IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 Mat.Appeal.No. 737 of 2010(D) ------------------------------------------ [AGAINST THE ORDER DATED 22/07/2010 IN OP.NO.1002/2009 OF FAMILY COURT, MALAPPURAM] .................... PETITIONER/RESPONDENT: ---------------------------------------- SANDHYA RANI, AGED 36 YEARS D/O.VIJAYAN, KUZHICHALIL HOUSE KURICHIYIL PO, THALASSERY. BY ADV. SRI.D.SREEKUMAR. RESPONDENT/PETITIONER: ---------------------------------------- SATHEESH BABU, AGED 39 YEARS S/O.PARAKKAL AYYAPPAN, CHANNAYIL PALLIYALI VAZHAYUR VILLAGE, VAZHAYUR AMSOM DESOM VAZHAYUR EAST P.O, ERNAD TALUK- 673 633. ADV. SRI.A.R.GEORGE (MEDIATOR). THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A. NO.737/2010-D: APPENDIX PETITIONERS' ANNEXURE: ANNEXURE NO.1: COPY OF THE ORDER DTD. 22/07/2010 IN O.P. NO.1002/09 ON THE FILE OF THE FAMILY COURT, MALAPPURAM. RESPONDENTS' ANNEXURES: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. Thottathil B.Radhakrishnan & M.C.Hari Rani, JJ. = = = = = = = = = = = = = = = = = = = = = = = = Mat.Appeal No.737 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of August, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This Mat. Appeal was heard for admission by a Bench on 15.9.2010 and it was minuted that the learned Judges were not persuaded that the matter deserves admission. However, the Bench acceded to the request of the learned counsel for the appellant that there could be a last attempt for re-union. Accordingly, without admitting the matter to file, notice was issued to the respondent and the case was adjourned for mediation. The fact of the matter remains that mediation has not until now become fruitful and no report of terms of settlement has come up with the passage of time. Obviously, the mediation does not survive. It has ceased with efflux of statutory time for report. MA737/10 -: 2 :- 2.The learned counsel for the appellant says that pending mediation proceedings, by now, the respondent has married another woman. We note this only because it is so submitted. The consequence of a marriage during the pendency of an appeal is a different issue and is not subject matter of this Mat.Appeal, though we have already noted that this Mat.Appeal is yet to be admitted. 3.We, therefore, proceeded to consider the matter on merits to again look into the issue as to whether this appeal deserves to be admitted on the basis of any prima facie case having been made out in terms of Rule 11 Order XLI CPC. 4.The respondent husband sued the appellant for restitution of conjugal rights. The appellant contested those proceedings. Her objections were overruled and after full trial, the court granted restitution of conjugal rights with some directions as per order dated 7.3.2007. After a lapse of 2 ½ years therefrom, the husband filed the original petition from which this appeal MA737/10 -: 3 :- arises. Though the defence set up by the wife in the present proceedings is that she had to suffer because of cruelty and harassment, including mental and physical; in our view, the learned Judge of the Family Court rightly held that such plea is no defence on the face of the order on merits on an application for restitution of conjugal rights where the wife's plea in the aforesaid line did not succeed. Resultantly, the Family Court has granted the impugned order of divorce under Section 13(1A)(ii) of the Hindu Marriage Act. The Family Court referred to the earlier order and the conditions imposed while granting restitution of conjugal rights and held that the materials on record including the testimony of the husband and the witnesses cited by him, as also the testimony of the wife are eloquently evidence that while the husband had always stood to abide by the directions in the order for restitution, there was no compliance of the said order by the wife. She stated in court during her evidence that she was informed and she knew that the husband had found out different houses to be taken on rent, however that, she and MA737/10 -: 4 :- her family had refused that offer, though they had not even seen those buildings. The Family Court also noted that Ext.A2 series and Ext.A3 series documents show that the husband's communications were got returned through the postal authorities by refusing the same when tendered by the Postman. Ext.A2 series letters were opened for the first time in Court. Ext.A3 series money orders were also returned by her. With all the aforesaid materials, we do not find any merit in this appeal. It fails. The same is accordingly dismissed in limine. Thottathil B.Radhakrishnan, Judge. M.C.Hari Rani, Judge. Sha/0508