IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP (FC).No. 1147 of 2010(R) --------------------------- OP.102/2007 of FAMILY COURT, ALAPPUZHA .................... PETITIONER ------------------- VINCENT, 34 YEARS, S/O. VASUDEVAN, MUTTUNKAL, PALLANA MURI, THRIKKUNNAPUZHA VILLAGE, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT ------------------------- IYLIN MARIA ANTONY, AGED 29 YEARS, PUTHENPARAMBIL, PURAKKAD.P.O, PURAKKAD VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA, PIN - 690 551. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** O.P(F.C) No.1147 of 2010 ***************************** Dated this the 14th day of December, 2010 JUDGMENT BASANT, J. The petitioner is the respondent in an original petition pending before the Family Court filed by the respondent herein. The respondent has filed the said petition to get the alleged marriage between the petitioner and the respondent under the Special Marriage Act annulled. That petition was filed as early as in 2007. The same has been dragging on. The matter has reached the stage of trial now. Trial has commenced. Some witnesses have already been examined. At this juncture, the respondent appears to have grown wiser. The respondent filed an application for amendment of the petition. In addition to the relief of declaration of nullity claimed by her originally, she wanted the petition to be amended to incorporate alternatively the plea of divorce on the ground of cruelty. The court below allowed that application. The matter now stands posted for carrying out the amendments. At this juncture, the petitioner has come to this Court claiming to be aggrieved by the order O.P(F.C) No.1147 of 2010 2 passed by the Family Court permitting amendment of the original petition to incorporate the alternative plea of divorce on the ground of cruelty. 2. We have heard the learned counsel for the petitioner. We must alertly remind ourselves that we are called upon to invoke and exercise the extraordinary constitutional jurisdiction under Article 227 of the Constitution of India of superintendence and correction. An interlocutory order is not appealable under Section 19 of the Family Courts Act. The fetter placed on the right of appeal in respect of interlocutory orders must certainly weigh with us while considering the plea for invocation of the extraordinary constitutional jurisdiction under Article 227 of the Constitution against an interlocutory order. Not that the powers under Article 227 will be fettered, but a proportionately higher degree of care must certainly be shown when the request is to invoke the extraordinary constitutional jurisdiction to interfere with an interlocutory order passed by the Family Court. 3. Where failure or miscarriage of justice results, we have no hesitation that notwithstanding the fetter under Section 19 of the Family Courts Act against challenge by filing an appeal, powers under Article 227 can be invoked by this Court in its O.P(F.C) No.1147 of 2010 3 discretion to reverse such injustice. But in this case we are not persuaded to agree that any such situation exists. It is in the interests of all concerned, spouses included, that matrimonial litigation should not drag on. It is true that the respondent did not raise the alternative plea for divorce in the original petition. But notwithstanding that omission, we are satisfied that the delayed/belated raising of that plea does not result in any failure or miscarriage of justice. Certainly the petitioner is entitled and we have no reason to assume that such opportunity is denied to him, to file an additional counter statement to controvert the new allegations raised by the amendment. If witnesses have already been examined, wherever it is just and necessary, we assume that opportunity will be granted to the petitioner to further cross examine the witnesses or to adduce further evidence. Failure or miscarriage of justice is not hence a vice that we can assume to result from the impugned interlocutory order. 4. We are satisfied, in these circumstances, that this petition only deserves to be dismissed. We do so, but subject to the above observations on the right of the petitioner to file additional counter statement, for opportunity for further cross O.P(F.C) No.1147 of 2010 4 examination of witnesses who have already been examined and to adduce further evidence on the side of the petitioner in addition to the evidence already tendered. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/