IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 Mat.Appeal.No. 363 of 2011 -------------------------------------- [OP.NO.544/2010 OF FAMILY COURT, KOTTARAKKARA] .................... APPELLANT/(COUNTER PETITIONER IN THE COURT BELOW): ----------------------------------------------------------------------------------------- PONNAMMA KOSHY, W/O.JOSE, AGED 33, KANNAMATHU PUTHEN VEEDU, KADAMBANADU MURI & VILLAGE, PATHANAMTHITTA. BY ADV. DR.V.N.SANKARJEE. RESPONDENT/(PETITIONER IN THE COURT BELOW): ---------------------------------------------------------------------------- JOSE.V., S/O.VARGHESE, AGED ABOUT 42, KOLLURATHU THEKKATHIL, SOORANADU NORTH.P.O., KUNNATHOOR TALUK, KOLLAM – 690 561. BY ADV. SRI.JOHNSON GOMEZ. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- Mat.A.No.363 OF 2011 ------------------------------------ Dated this the 12th day of August, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The respondent married the appellant. Later, he filed the original petition before the family court alleging that his consent for the marriage was obtained by practising fraud and pressing relevant and material particulars in relation to the appellant. According to him, she was leading an immoral life with multiple partners, that too for money in return, and had contracted certain vaginal infections and she is also involved in peddling in alcohol. He, who works in the Boarder Security Force says that when he came down, it is also found that she was involved in an abkari offence, of which, Ext.A2 is the scene mahazar and Ext.A3 is the charge sheet. He says that to his knowledge, she had medically terminated a pregnancy and she was abusing his home since there was none else to take care of MA.363/11 2 it since his mother was bedridden and he has lost his father. With the aforesaid situation, he sued the appellant for a decree declaring the marriage as null and void on ground that his consent for the marriage was obtained by practising fraud and in the alternative, he sought for a decree for divorce on ground of cruelty and also of desertion. 2.The family court set ex parte the wife. She had tried to have the ex parte order set aside. It is stated in the impugned final order of the family court that the said application was dismissed on merits. As of now, there is no appeal by the wife against that order. 3. Technically, we would consider that in the event of the question of the defendant having been set ex parte remaining final, we would not look into that issue and would confine ourselves to the question as to whether the impugned order stands on the basis of the pleadings and evidence on record. But this is a case where the allegations are so stinkingly strong MA.363/11 3 that any woman should get an opportunity to meet such allegations. 4. At the same time, we see considerable force in the submissions on behalf of the husband that his categoric evidence before the court below would pointedly show that the woman is not merely one of easy virtue but one whose conduct has wrecked the husband's life. We think it would be improper for us to express finally on that because we do not have any material as to the culmination of any proceedings on the basis of Exts.A2 and A3. We hasten to add that we are not suggesting that the booking of an abkari case itself would not affect the matrimonial tie in cases where the case is shown to be one which was registered with some substance. On the totality of the facts and circumstances, we are of the view that the evidence on record, not being tested on the touchstone of cross examination, requires to be viewed strictly. The family court did not find that the husband is entitled to a declaration that the marriage is null and void on ground of fraud having MA.363/11 4 been played on him. The court also did not uphold the husband's plea of desertion by the wife. The finding of cruelty is built fundamentally on the existence of a criminal case, that too, under the Abkari Laws, evidence of which are Exts.A2 and A3, the mahazar and charge sheet. We think that having regard to the materials on record, it is an abundantly fit case where the wife gets opportunity to contest the materials on record and adduce evidence also by subjecting herself to examination before court, if she chooses to offer. Being the wife, we desist from imposing any order of costs on her. We, however, feel that the counsel for the husband is justified in telling us that it may be only reasonable that a time limit is fixed for the final disposal of the matter, if it is being remitted. 5.Taking all the relevant facts and circumstances into consideration, we are inclined to take the view that the impugned judgment/order cannot be sustained but has to be vacated and the matter remitted for trial de novo. It may be open to the court below to keep the available evidence as part MA.363/11 5 of the record and permit further evidence, including, if necessary, by extending opportunity for cross examination of the husband who is the petitioner before the court below. 6.In the result, this matrimonial appeal is allowed setting aside the impugned order and remitting the case for trial and disposal in accordance with what is stated above. The parties are directed to mark their appearance before the family court either by themselves or through authorised representatives on 26.9.2011. Since the husband is stated to be in the BSF, the family court will post the case appropriately taking into consideration his convenience also. Let the trial be concluded as expeditiously as possible, at any rate, before 31.12.2011. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb.12/8.