IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Mat.Appeal.No. 114 of 2004(E) ---------------------------- OP.158/2003 of FAMILY COURT, THIRUVALLA .................... APPELLANT/RESPONDENT ----------------------------------- VARGHESE MATHEW, S/O. LATE MATHEW, CHETTIYAPARAMPIL, KURIYANNOOR P.O., THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.BINDU SREEKUMAR RESPONDENT/PETITIONER ------------------------------------ SANTHAMMA JOHN, D/O. JOHN (LATE), MALIYEKKAL HOUSE, RIVER SIDE, KURIYANNOOR P.O., THOTTAPUZHASSERY VILLAE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. ADV. SRI.SATHISH NINAN FOR R1 SRI.SANTHOSH MATHEW FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.114 of 2004 ------------------------------------- Dated this the 22nd day of October, 2009 JUDGMENT BASANT, J. The respondent before the court below is the appellant. He is the husband of the respondent. He assails the ex parte order passed by the court below allowing the claim petition filed by his wife, the respondent in this appeal and directing him to pay an amount of Rs.1 lakh along with interest @ 6% per annum from 24.02.1992. The parties are Christians by religion. Their marriage took place on 02.03.1992. Betrothal had taken place earlier on 24.02.1992. The appellant was employed abroad. After a few days' residence together, the appellant/husband went back to his place of employment abroad. The respondent/wife gave birth to a child on 01.11.1992. It appears that the respondent had reservations about the legitimacy and paternity of the child as the child at the time of birth on 01.11.92 was a full grown child. The marriage took place on 02.03.1992. Acrimony developed between the parties. The husband was not thereafter interested in continuing the marital tie. Mat.Appeal No.114 of 2004 2 2. The wife filed the present petition claiming return of 20 sovereigns of gold ornaments which were allegedly taken by the husband at the time of marriage and an amount of Rs.1 lakh which was allegedly paid to him. The husband entered appearance and resisted the said claim. According to him, no such amounts were received and no ornaments were retained by him. According to him separate residence occurred on account of the reasons indicated above. 3. The petition was initially filed before the civil court and the same was transferred to the Family Court after its establishment. The court below had directed the appellant to appear personally. A couple of opportunities were given to the husband to appear before the court. The husband, who was employed abroad, did not appear. In these circumstances, on 14.07.03, the husband was set ex parte and the matter was posted for evidence. At that stage, I.A.No.934 of 2003 was immediately filed by his counsel. In that petition, the counsel prayed on behalf of the appellant that the order dated 14.07.03 setting him ex parte may be set aside. He further prayed that opportunity may be given to the counsel for the appellant to cross examine the claimant/wife and her witnesses, who were Mat.Appeal No.114 of 2004 3 proposed to be examined. He also prayed that permission may be granted to the counsel to produce the documents on behalf of the appellant in his absence. 4. When that petition came up for hearing on 21.08.09, the appellant was not present. On the short ground that the appellant was absent, the said I.A was dismissed. Thereafter the claimant examined herself as PW1 and two witnesses as PWs 2 and 3. The husband did not/could not adduce any evidence. As the petition filed by his counsel as I.A.934 of 2003 was dismissed, the counsel for the appellant could not also participate in the proceedings. It was, in these circumstances, that the impugned order was passed on 01.11.2003. 5. Before us the learned counsel for the appellant/husband and respondent/wife have advanced their arguments. The marital tie has not been dissolved in accordance with law and there is no dispute on that aspect. The learned counsel for the appellant assails the impugned order on the following sole ground. 6. The court below erred grossly in not granting the appellant reasonable opportunity to defend the claim raised against him. Mat.Appeal No.114 of 2004 4 The Ground 7. Admittedly the appellant was employed abroad. The matter was received on transfer by the Family Court on 25.02.03. As the husband was employed abroad, he could not appear. On 14.07.03, he was set ex parte on the ground that he was not personally present. The I.A filed by his counsel to set aside the ex parte order and to permit him to contest the claim on behalf of the appellant was also dismissed and the prayer was rejected. Long later on 01.11.2003, the impugned order was passed by the Family Court. 8. The learned counsel for the appellant submits that the court must have taken note of the fact that the appellant, who has only a petty employment at his place of employment abroad, could not come to India as desired by him. In these circumstances, his absence should not have led to an ex parte order being passed against him when he was willing to participate in the proceedings through his counsel and had made a specific application for the said purpose as I.A.No.934 of 2003. The learned counsel, in these circumstances, prays that the appellant may be given an opportunity to contest the proceedings and establish his case. Mat.Appeal No.114 of 2004 5 9. The learned counsel for the respondent/claimant contends that the matter has been dragging on for quite a long period of time unnecessarily. The appellant had no serious intention of contesting the proceedings and that is why he did not at all appear before court from 28.05.03 to 01.11.03. If he had any serious intention to participate in the proceedings and contest the claim, he would have appeared before court at least on one date during the long period of 28.05.03 to 01.11.2003. In these circumstances, it is prayed that this appeal may be dismissed and the impugned order upheld. 10. We have considered all the relevant circumstances. The contumacious failure of the appellant to appear before court from 28.05.03 to 01.11.03 notwithstanding, we find merit in the prayer for setting aside the ex parte decree. We particularly take note of the fact that despite expression of willingness of the counsel to proceed with the matter in the absence of the appellant, opportunity was denied to the counsel for the appellant to participate in the proceedings. We do take note of the submission of the learned counsel for the respondent that the respondent is put to unnecessary hardship and difficulties for no fault of hers. Having considered all the relevant circumstances, Mat.Appeal No.114 of 2004 6 we take the view that this appeal can be allowed and the impugned ex parte order can be set aside subject to appropriate terms and conditions. 11. In the result: a) This Matrimonial Appeal is allowed subject to conditions; b) The impugned order shall be set aside on the following terms and conditions: (i) The appellant shall deposit before the court below a further amount of Rs.5,000/- (Rupees Five thousand only) as cost on or before 01.12.2009; (ii) If deposited, the said amount of Rs.5,000/- shall forthwith be released to the respondent; (iii) The amount of Rs.2,000/- (Rupees Two thousand only) which remains in deposit in this Court shall also be released to the respondent forthwith; (iv) The parties shall appear before the Family Court on 02.12.09. If the amount is deposited, the impugned order shall stand set aside and the Family Court shall proceed to dispose of the claim afresh in accordance with law; Mat.Appeal No.114 of 2004 7 (v) We make it clear that the option of the respondent to claim the entire amounts demanded in O.P.No.158 of 2003 shall remain unfettered; (vi) She can also adduce further evidence as may be found to be necessary by her; (vii) The court below shall dispose of the case as expeditiously as possible - at any rate, within a period of 3 months from 02.12.09; (viii) If the amount of Rs.5,000/- is not deposited by the appellant as directed, the Family Court shall record that fact on 02.12.09 and thereupon the impugned order shall continue to remain in force; (ix) The amount of Rs.2,000/- already deposited before this Court and the amount of Rs.5,000/- to be deposited in court as directed in clause (i) above shall be reckoned as cost and shall not be adjusted towards the amount, if any, found ultimately due in O.P.No.158 of 2003. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-