IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Mat.Appeal.No. 846 of 2008() ---------------------------- OPHMA.468/2007 of FAMILY COURT, THIRUVALLA .................... PETITIONER: PETITIONER ------------------------- SMITHA MOHANDAS, AGED 27 YEARS, D/O. MOHANDAS, MALICKAL REVATHY VEEDU, THIRUMOOLAPURAM.P.O, THIRUVALLA. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT: RESPONDENT ------------------------- K.B. JOSHIBA, AGED 30 YEARS, S/O.K.N. BABU, KALARICKAL VEEDU, KAINADI.P.O, ALAPPUZHA. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal No.846 of 2008 A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of September, 2010 JUDGMENT Basant J., Aggrieved by the order passed by the Family Court in O.P.(H.M.A) No. 468 of 2007, the appellant/ wife has come before this court. By the impugned common order the court below has dismissed the petitioner's application under Section 12 of the Hindu Marriage Act for a declaration of nullity of her marriage with the respondent. 2. The solemnisation of the marriage on 25.9.2006 is admitted. The original petition for declaration of nullity of marriage was filed within the period stipulated time by law, on 26.6.2007. The appellant/petitioner/wife had contended that her consent for the marriage with the respondent was obtained by fraud relating to material facts and circumstances concerning the respondent/husband. To be Mat.A No.846 of 2010 2 more specific, it was contended that the husband did not have the educational qualification and employment, which he claimed to have at the time, the marriage was agreed upon and solemnised. There was wilful malafide and fraudulent expression of facts as also mis representation on material facts and circumstances concerning the respondent. The appellant/ wife hence claimed that she is entitled for a declaration nullity of her marriage. 3. The husband did enter appearance before the Family Court. He did not file any counter statement. He did not raise any contentions. He was set ex parte. The court below proceeded to record the oral evidence of the appellant/wife as PW1. No documents were marked. As stated earlier, the respondent/husband did not participate in the proceedings or resist the claim for declaration of nullity of marriage. Needless to say, no evidence was adduced on his side also. 4. The court below proceeded to pass the impugned order. We note that the impugned order is really, a common order in O.P. 468 of 2007 filed by the appellant/ wife and O.P. No. 46 of 2008 filed by the respondent/ husband. O.P. No: Mat.A No.846 of 2010 3 468 of 2007 was an application for restitution of conjugal rights filed by the husband, which was dismissed for non- prosecution. He did not choose to prosecute the said petition. He did not adduce any evidence in support of his claim in O.P. No. 46 of 2008. 5. The court below by the impugned order took the view that the appellant had not succeeded in establishing circumstances to justify declaration of nullity of marriage under Section 12(1)(c) of Hindu Marriage Act and accordingly the court below proceeded to pass the impugned order. 6. Before us, the learned counsel for the appellant/ wife has advanced detailed arguments. Even before this court, the respondent/husband, though served, did not choose to enter appearance. 7. The learned counsel for the appellant assailed the impugned order on various grounds. We shall now proceed to consider the grounds of challenge. 8. The first ground of challenge is that the court below unnecessarily and without any justifiable reason chose to dispose of O.P. No. 468 of 2007 and O.P. No. 46 of 2008 Mat.A No.846 of 2010 4 together. The husband, i.e., the respondent herein, was not interested in prosecuting O.P.No. 46 of 2008. The appellant herein, in the wake of non-prosecution of the said O.P. filed by the respondent/ husband had not chosen to file any counter statement in that O.P. The court below quite unnecessarily and unjustifiably had looked into the averments in support of the said O.P., filed by the husband and had further commented on the absence of any counter statement filed by the wife/ appellant herein in O.P. No. 46 of 2008. This is totally unjustifiable. The court below should not and could not have looked into the averments in O.P. No. 46 of 2008, which was not prosecuted by the respondent/ husband. It was consequent to such non prosecution that the appellant herein did not feel the necessity to file any objections in the said O.P. No. 46 of 2008. 