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 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 14260 of 2009(R) -------------------------- OP.260/2008 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): --------------- NAVANEETH, AGED 32 YEARS, S/O. M.V.S. NAMBOOTHIRI, MAMBETTA KOTTARAM, P.O. OTHARA, THIRUVALLA. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): --------------- SWAPNA T. NARAYANAN, AGED 27 YEARS, D/O. NARAYANAN NAMBOOTHIRI, THAYADA ILLAM, P.O. VELIPARAMBA, KOZHIKODE. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * W.P.(C).No.14260 of 2009 ---------------------------------------- Dated this the 25th day of May 2009 J U D G M E N T BASANT,J Against the writ petitioner, his wife, the respondent had filed an application for divorce. The petitioner was set ex parte. Marriage took place on 14/12/2002. It is submitted that one child was born in the wedlock also. In that application for divorce filed on the ground of cruelty, the petitioner remained ex parte. The Family Court proceeded to pass an ex parte decree for divorce. Long later, the petitioner went before the Family Court to get the ex parte order set aside. Notice was served on the respondent. The respondent entered appearance and advanced a specific plea that, after the decree for divorce had become final, she had contracted re-marriage and is now living happily with her present husband. The learned Judge of the Family Court, in these circumstances, felt that there was no justification in the prayer for condonation of the delay and to set aside the ex parte decree. Accordingly, the court proceeded to pass the impugned orders. 2. The learned counsel for the petitioner submits that he was not duly served in the petition. The alleged re-marriage has not been proved satisfactorily and the person with whom she is alleged W.P.(C)No.14260/09 2 to have got remarried is none other than a fiancee of the respondent during her college days. The respondent has stolen a march over the petitioner by filing the petition here in India at a time when he had gone abroad. In these circumstances, this writ petition may be allowed and the impugned order may be set aside, it is prayed. 3. The petitioner has chosen to file a writ petition and not an appeal under Section 19 of the Family Court Act. We are not going into that controversy as to whether an appeal is maintainable or a writ petition is maintainable against the impugned order. We have considered the contentions raised on merits. Whether reckoned as an appeal or a writ petition, we are satisfied that the impugned order does not warrant interference, it having been clearly revealed that the respondent has already re-married and is living with her husband. We find the conclusions of the court below to be absolutely fair, reasonable and just. 4. This writ petition is, in these circumstances, dismissed. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr W.P.(C)No.14260/09 3 W.P.(C)No.14260/09 4 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009