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 21ST OCTOBER 2009 / 29TH ASWINA 1931 Mat.Appeal.No. 354 of 2009() ---------------------------- I.A.NO.215/09 IN OP.599/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): --------------- C.P.K.MUTHUKOYA THANGAL,S/O.IMPICHIKOYA THANGAL,PARAKKALLIL HOUSE,PALODE, NATTUKAL P.O,MANNARKKADU. BY ADV. SRI.DILIP MOHAN RESPONDENT(S): --------------- ATHIKKA BEEVI,D/O.KOYAKUNJIKOYA THANGAL, NOW RESIDING AT C/O.KOYINHIKATTIL MUHAMMED, ALAKKAPARAMBU,KAPPIL ROAD,VENGARA,CHEROOR P.O, MALAPPURAM. ADV. SRI.V.ANIL (K/1480/98) FOR R THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No. 354 of 2009 ------------------------------------------------- Dated this the 21st day of October, 2009 JUDGMENT Basant,J. This appeal is preferred against the impugned order under which an application to set aside an ex parte order was dismissed by the Family Court. The respondent/wife had claimed divorce under the provisions of the Dissolution of the Muslim Marriage Act. The petition was filed on 15/7/08. It was received on file and was posted to 8/8/08. On 8/8/08, the wife was present; but the appellant herein did not appear. According to him, he had not been served. But the learned Judge of the Family Court by order dated 8/8/08 directed as follows: “Petitioner is present. Respondent is served by affixture at his residence. Fresh Notice by publication in Madyamam daily”. Mat. Appeal No. 354 of 2009 -: 2 :- 2. When the matter came up for hearing on 9/9/08, paper publication was produced; respondent was called absent and he was set ex parte. Divorce was granted as prayed for. 3. The appellant on coming to know of the order, within the stipulated period of time, applied to get the ex parte order set aside. In such application for setting aside the ex parte order, he had alleged that he was not residing at the address shown in the petition where service was allegedly effected by affixture. The application was opposed. It was contended that the appellant was continuing to reside in the same address. There were other proceedings between the parties and all of them reveal that the appellant was residing in the said address. In these circumstances, the learned Judge of the Family Court rallied to the conclusion that there has been deliberate incorrect statement made in the application to set aside the ex parte order. For that sole reason, the learned Judge proceeded to pass the impugned order relying on the decision on the Supreme Court in Pundlik J. Patil v. Executive Engineer (2009(1) KLT SN 25 Case No.26 (SC)). 4. The learned counsel for the appellant submits that the appellant has been denied a fair opportunity to contest the proceedings. The learned counsel submits that the statement Mat. Appeal No. 354 of 2009 -: 3 :- made by the appellant that he was not residing at the address shown in the petition is not incorrect or false. In any view of the matter, considering the fact that on the very first day service is alleged to have been effected by affixture and not by service directly and further taking note of the fact that the application to set aside the ex parte order has been promptly filed, a lenient view must have been taken and an opportunity must have been given to the appellant to contest the proceedings. The learned counsel for the appellant points out that there is no plea even that the appellant has married again. Five children having been born in the wed-lock. The appellant is interested in continuing the marital tie. He may therefore be given an opportunity to contest the application for divorce, argues the learned counsel. 5. The learned counsel for the respondent opposes the application vehemently. Our attention has been drawn to the averments in the original petition which reveal that the husband has been refusing to maintain the children cruelly and unreasonably. There is a contention that amounts used to be paid for the maintenance of the children. But admittedly there is nothing to show that any such amounts have been made. 6. We have considered all the relevant circumstances. Mat. Appeal No. 354 of 2009 -: 4 :- We are satisfied that a lenient view can be taken and the appellant can be granted an opportunity to contest the proceedings for divorce considering the totality of facts and circumstances. But we are satisfied that the appellant can be put to appropriate terms. Subject to appropriate conditions, he can be granted an opportunity to contest the petition for divorce. 7. In the result: (a) This appeal is allowed subject to conditions. (b) The impugned order shall stand set aside, the ex parte order shall stand vacated and the appellant shall be given an opportunity to contest O.P.No.599/08 on condition that the appellant deposits before the court below an amount of Rs.5,000/- as costs which shall be credited to the past maintenance payable to the children till this date without prejudice to the rights of the claimant and the children to claim further amounts, if any, due by way of past maintenance. (c) The case shall be called before the Family Court on 30/11/09. On or before that date, the amount of Rs.5,000/- shall be paid to the respondent or deposited before the Family Court. On 30/11/09, the court shall record whether such payment has been made or not. If payment is not made, the Mat. Appeal No. 354 of 2009 -: 5 :- court below shall make note of that fact and then the impugned order shall continue to remain in force. If payment is made/deposited, the same shall be released to the respondent forthwith. (d) If the amount is paid/deposited, the court below shall proceed to dispose of O.P.No.599/088 afresh on merits in accordance with law as expeditiously as possible - at any rate, within a period of three months from 30/11/09. 8. Compliance shall be reported to this Court. 9. Hand over a copy of the judgment to the learned counsel for the appellant. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge Mat. Appeal No. 354 of 2009 -: 6 :-