Partly allowed

Radhika Sreekandath v. Vineeth Viswanathan

Kerala HC20 Nov 2023OP (FC)/195/2023

Case brief

AI extract

What is this about?

This High Court of Kerala allowed a petition by an aggrieved wife seeking condonation of delay and setting aside an ex parte divorce decree granted by the Family Court, Ernakulam. The Court viewed the wife’s absence as a desire for compromise rather than intentional default and directed parties to reappear for further hearings.

What did the court decide?

The impugned order of the Family Court dated 20.3.2023 and the ex parte judgment dated 15.7.2022 setting aside the ex parte decree.

Radhika Sreekandath Vs Vineeth Viswanathan — 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 20^TH DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 OP (FC) NO. 195 OF 2023

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AGAINST THE ORDER IN OP 2492/2020 OF FAMILY COURT,ERNAKULAM PETITIONER/PETITIONER IN IA/RESPONDENT IN OP:

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RADHIKA SREEKANDATH AGED 34 YEARS DAUGHTER OF K.K. SASIDHARAN NAMBIAR 'SREE GAYATHRI', MARADU P.O., ERNAKULAM (NOW AT BALHORN STRABE 16, 33102, PADERBORN, GERMANY) [REPRESENTED BY HER POWER OF ATTORNEY HOLDER K.K. SASIDHARAN NAMBIAR, 'SREE GAYATHRI', MARADU P.O., ERNAKULAM, PIN CODE: 682 304], PIN - 682304 BY ADVS. BOBY MATHEW K.MEERA

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RESPONDENT/RESPONDENT IN IA/PETITIONER IN OP:

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VINEETH VISWANATHAN AGED 34 YEARS SON OF VISWANATHAN NAIR 'USHUS', NEELIKULAM, KULASHEKARAPURAM P.O. KARUNAGAPPALLY, KOLLAM DISTRICT, PIN - 690544

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BY ADVS. M.K.DILEEPAN N.SANKARA MENON(S-152) S.KARTHIK MENON(K/2350/2019)

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THIS OP (FAMILY COURT) HAVING COME UP FOR HEARING ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (FC) NO. 195 OF 2023

JUDGMENT

Amit Rawal, J.

Present petition is directed against the impugned order dated 20.3.2023 rendered in I.A No.9385 of 2022 and I.A 9387 of 2022 in OP No.2492 of 2020 whereby the application of the petitioner, wife for setting aside the ex parte judgment and decree dated 15.7.2022 granting divorce to the respondent, husband has been dismissed.

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The facts in brief are as under; the marriage between the appellant and the respondent, husband was performed on 19.3.2014 as per the Hindu customary rites. There is no issue out of the wedlock .Stated to have resided at Thiruvananthapuram and at that time respondent, husband was working with Infosys, Thiruvananthapuram. Thereafter, as per the directions of the employer, had to leave for Germany on an assignment given by employer. It was alleged that the respondents-wife attitude towards him changed which resulted into a mental and physical cruelty, as enumerated in paragraph 2 of the divorce petition. Petitioner wife appeared and had taken adjournment on the ground that the talks of compromise were going on. The petition was filed in 2020. However believing that the compromise would be arrived

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OP (FC) NO. 195 OF 2023

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at, was not advised to file the counter statement as it would have indulged into allegation and counter allegations. Unfortunately was proceeded ex parte and OP No.2492 of 2020 seeking divorce on various grounds as stated above was allowed vide judgment and decree dated 15.7.2022. It is in that circumstances, an application bearing I.A Nos.9385 and 9387 of 2022 were filed seeking condonation of delay of 139 days and setting aside of ex parte judgment and decree.

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Learned counsel appearing on behalf of the petitioner submitted that the application for transfer of the divorce petition was filed in this Court which was transferred from Thiruvananthapuram to Ernakulam. She had been appearing therein but again was hopeful of arriving at some compromise. It is in that background, ex parte judgment and decree came to be passed. No harm and prejudice would be caused in case the delay of 139 days in condoning the delay of filing the application for setting aside the ex parte decree and judgment. and allowed to be contested on merits subject to any terms and conditions with this Hon'ble Court deems it appropriate.

