IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 Mat.Appeal.No. 220 of 2007 ---------------------------- OPDIV.351/2005 of FAMILY COURT, THIRUVALLA .................... PETITIONER: APPELLANT/PETITIONER ------------------------------------ K.M.MATHAI, S/O. K.M.MATHEW, KIZHAKKEDATH, KARIYILAMUKKU, KOIPURAM, THIRUVALLA TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, MARYKUTTY MATHEW, W/O. LATE K.M.MATHEW, KARIYILA MUKKU, KOIPURAM P.O., THATTAKKADU MURI, KOIPURAM VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.P.HARIDAS RESPONDENT : RESPONDENT -------------------------- MINCY ABRAHAM, CHACKALAYIL HOUSE, KODUKULANJI P.O., CHENGANNUR. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No.220 OF 2007 ----------------------------------------------------- DATED THIS THE 17th DAY OF JULY, 2009 J U D G M E N T Basant, J. This appeal has been preferred by the appellant whose application for divorce under Section 10 of the Indian Divorce Act was dismissed for non-prosecution. 2. The learned counsel for the appellant/petitioner submits that the petitioner's application was dismissed without sufficient grounds. He had claimed divorce on the ground of adultery and dissolution. Whereabouts of the respondent/wife was not known. She was served. Service was effected on the relatives of the wife, whose whereabouts were not known. According to the appellant/petitioner, on the date when the matter came up, the appellant was not present, but his power of attorney holder was present. On the short ground that the appellant/petitioner was absent, the application for divorce was dismissed by the Family Court. The learned counsel for the appellant submits that dismissal of the O.P. is most unjustified Mat.Appeal No.220/07 -2- inasmuch as the appellant/petitioner was ready to go on with the case through his power of attorney holder. At any rate, an opportunity may be given to the appellant to prosecute the appeal. The application made by him to restore the O.P. has already been dismissed, submits the learned counsel. 3. Having considered all the relevant circumstances, we are persuaded to agree that the prayer of the appellant/petitioner deserves to be allowed. The appellant/petitioner, we are satisfied, deserves to be given a further opportunity to substantiate his claim for divorce on the ground of adultery and desertion. 4. The learned counsel for the appellant submits that the appellant is not available in India and he is expected to return to India in November. Only thereafter, he can appear personally before the Family Court. Appropriate directions may be issued, it is prayed. 5. In the result: (a) this appeal is allowed. (b) the impugned order is set aside. Mat.Appeal No.220/07 -3- (c) the learned Judge of the Family Court is directed to dispose of O.P.No.351/05 afresh in accordance with law. (d) The appellant/petitioner can now appear through his power of attorney and can apprise the court below of the date after November, on which day he can appear in person. (e) The court below shall give the appellant opportunity to appear and tender evidence and thereafter dispose of the case in accordance with law. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn