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 26TH MARCH 2010 / 5TH CHAITHRA 1932 Mat.Appeal.No. 249 of 2010(D) ----------------------------- OP.422/2009 of FAMILY COURT, THIRUVALLA .................... APPELLANT/1ST PETITIONER: --------------- M.G.MANOJ, AGED 36, S/O.GOPINATHAN PILLAI, SAIPRABHA HOUSE, THONNALLUR MURI, PANDALAM VILLAGE, ADOOR TALUK. BY ADV. SRI.P.HARIDAS RESPONDENT/2ND PETITIONER: --------------- REKHA MANOJ, AGED 30 YEARS, W/O.M.G.MANOJ, SAIPRABHA HOUSE, THONNALLUR MURI, PANDALAM VILLAGE, ADOOR TALUK. PRESENT ADDRESS: PAVITHRA, ILLANGAM GARDEN, D4, VELLAYAMBALAM, THIRUVANANTHAPURAM-10. ADV. SRI.R.RANJITH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.249 of 2010 ---------------------------------------- Dated this the 26th day of March 2010 J U D G M E N T Basant,J This appeal is directed against an order passed by the Family Court, Thiruvalla dismissing a joint application for divorce on mutual consent under Section 13B of the Hindu Marriage Act. The petition was filed on 28/5/2009. The minimum period to make the second motion under Section 13B (2) was over. On that day, the appellant/husband did not turn up. This obliged the learned Judge of the Family Court to proceed to dismiss the application. 2. The learned counsel for the appellant submits that the appellant was employed abroad and was not able to get leave to come to India. It is, in these circumstances, that the appellant could not be present before court on 02/12/2009. The learned counsel for the appellant points out that the 2nd motion can be made on any day after six months and before 18 months. The appellant was not able to be present to make the second motion because of the compulsions of his employment. In these circumstances, the court below was not justified in dismissing Mat.Appeal No.249/10 : 2 : the application for the reason that the appellant happened to be not present on 02/12/2009 before the court below. 3. We are satisfied that a lenient view can be taken and the challenge against the impugned order can be upheld. 4. In the result, a) This Mat.Appeal is allowed. b) The impugned order is set aside. c) The parties are directed to appear before the Family Court on 05/04/2010. Both counsel agree that both parties shall appear personally before the Family Court on that day. The Family Court shall proceed to dispose of O.P.No.422/09 in accordance with law, afresh, as expeditiously as possible thereafter - on 05/04/2010 itself, if there are no compelling reasons making it impossible to dispose of the case . If the matter is not disposed of on 05/04/2010, it must be posted to the next date of sitting and the matter disposed of. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr Mat.Appeal No.249/10 : 3 : Mat.Appeal No.249/10 : 4 : Mat.Appeal No.249/10 : 5 : R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009