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On the other hand, learned counsel appearing on behalf of the husband submitted that after the divorce petition, husband has performed the marriage and five opportunities ie., on

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OP (FC) NO. 195 OF 2023

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28.2.2022, 9.5.2022, 27.6.2022 and 12.7.2022 were given for filing the counter but no counter was filed. Trial court had no other option but to proceed the petitioner, ex parte, resulted into ex parte decree. Her conduct would reveal that she had been extending both physical and mental cruelty and it is on that aspect divorce has been granted. There is no explanation of seeking condonation of delay of 139 days. The impugned order is perfectly legal and justified and do not call for any interference.

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We have heard the learned counsel for the parties and appraised the paper book and of the view that it is a fit case where the impugned order and exparte judgment is liable to be set aside. Wife was hopeful of seeking some compromise or reproachment, and keeping in view this aspect did not intend to indulge into mud slinging or character assassination of the husband though the husband had sought the divorce on the ground of both and mental and physical cruelty. Such an act of the wife, would not be made to suffer while allowing the ex parte judgment and decree to sustain. No harm and prejudice is caused, in case the parties are permitted to contest the petition on merits by leading evidence in support of the respective stand or contemplated stand. Accordingly, the impugned order dated 20.3.2023 and as well as the ex parte judgment and decree dated 15.7.2022 rendered in OP

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OP (FC) NO. 195 OF 2023

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No.2492 of 2020 are set aside. OP is restored to original number. Parties through their counsel are directed to appear before the competent court on 20.12.2023 and petitioner shall file the counter statement before 19.1.2024. Family Court shall endeavour to decide the petition as expeditiously as possible.

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Petition stands allowed.

Sd/-

AMIT RAWAL

JUDGE

Sd/-

sab

C.S. SUDHA

JUDGE

OP (FC) NO. 195 OF 2023

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APPENDIX OF OP (FC) 195/2023

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF OP (HMA) NO. 427 OF 2019 FILED BY THE RESPONDENT FOR DIVORCE BEFORE THE HON'BLE FAMILY COURT, THIRUVANANTHAPURAM
Exhibit P2	TRUE COPY OF THE ORDER DATED 07/02/2020 PASSED BY THIS HON'BLE COURT IN TR. P (C) NO: 837 OF 2019 TRANSFERRING EXT. P1 PETITION TO FAMILY COURT, ERNAKULAM
Exhibit P3	TRUE COPY OF THE JUDGMENT DATED 15/07/2022 PASSED BY THE FAMILY COURT, ERNAKULAM IN OP 2492 OF 2020
Exhibit P4	TRUE COPY OF I.A NO: 9385 OF 2022 DATED 30/12/20222 IN OP 2492 OF 2020 BEFORE THE FAMILY COURT, ERNAKULAM PRAYING TO SET ASIDE EXT. P3 JUDGMENT
Exhibit P5	TRUE COPY OF I.A NO: 9387 OF 2022 DATED 30/12/2022 IN OP 2492 OF 2020 BEFORE THE FAMILY COURT, ERNAKULAM PRAYING TO CONDONE THE DELAY IN FILING EXT. P4 PETITION
Exhibit P6	TRUE COPY OF THE COUNTER AFFIDAVIT/ OBJECTION DATED 27/01/2023 TO EXT. P4 PETITION
Exhibit P7	TRUE COPY OF THE COUNTER AFFIDAVIT/ OBJECTION DATED 27/01/2023 TO EXT. P5 PETITION
Exhibit P8	TRUE COPY OF THE COMMON ORDER DATED 20/03/2023 PASSED BY THE FAMILY COURT, ERNAKULAM IN EXTS. P4 AND P5

Radhika Sreekandath v. Vineeth Viswanathan

Case brief

What is this about?

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Radhika Sreekandath v. Vineeth Viswanathan

Case brief

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