Allowed

Biby Thomas v. Jomon George

Kerala HC3 Oct 2023Mat.Appeal/59/2023

Case brief

AI extract

What is this about?

In this matrimonial appeal, the High Court of Kerala disposed of the appeal by setting aside the order dismissing the wife's application to condone delay and set aside an ex-parte decree for restitution of conjugal rights, restoring the original OP for trial on merits.

What did the court decide?

Set aside the order of the lower court and the ex-parte judgment and decree; restore O.P.No.128/2018 and give parties three weeks to complete pleadings.

Biby Thomas Vs Jomon George — 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 TUESDAY, THE 3^RD DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 MAT.APPEAL NO. 59 OF 2023

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AGAINST THE COMMON ORDER DATED 09.12.2021 IN I.A.NO.1/2020 & 2/2020 IN OP 128/2018 ON THE FILE OF FAMILY COURT, KOTTAYAM. APPELLANT/PETITIONER/RESPONDENT:

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BIBY THOMAS AGED 36 YEARS DAUGHTER OF M.C THOMAS, MUKALEL HOUSE, AMALAGIRI PO, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT,PIN - 686561 REPRESENTED BY HER POWER OF ATTORNEY HOLDER, M C THOMAS, AGED 67 YEARS, SON OF CHACKO, MUKALEL HOUSE, AMALAGIRI PO, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686561

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BY ADVS. ANANTHAKRISHNAN A. KARTHA SREEKUMAR G. ANANTHASANKAR A. KARTHA ANIL D.KARTHA SURESH G. SHARATH ELDO PHILIP

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RESPONDENT/RESPONDENT/PETITIONER:

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JOMON GEORGE AGED 41 YEARS SON OF GEORGE, KOTTIYATH HOUSE, ATHIRAMPUZHA PO, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686562

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BY ADVS. C.Ajith Kumar P.PREETHA(K/1501/1999)

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON

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03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal No.59 of 2023

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JUDGMENT

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Dated this the 3^rd day of October, 2023

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Amit Rawal, J.

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Present appeal is directed against the order dated 09/12/2021 whereby I.A.No.2/2020 for condoning the delay of 276 days in filing I.A.No.1/2020 seeking to set aside the ex-parte judgment and decree dated 24/04/2019 in O.P.No.128/2018, granting restitution of conjugal rights to the husband, has been dismissed on the ground that the petitioner/wife has not been able to gave plausible explanation in not appearing before the family court for contesting the petition and also for the delay of 276 days.

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Owing to the matrimonial discord between the husband and wife, respondent/husband preferred O.P.No.128/2018 for restitution of conjugal rights by invoking jurisdiction of Section 9 of the Family Courts Act, 1984. The petitioner/wife did not appear which resulted into an exparte judgment and decree dated 24/04/2019. Learned counsel appearing on behalf of the petitioner submitted that the power of attorney holder who was given the power to appear and contest the case was laid up due to brain stroke and therefore could not appear and contest the petition or inform his illness so that the petitioner could have made alternative

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Mat. Appeal No.59 of 2023

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arrangements, resulted into an ex-parte judgment and decree. The power of attorney holder was none other than her father who when recovered from the illness came to know about the ex-parte decree. It was on that account, application was filed for setting aside the decree along with the condonation of delay of 276 days. No harm and prejudice would be caused to the respondent/husband in case the ex-parte judgment and decree is set aside and the matter is permitted to be contested on merits before this Hon'ble Court. During the pendency of the O.P. the matter was referred to adalath which was not settled and thereafter the O.P. was dismissed in default and therefore he had no knowledge of the restoration of the petition.

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On the other hand learned counsel appearing on behalf of the respondent submitted that power of attorney holder had been appearing before the trial court when the matter was referred to adalath. The petitioner intentionally chose not to contest the petition and at present also she is in Saudi Arabia as petition has been filed thorugh the power of attorney holder. The reasons stated for granting restitution are perfectly legal and justifiable based upon the evidence brought on record and urged this Court for dismissal of the appeal.

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We have heard the learned counsel for both the parties and

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Mat. Appeal No.59 of 2023

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appraised the paper book.

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The facts disclosed with regard to the filing of the petition for restitution of conjugal rights under the provisions of the Family Courts Act as also appointment of the father of the petitioner/wife to contest the petition are not in dispute as the present petition has also been filed through a power of attorney which is in the record of this case. However, the petitioner miserably failed to place on record any material with regard to the ailment of the power of attorney holder or any record of the trial court as to whether the petition was dismissed in default.

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We do not intend to ponder upon the technicalities of law as the whole purpose is to give chance to party to contest the petition on merits. For the reason aforementioned, we set aside the order impugned and also the ex-parte judgment and decree. O.P.No.128/2018 is restored, parties

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would be given three weeks' time each to complete the pleadings and thereafter the main petition shall be decided as expeditiously as possible.

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Appeal stands disposed off.

Sd/-

AMIT RAWAL JUDGE

Sd/-

C.S.SUDHA JUDGE

Jms

Mat. Appeal No.59 of 2023

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APPENDIX OF MAT.APPEAL 59/2023

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PETITIONER ANNEXURES

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Annexure I A CERTIFIED COPY OF THE COMMON ORDER DATED 09-12-2021 IN IA 1/2020 AND IA 2/2020 IN OP 128/2018 BEFORE THE FAMILY COURT, ETTUMANOOR

Biby Thomas v. Jomon George

Case brief

What is this about?

What did the court decide?

Biby Thomas v. Jomon George

Case brief

What is this about?

What did the court decide?

What the court decided

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