient reasons before ordering dissolution of a marriage. In that view of the matter, the impugned decree is not legal and unsustainable in law.

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The appellant could have availed the remedy available under Order IX, Rule 13 of the Code of Civil Procedure, 1908. Instead, he approached this Court by filing this appeal and dragged the respondent-wife to this Court, for no fault of her. Hence, we are of the view that while setting aside the decree, the inconvenience caused to the respondent has to be compensated.

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Mat.Appeal No.559 of 2022

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Accordingly, we allow this appeal and the decree dated 30.11.2021 in O.P.No.469 of 2020 on the file of the Family Court, Kasaragod is set aside on the condition that the appellant shall pay a cost of Rs.5,000/- (Rupees five thousand only) to the respondent within three weeks. The matter is remitted to the Family Court for fresh disposal in accordance with law.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Rahim Mogral @Abdul Raheem, v. Asma K.

Case brief

What is this about?

What did the court decide?

Rahim Mogral @Abdul Raheem, v. Asma K.

Case brief

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What the court decided

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