IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Mat.Appeal.No. 112 of 2009() ---------------------------- OP.944/2005 of FAMILY COURT,THRISSUR .................... PETITIONER : --------------- K.R.RADHIKA, AGED 31 YEARS, D/O.RAJAN, AANAPARAMBIL HOUSE, THENNUR AMSOM, THENNUR P.O. PALAKKAD TALUK, PALAKKAD DIST. BY ADV. SRI.P.RAMACHANDRAN RESPONDENTS: --------------- 1. P.G.UNNIKANNAN, S/O. GOVINDAN PATTICHAMTHODI HOUSE, EDATHARA PO PARALI (VIA, PALAKKAD DIST. 2. SUNILDATH, S/O. BALAKRISHNAN KAKKODE HOUSE, THENNUR PO THENNUR VILLAGE, PALAKKAD. DIST ADV. SRI.VINOD KUMAR.C FOR R2 SRI.G.SREEKUMAR (CHELUR) FOR R1 SRI.K.RAVI (PARIYARATH) FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.112 of 2009 ---------------------------------------- Dated this the 3rd day of August 2009 J U D G M E N T BASANT,J The appellant/wife has come to this court to assail a decree for divorce granted in favour of the husband under Section 13(1-i) of the Hindu Marriage Act on the ground of adultery. 2. The 1st respondent/husband contended that his wife/the appellant herein had after the solemnisation of their marriage indulged in voluntary sexual intercourse with the 2nd respondent herein. He hence claimed divorce on the ground of adultery. The wife and the alleged adulterer entered appearance and resisted the claim. They filed separate counter statements. It was contended that no such adulterous conduct had taken place as alleged. Parties went to trial on these contentions. Exts.A1 to A10 was marked and Pws 1 and 2 were examined on the side of the 1st respondent. Pws 1 and 2 were cross examined; but when the case was posted for evidence of the respondent/wife, no evidence was adduced on her side. On the side of the alleged adulterer also, no evidence was adduced. The learned Judge of the Family Court, in these circumstances, proceeded to pass the impugned order granting divorce as prayed for. Mat.Appeal No.112/09 2 3. Before us, the learned counsel for the appellant has advanced detailed arguments. The learned counsel for the appellant submits that even if no evidence were adduced at all on the side of the respondents, a decree for divorce should not have been granted in the light of the absolutely unsatisfactory evidence tendered on the side of the husband. The learned counsel for the appellant contends that even regarding the date on which the alleged adulterous conduct took place, there is gross and reconcilable contradictions. The learned counsel for the appellant points out that it is not very clear as to whether the alleged contumacious conduct took place on 10/06/2003 or 10/08/2003. The learned counsel for the appellant further submits that reliance has been placed on photocopies of documents (Exts.A8 and A9) and also totally unacceptable documentary evidence in the form of Exts.A6 and A7. The learned counsel for the appellant finally contends that, at any rate, there was denial of justice in that the appellant could not adduce proper evidence before the court below. The case was posted for evidence of the appellant; but on that date, the evidence could not be adduced. Subject to any appropriate terms, the appellant may be granted opportunity to adduce evidence on her side. Though an application was filed as I.A.No.118/09 for opportunity to reopen the case and for Mat.Appeal No.112/09 3 opportunity to adduce evidence, that petition was dismissed by the court below on the ground that the judgment had been pronounced even before the date of filing of I.A.No.118/09. In these circumstances, the learned counsel for the appellant prays that the appellant may be granted an indulgent further opportunity to adduce evidence in support of her case, subject to appropriate conditions. 4. We have gone through the entire materials available. We do not propose to delve into the respective contentions on merits; but we are persuaded to feel that this is a fit case where both sides must be given opportunity to adduce further evidence. The records show that the appellant did not adduce evidence at the appointed time and it was recorded by the court that the appellant had no evidence; but in the facts and circumstances of the case, for a fair and just resolution of the controversy, we are satisfied that the appellant can be given an opportunity to adduce evidence subject, of course, to appropriate terms and conditions: 5. In the result, a) This Mat.Appeal is allowed subject to conditions. b) The impugned order shall stand set aside on the following terms and conditions: Mat.Appeal No.112/09 4 i) The appellant shall, within a period of 30 days (i.e. on or before 07/09/2009) from this date, deposit before the court below an amount of Rs.2,000/- (Rupees two thousand only) as cost payable to the 1st respondent/husband. If such amount is deposited, the Family Court shall release the same to the respondent and shall dispose of O.P.No.944/05 afresh after giving both sides opportunity to adduce all evidence which they want to adduce. Opportunity shall be given to the parties to apply for amendment of pleadings also. 6. Both parties shall appear before the Family Court on 07/09/2009. If deposit is made, as already directed, the impugned order shall stand set aside and the Family Court shall dispose of the matter afresh, as expeditiously as possible, at any rate, within a period of three months from 07/09/2009. Compliance shall be reported to this court. 7. If the amount is not deposited, the Family Court shall make record of that fact on 07/09/2009 whereupon the impugned order shall continue to remain in force. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.Appeal No.112/09 5 Mat.Appeal No.112/09 6 Mat.Appeal No.112/09 7 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009