IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 Mat.Appeal.No. 152 of 2004() ---------------------------- OP.149/2003 of FAMILY COURT, KANNUR .................... APPELLANT/PETITIONER: ------------------------------------- K.K.RAVEENDRAN, S/O. RAMAN, AGED 40 YEARS, NOW RESIDING AT ONAPARAMBIL HOUSE, P.O. NARATH, KANNUR. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): RESPONDENT: --------------------------------------------- P.SUJATHA, D/O. GOVINDAN, AGED 35 YEARS, WEAVER BY OCCUPATION, NOW RESIDING AT M.K.P. HOUSE, MOONHERI, P.O. CHELERI, KANNUR. SRI.C.S.DIAS,AMI.CURIAE THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT& K.SURENDRA MOHAN, JJ. ------------------------------------------- Mat.Appeal No.152 of 2004 ------------------------------------------- Dated this the 14th July, 2011 JUDGMENT Basant, J Husband is the appellant. His application for divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act was dismissed by the Family Court. 2. According to the appellant/husband, the marriage had taken place on 25.9.1988. The birth of the child took place on 10.5.1989. It is the case of the appellant/husband that the child born to the respondent/wife was not his child. The child birth had taken place 228 days after the marriage. The learned counsel for the appellant submits that the wife had asserted that the child was not a child born to the appellant and it is thereafter that the parties started residing separately. 3. On the side of the appellant/husband, he was examined as AW1. The wife examined herself as RW1. Exts.A1 and A2 were marked on the side of the appellant. Mat.Appeal No.152/2004 2 No documents were marked on the side of the wife. Ext.A1 is a DNA Profile Report marked when AW1 was examined. That report shows that the appellant is not the biological father of the child born for the respondent. Ext.A2 marked before the court below is the oral evidence tendered by the rival contestants in M.C.No.40 of 1995 which was filed by the wife claiming maintenance under Section 125 Cr.P.C. 4. The court below came to the conclusion that there is nothing to rebut the presumption under Section 112 of the Evidence Act and in these circumstances, it cannot be held that the child born to the respondent was not the child of the appellant. The court further found that no satisfactory evidence has been adduced about any cruelty other than the cruelty referred above - of the wife having given birth to a child conceived by her otherwise than through him. 5. When this appeal came up for hearing, there is no representation for the respondent. The learned counsel for the appellant submits that the parties have now been residing separately ever since the birth of the child i.e.10.5.1989. An attempt has been made to settle the dispute harmoniously. Such attempts have not succeeded Mat.Appeal No.152/2004 3 as the whereabouts of the respondent could not be traced. Attempts are continuing. The learned counsel for the appellant submits that in the facts and circumstances of this case, the appellant may be given one more opportunity to adduce further evidence in support of his claim for divorce on the ground of cruelty. If further opportunities are granted, the appellant shall adduce proper evidence to prove the allegations of cruelty. Evidence of matrimonial cruelty meted out to the appellant by the respondent by her conduct as well as proof that she had given birth to a child not in the relationship with the appellant can also be adduced, it is submitted. 6. We do not want to make any expression of opinion on merits now. Suffice it to say that we are satisfied that the prayer of the appellant can be accepted though that prayer is highly belated. In the facts and circumstances of this case, we feel that the interests of justice demand that a further opportunity must be given to the appellant to adduce appropriate evidence. We do accept the prayer for remand, more because of the feeling that there is inadequacy of evidence to enable us to reach a correct and proper decision. We further observe that the appellant, Mat.Appeal No.152/2004 4 considering the elapse of time, shall be permitted to amend the petition if necessary also. 7. In the result, a) This appeal is allowed in part. b) The impugned order is set aside. c) The Family Court is directed to dispose of the matter afresh in accordance with law after giving the parties further opportunity to adduce all such further relevant evidence which they want to adduce. We make it clear that the parties shall be permitted to amend their pleadings also if a valid request to that effect is made before the court below. d) Registry shall forthwith forward records to the lower court. Parties shall appear before the Family Court, Kannur on 1.9.2011 to continue the proceedings. SD/- R.BASANT JUDGE SD/- K.SURENDRA MOHAN JUDGE /TRUE COPY/ CSS/ p.s.to judge