IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Mat.Appeal.No. 258 of 2009() ---------------------------- AGAINST THE ORDER DATED 07/03/2009 IN IA 981/2008 IN OP.156/2008 of FAMILY COURT, KASARAGOD .................... APPELLANT/PETITIONER/RESPONDENT ---------------------------------------------- DR.SUMA SYAMKUMAR, USHAS, ASHOK LANE, ALUVA-683 101. BY ADV. SRI.PHILIP T.VARGHESE RESPONDENT: PETITIONER ------------------------- DR.MAVILA KANNAN, S/O.DR.K.P.PRABHAKARAN NAIR, NARAYA, AJANOOR, P.O.KOSAVANKUNNU, KANHANGAD, HOSDURG TALUK. ADV. SRI.SANTHEEP ANKARATH FOR RESPDTS. SRI.G.SIJI FOR RESPDTS. SRI.N.R.CHANDRASEKHARAN[MEDIATOR] THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A. NO. 999 OF 2009 IN MAT APPEAL NO. 258 OF 2009 DISMISSED. 7-10-2009 SD/-R. BASANT, JUDGE SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE ks. R.BASANT & M.C. HARI RANI,JJ ============================== Mat Appeal No. 258 of 2009 ============================ DATED THIS THE 7th DAY OF OCTOBER 2009 JUDGMENT Basant,J. This Mat Appeal is filed by the appellant/wife claiming to be aggrieved by the impugned order passed by the Family Court dismissing her application to set aside an ex parte order granting divorce on the ground of cruelty. 2. To the skeletal facts first. The marriage took place on 13-9-2006. There was estrangement in the relationship. The appellant-wife went abroad in connection with her employment on 10-6-2008. On 2-7-2008 the husband filed application for divorce on the ground of cruelty (O.P.No.156/2008). The wife was served by substituted service and she was set ex parte on 13-10-2008. Ex parte evidence was recorded on 29-10-2008 and the matter was posted for judgment to 12-11-2008. 3. On coming to know of the events, the wife came to India Mat Apeal No.258/2009 2 on 9-11-2008 and on 11-11-2008, she filed an application to set aside the order setting her ex parte and to permit her to participate the proceedings and to adduce evidence. On 12-11-2008, her application was dismissed and the ex parte order was passed against her granting divorce as prayed for. 4. Promptly against the ex parte order, the appellant-wife filed an application to set aside the same. That application was filed on 17-11-2008, the same stands dismissed by the impugned order. 5. The learned counsel for the appellant submits that there is absolutely no justification for the court hurriedly setting the appellant ex parte, not allowing her application to set aside the order setting her ex parte, in passing the ex parte order for divorce on 12-11-2008 and later in dismissing the application to set aside the order of divorce. 6. We have anxiously considered all the relevant circumstances. We have heard the learned counsel for the respondent. We have perused the impugned order. Mat Apeal No.258/2009 3 7. We must say that the sequence of events in this case clearly reveal that it is not a case where the wife was indifferent to the proceedings initiated against her. Her conduct of coming back to India on 9-11-2008 and filing an application on 11-11- 2008 to get the order setting her ex parte speaks volumes about her bona fides. The fact that she filed the application to set aside the impugned ex parte order dated 12-11-2008 as early as on 17-11-2008 does also eloquently convey to us her bona fides. In any view of the matter, we are persuaded to agree that the impugned order deserves to be set aside. The ex parte order granting divorce deserves to be set aside and the appellant deserves to be granted an opportunity to contest O.P.No.156/2008. 8. The learned counsel for the appellant prays that the case may be ordered to be transferred from the Family Court, Kasaragod to the Family Court, Ernakulam. The learned counsel contends that the court at Kasaragod has no jurisdiction to deal with the matter and that at any rate the marriage having taken Mat Apeal No.258/2009 4 place admittedly within the jurisdiction of the Family Court, Ernakulam, the transfer may be ordered. That prayer is opposed. 9. We are not satisfied that the sufficient reasons have been shown to direct the transfer as prayed for. The parties have already engaged counsel before the Family Court, Kasaragod and we do not think it expedient to order the transfer as prayed for. 10. In the result, a) the appeal is allowed. b)The impugned order is set aside. c)I.A.No.981/2008 is allowed and the ex parte order of divorce passed on 12-11-2008 is set aside. d)The Family Court is directed to dispose of O.P.No.156/2008 afresh in accordance with law. e) The parties/counsel shall appear before the Family Court on 9-11-2009. The learned Judge of the Family Court shall dispose of O.P.No.156/2008 as expeditiously as possible, at any rate, within a period of four months from 9-11-2009. 11. It is submitted that both parties are abroad. Counsel Mat Apeal No.258/2009 5 want this Court to direct the Family Court that personal presence of the parties need not be insisted,unless the same is absolutely essential. Needless to say, the presence of the spouses need not be insisted unless the same is absolutely essential to proceed with the matter. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.