9. We find force in the contentions of the learned counsel for the appellant. Clubbing O.P. No. 46 of 2008, which was not prosecuted along with O.P. No. 468 of 2007 filed by the appellant/wife, was totally unnecessary and unjustifiable. In the wake of non-prosecution in O.P. No. 46 Mat.A No.846 of 2010 5 of 2008 by the husband, the appellant was certainly not obliged to file any counter statement in O.P. No. 46 of 2008. We agree with the learned counsel for the appellant that the Court below erred in trying O.P. No. 46 of 2008, which the respondent was not interested in prosecuting along with O.P. (H.M.A.) No. 468 of 2007 and in placing reliance on the averments of O.P. No. 46 of 2008 as also on the failure/ omission of the appellant to file counter statement in O.P. No. 46 of 2008. The dismissal of O.P. No. 46 of 2008 remains un- challenged. We are in these circumstances, satisfied that the court below should have disposed of O.P. No. 468 of 2007 on merits on the basis of pleadings and averments of O.P. No. 468 of 2007, without in any way being influenced by averments in O.P. No. 46 of 2008 or the course adopted by the appellant in the said O.P. of not filing any counter statement. 10. We are in these circumstances, satisfied that O.P. No. 468 of 2007 deserves to be disposed of afresh, in accordance with law. 11. Secondly, the learned counsel for the appellant Mat.A No.846 of 2010 6 contended that the court below did not alertly appreciate the change in law, which was brought about by amendment to Section 12(1)(c) as per Act 68 of 76, which came into force with effect from 27.5.1976. According to the learned counsel for the appellant, misrepresentation of material facts and circumstances concerning the respondent on the basis of which, consent for the marriage was fraudulently induced from the petitioning spouse, can after this amendment be a valid ground for declaration of nullity. The learned counsel submits that the court below had omitted to consider the law on the point after amendment meticulously and in detail. We find force in the contention. At any rate, we are satisfied that the matter deserves to be considered in detail by the court below in the light of the change in the law with effect from 27.5.1976, as per the amendment vide Act 68 of 76. 12. The learned counsel for the appellant finally submits that before the court below there was no serious contest and this had led the appellant to commit the error of not making meticulous assertions regarding the expression/ mis representation of material facts and circumstances Mat.A No.846 of 2010 7 concerning the respondent. The counsel submits that if an opportunity were given to the appellant, the appellant shall be able to make all necessary evidence available before the Family Court. 13. The learned counsel for the appellant submits that the unfortunate plight of the appellant may be taken into consideration. The respondent is not willing to file an application for dissolution of marriage by mutual consent. He is not cooperating with the appellant. He is not interested in salvaging the marriage also. He remains exparte before the court below and he has not entered appearance before this court, even though he was duly served. In these circumstances, this court may be pleased to grant the appellant an opportunity to adduce further evidence before the court below, prays the learned counsel for the appellant. 14. We have considered all the relevant circumstances. We are in ready in agreement with the learned counsel for the appellant that the plight of the appellant is un-enviable. We accept the request of the learned counsel for the appellant for further opportunity to adduce all relevant Mat.A No.846 of 2010 8 evidence before the court below. We take note of the submissions of the learned counsel for the appellant that the appellant may be permitted to amend the pleadings, if necessary and adduce further evidence. In the facts and circumstances of this case, we are satisfied that the said request can be allowed. 16. In the result; (a) This appeal is allowed in part. (b) The impugned order is set aside. (c) The court below is directed to dispose of O.P.(HMA) No.468 of 2007 afresh, independently without in any way being influenced by the filing of O.P. No. 46 of 2008 or the course adopted by the parties in that proceedings. (d) The court below is directed to give the appellant an opportunity to amend the pleadings and to adduce further evidence in the matter. (e) We accept the request of the learned counsel for the appellant and specifically direct that the court below must dispose of the matter afresh, cognisant of the challenge in law that has come up after Section 12(i)(c) was amended vide Act Mat.A No.846 of 2010 9 68 of 76 with effect from 27.5.1976. (f) The appellant is directed to appear before the court below on 22.11.2010. The court below shall proceed to dispose of the matter afresh as expeditiously as possible, at any rate, within a period of three months from that date. R. BASANT, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/