IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 668 of 2010(R) ----------------------------------- (O.P(DIV).NO.1322/2008 OF FAMILY COURT,ERNAKULAM) .................... PETITIONER: ------------------- E.X.MATHEW, AGED 45 YEARS, S/O.X.V.XAVIER, EARATHARA HOUSE, KANNANKULANGARA, THRIPPUNITHURA P.O, ERNAKULAM. BY ADV. MR.S.MUHAMMED HANEEFF. RESPONDENT: ---------------------- MURPHY MATHEW, D/O.PHILOMINA ARUJA, AGED 42 , THEKKUMTHALA PARAMBIL,PACHALAM KOCHI-12. BY ADV. MR.JAIJI ITTEN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.668/2010-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PETITION IN I.A. NO. 284/2009 IN O.P. NO. 1322/2008 ON THE FILE OF THE FAMILY COURT, ERNAKULAM. EXT.P.2: COPY OF THE PETITION IN I.A. NO. 293/2009 IN O.P. NO. 1322/2008 ON THE FILE OF THE FAMILY COURT, ERNAKULAM. EXT.P.3: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A. NO. 293/2009 IN O.P. NO. 1322/2008 OF FAMILY COURT, ERNAKULAM. EXT.P.4: COPY OF THE COMMON ORDER DT. 27/08/2009 IN I.A. NO. 284/2009 AND I.A. NO. 293/2009 IN O.P.(DIV) NO.1322/2008 ON THE FILE OF THE FAMILY COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(C)No.668 of 2010-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of March, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The petitioner sought for a declaration that his marriage with the respondent is a nullity. He later wanted to amend that application by pleading that the respondent has adulterous relationship with a person, who is named in the affidavit accompanying the application for amendment. The court below dismissed that application. Hence, this writ petition. 2.Whatever be the reason on which the Court below has dismissed the application for amendment, we are of the view that an application for a declaration of nullity of marriage could not have been converted during the pendency of its trial WPC668/10 -: 2 :- to be one for divorce which essentially has to proceed on the premise of an admitted status of marriage. Under the aforesaid circumstances, we affirm the impugned order and leave the petitioner with liberty to seek leave of the Family Court to withdraw O.P.(Divorce) No.1322/2008 pending before that court without prejudice to his right, if any, to seek a decree of divorce a mensa et toro in terms of the Indian Divorce Act, in accordance with law. We also record the submission that the respondent has since filed an application for divorce. The writ petition is ordered accordingly. Thottathil B.Radhakrishnan, Judge. P.S.Gopinathan, Judge. WPC668/10 -: 3 :- Sha/0303