IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 Mat.Appeal.No. 500 of 2011() ---------------------------- OP.1003/2010 of FAMILY COURT, KOTTAYAM .................... APPELLANT/RESPONDENT: --------------- K.SHAJI, AGED 40 YEARS, S/O.KARUNAKARAN SHYAMALA BHAVAN, ARUVIKIZHY PO, ANIKADU, KOTTAYAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, BHUVANESWARAN, S/O.VIKARAMAN, KATTUNGAL VELI (H) PARAVOOR PO, ALAPPUZHA. BY ADV. SRI.A.K.HARIDAS RESPONDENT/PETITIONER: --------------- RAJULA.S, BHARATHAN, D/O.S BHARATHAN AGED 34 YEARS, KOVILAKATHUVELIYIL HOUSE THURAVOOR PO, KUTHIATHODU,CHERTHALA TALUK ALAPPUZHA DISTRICT PIN 686 524. ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.G.PADMAKUMAR SMT.V.T.LITHA SMT.P.J.JINIMOL SRI.S.SARATH SMT.T.M.BINITHA SMT.AFSANA ASHRAF SMT.SUNANDA SUKUMARAN SMT.N.ASWATHY SMT.DIVYA KRISHNAN THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2011, ALONG WITH TPC NO. 90 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & K.SURENDRA MOHAN,JJ. ----------------------------------------------- Mat Appeal No.500 of 2011& Tr.P(C) No.90 of 2011 ----------------------------------------------- Dated this the 4th day of August, 2011 JUDGMENT Thottathil B. Radhakrishnan,J. These two cases reflect miscarriage of justice resulting from the manner in which the parties conducted themselves in relation to a matrimonial dispute. 2. The wife sued the husband in the Family Court, Kottayam at Ettumannur for divorce. In his wisdom, the husband applied to the Family Court, Alappuzha for restitution of conjugal rights. The wife filed the captioned transfer petition before this Court and obtained an order of stay of the husband's petition. Grounds C and E of the transfer petition clearly shows that the wife was aware that separate disposal of the two matters may result in conflict of findings. 3. In the Family Court at Ettumannur, the wife's application for divorce was being adjourned after the husband entered appearance. On 25.3.2011, he was set exparte and, based solely on the testimony of the wife and the certificate of marriage the decree of divorce was granted, exparte on Mat Appeal No.500 of 2011& Tr.P(C) No.90 of 2011 2 8.4.2011, the captioned Mat. appeal is against that. 4. Without elaborating further, it can be said that the situation in hand results in the possibility of the conflict of orders, even rendering infructuous, the application for restitution of conjugal rights though, as of now, that proceeding stands stayed by this Court in the Transfer Petition. 5. We are therefore inclined to vacate the divorce decree granted in O.P.No.1003/10 by the Family Court, Kottayam at Ettumannurr and remit that matter and allow the Transfer Petition ordering transfer of O.P.No.1059/10 from the Family Court, Alappuzha to the Family Court, Kottayam, at Ettumannur, for trial and disposal by the same court. It would be open to the Family Court, Kottayam at Ettumannur, to consider whether joint trial is necessary in the matters. 6. One thing is certain the parties do not dispute the marriage. One wants divorce. The other wants restitution of conjugal rights. The marriage is supported by the certificate which is on record in the divorce petition filed by the wife. The marriage was in February 2003. The husband is working in a Mat Appeal No.500 of 2011& Tr.P(C) No.90 of 2011 3 Company in Dubai. The couple remain issueless. We are of the view that it is only appropriate that the husband pays the wife an amount of Rs.50,000/- towards maintenance as a condition for the order of remit that we would make hereby, however that, such amount would ultimately be given credit to against any amount that would be found payable by the husband in proceedings for maintenance. In the result :- 1. Mat. Appeal No.500/2011 is allowed and the judgment and decree dated 8/4/2011 in O.P.No.1003/2010 of the Family Court, Kottayam at Ettumannur is set aside and the case is remitted for trial and disposal in accordance with law. The order of the court below setting aside the husband exparte in that original petition is also set aside hereby. 2. Appellant in Mat. appeal No.500/2011 is directed to pay the respondent an amount of Rs.50,000/- towards maintenance in terms of this judgment within a period of 45 days from now. If such Mat Appeal No.500 of 2011& Tr.P(C) No.90 of 2011 4 amount is not remitted this judgment will stand vacated, in so far as the Mat. appeal is concerned. 3. Transfer petition No.90/2011 is allowed. O.P.No. 1059/2010 of the Family Court, Alappuzha is transferred to Family Court, Kottayam at Ettumannur. Parties will take note of this order of transfer and appear accordingly, to avoid fresh notice from the Family Court, Kottayam at Ettumannur regarding the said transfered proceedings. They will be at liberty to mark their appearance. 4. We record the submission on behalf of the husband that owing to his avocation, he may be granted two months from today to mark his appearance before the Family Court Kottayam, at Ettumannur. The learned Judge of the Family Court, Kottayam will post the remitted case and the transferred case appropriately. 5. We also record the request on behalf of the wife Mat Appeal No.500 of 2011& Tr.P(C) No.90 of 2011 5 for expeditious consideration and disposal of both matters. The learned Judge of the Family Court will sympathetically consider any request in this regard. 6. Parties are directed to bear their respective costs in these matters. THOTTATHIL B. RADHAKRISHNAN, JUDGE. K.SURENDRA MOHAN, JUDGE. rkc