IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 Mat.Appeal.No. 618 of 2007() ---------------------------- OP(DIV)335/2007 of FAMILY COURT, THIRUVALLA .................... APPELLANT/PETITIONER: ------------------------------------ MILY MARY THAMPY, KANNAMPLALIL HOUSE, PULLUPURAM, POOVANMALA, RANNI, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.V.MATHEW RESPONDENT: ------------------------ ROBIN SAMUEL, CHANDRA VIRUTHIL HOUSE, PALIYAKKARA, THIRUVALLA. ADV. SRI.VARGHESE C.KURIAKOSE[AMICUS CURIAE] THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-8-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jj THOTTATHIL B. RADHAKRISHNAN & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ Mat. Appeal NO:618 OF 2007 & I.A. 2251 of 2011 ----------------------------------------------------------- Dated this the 19th August, 2011. JUDGMENT Thottathil B. Radhakrishnan, J. I.A.2251/2011 Allowed. Mat Appeal is taken up today. This appeal is filed against the dismissal of an application filed by the wife under Section 10 of the Indian Divorce Act, 1869. She pleaded that in furtherance of intention to go abroad, for which the appellant had a fancy, a document was got registered on the representation of the respondent, however that the appellant was not aware of its contents; and ultimately, a certificate was found to have been issued under the Special Marriage Act. She specifically pleaded in the original petition before the Family Court that the couple did not cohabit and the respondent never came back to her and his whereabouts were not known. She also pleaded that there was no relationship after the aforesaid documentation which is a fraud played on her by the representation of the respondent that she would be taken Mat. Appeal 618/2007 2 abroad. On this premise she filed the petition before the Family Court on 8-5-2007 seeking dissolution of the marriage certified by the Marriage Officer as having been entered into on 16-4-2005. 2. Going into the different clauses of Section 10(1) of the Divorce Act, we see that the plea is essentially that the marriage has not been consummated and that situation is owing to the refusal of the respondent to cohabit with the appellant. Though it may be that she also had pleaded grounds for exercise of jurisdiction to annul the marriage on ground of fraud, it would also be a situation of desertion beyond a period of two years from the date of marriage and still further, it could also be a case of the appellant having been constructively excluded from the company of the respondent resulting in constructive desertion. 3. The Family Court recorded sufficiency of service of notice on 16-6-2007 and called out the respondent and set him ex parte. Thereupon the case was adjourned to 23-7-2011 for ex parte evidence. Here, the respondent was served with notice by declaration, as notice has been served because notice addressed to him was returned unclaimed. Mat. Appeal 618/2007 3 4. In terms of the enabling provisions of law, the petitioner had filed a proof affidavit. We have read it. That proof affidavit was on the files of the Family Court on 23-8-2007, to which day the case stood posted. On that date, the petitioner was present. The Family Court however recorded what it called as the evidence of P.W.1 and dismissed the petition holding that there is collusion in filing the petition. 5. For one thing, when the respondent was set ex parte by a judicial order and the case adjourned for ex parte evidence, the court below could not have ignored the legal evidence on record which was in the form of proof affidavit of the appellant. We have read the proof affidavit. It contains materials in the form of testimony, under due affirmation, in terms of the pleadings in the original petition. That is as good as oral evidence. The appellant was present before the Family Court on 26-7-2007. The respondent did not then take the challenge to cross examine her. He was already been set ex parte. In such a situation, it was wholly unnecessary for the appellant to have been told to tender oral evidence. Compelled under circumstances, she appears to have said in court that after the marriage, which was for the purpose of enabling the availability Mat. Appeal 618/2007 4 of visa, the parties did not cohabit and that there was no chance of union and she ultimately filed the application because efforts to have a joint petition filed had failed. In our view the learned Judge had taken too a technical approach, in acting upon that testimony in court as evidencing collusion between parties and refusing decree of divorce, wholly ignoring the proof affidavit, that too in a case where the respondent did not contest. Laws are meant to render justice in the society. 6. The question of collusion has to be understood in a stricter perspective. The provision of Section 10A of the Divorce Act, 1869, which is quite similar to the provisions of Section 13B of the Hindu Marriage Act and brought into that legislation with effect from 3-10-2001 is one that rests on consent of parties. The concept of collusion for the purpose of denying or refusing an application filed otherwise than on consent cannot be treated with such vigour or rigor as would persuade the court to dismiss an application when there is legal evidence on record, proving the allegations in the petition for divorce. 7. Looking at the materials, including the proof affidavit, the appellant is entitled to a decree declaring that the marriage between her and the respondent evidenced by the Marriage Mat. Appeal 618/2007 5 Certificate dated 16-4-2005 of the Thiruvalla Marriage Officer is dissolved from the date of this judgment. In the result, vacating the impugned judgment, a decree is passed dissolving the marriage between the appellant and respondent, who were respectively the petitioner and respondent in OP(Div) 335/2007 of the Family Court, Thiruvalla, with effect from today. Appeal is allowed accordingly. No order as to costs. THOTTATHIL B. RADHAKRISHNAN Judge K. SURENDRA MOHAN Judge jj Mat. Appeal 618/2007 6