IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 Mat.Appeal.No. 133 of 2008() ---------------------------- AGAINST THE ORDER DATED 17/11/2007 IN IA 1670/05,IA 1672/05 IN OPHMA.65/2005 of FAMILY COURT, ALAPPUZHA .................... PETITIONER(S): APPELLANT ------------------------ DILIP KUTTAN, S/O.K.KUTTAN, AGED 34 YEARS, DWARAKA MUTTAM, HARIPPAD, NOW EMPLOYED AT F: 21, BLDG. 3748, LANE 1863, AL HOORA 318, MANAMA, KINGDOM OF BAHRAIN. BY ADV. SRI.K.N.VENUGOPALA PANICKER RESPONDENT(S): --------------- JUBY, D/O.SOMANATHAN, AGED ABOUT 29 YEARS, RESIDING AT `MY NEST', THONDANKULANGARA, ALAPPUZHA. ADV. SRI.GEORGE MATHEW FOR R1 SRI.SUNIL KUMAR A.G FOR R1 SRI.M.D.SASIKUMARAN FOR R1 SRI.P.J.JOSEPH FOR R1 SRI.BIJILY JOSEPH FOR R1 THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- Mat. Appeal No. 133 of 2008 ------------------------------------------------- Dated this the 7th day of April, 2009 JUDGMENT Basant,J. This Mat. Appeal is preferred by the husband against an order passed by the Family Court refusing his prayer to set aside the ex parte decree of divorce and a direction for return of 110 sovereigns of gold ornaments or in default, to pay an amount of Rs.4,75,000/- along with interest and costs. 2. There is no dispute on fundamental facts. The marriage between the spouses took place on 13/7/02. The appellant/husband left for his place of employment abroad on 25/7/02. Petitions claiming divorce and return of ornaments were filed before the Sub Court concerned in 2004. Long later, the husband returned to India on 13/12/05. In the O.P. claim was made for divorce on the ground of cruelty. There Mat. Appeal No. 133 of 2008 -: 2 :- was also a prayer for return of gold ornaments. After the Family Courts were constituted, the matter pending before the Sub Court reached the Family Court and the same was numbered as O.P.(HMA) No.65/05. On 5/3/05 the petitioner was set ex parte and the impugned ex parte decree for divorce and return of ornaments/value thereof was passed by the Family Court. 3. An application was filed long later on 22/12/05 to set aside the ex parte decree along with a prayer for condonation of the delay of 291 days in filing such application. The learned Judge of the Family Court by the impugned order came to the conclusion that the prayer is without any merit. Accordingly the learned Judge of the Family Court proceeded to pass the impugned order. 4. The learned counsel for the appellant contends that he was wrongly set ex parte and, at any rate, the delay ought to have been condoned and his application for setting aside the ex parte decree must have been allowed. 5. The learned counsel for the appellant submits that the appellant does not, at this juncture, want to assail the ex parte decree for divorce. His challenge is only against the ex parte decree for return of gold ornaments or pay the value thereof. Mat. Appeal No. 133 of 2008 -: 3 :- The learned counsel contends that he had no knowledge of the pendency of the proceedings. He was not informed of the same by any one and it was in these circumstances that the ex parte decree happened to be passed against him. 6. Before the Family Court there was evidence of P.W.1 and R.P.W.1. There was also Exts.B1 and B2 marked. The Family Court had come to the conclusion that the appellant was personally served. Notice has been sent in his correct address. The same has been acknowledged under the acknowledgment card. Moreover, the Family Court took note of the fact that the appellant’s mother had actually been served and she had entered appearance and contested the proceedings. However, at some later point of time, the respondent/wife realised the futility of the proceedings against the mother of the appellant and, in these circumstances, she as well as the sister of the appellant herein were deleted from the array of parties. 7. There is absolutely nothing which can persuade us to disagree with the conclusion of the Family Court that due service of the notice has been effected. We do also find no bona fides or merit in the contention of the appellant that he was not aware of the pendency of the proceedings, as his mother was admittedly served, she had entered appearance and had initially contested Mat. Appeal No. 133 of 2008 -: 4 :- the proceedings. After his return from his place of employment abroad, he is admittedly continuing to reside with his mother. In these circumstances, we are in total agreement with the Family Court that there is no merit in the contention that the appellant had not been served. We further agree with the conclusion of the Tribunal that it is idle to contend that the appellant did not have knowledge of the proceedings, his own mother having appeared and attempted to resist the proceedings. 8. The learned counsel for the appellant submits that in any view of the matter, a lenient view may be taken and an opportunity may be given to the appellant to raise and substantiate his contentions. We take note of the totality of inputs. Though we are convinced that the appellant’s prayer for setting aside the ex parte decree does not have merit or substance, the traditional preference of courts of justice for an adjudicated decision on merits is well known. The appellant is employed abroad. We feel that an opportunity can be given to the appellant to raise and substantiate his contentions; but for this luxury of a further opportunity the appellant will have to show his bona fides completely. Subject to appropriate conditions, the ex parte decree can be set aside and this appeal Mat. Appeal No. 133 of 2008 -: 5 :- can be allowed, we are satisfied. 9. In the result: (a) This appeal is allowed in part subject to conditions. (b) The impugned decree in so far as it relates to the direction for return of gold ornaments and in default to pay amounts alone shall stand set aside on condition that the appellant deposits the entire amount due under the impugned decree before the Family Court within a period of 60 days from this date. (c) If such deposit is made, the Family Court shall dispose of the matter afresh and while disposing of such matter, the reasons given or the relief granted already by the impugned decree shall not in any way influence the Family Court. (d) The appellant shall deposit the amount as already directed on or before 8/6/09. Parties shall appear before the Family Court on 9/6/09. If the amounts are deposited, as directed, the Family Court shall make deposit of the amount in any nationalised bank for a period of one year; such that the principal amount along with interest accrued can be released to the successful party. If the amount is not deposited as directed, the Family Court shall record that fact on 9/6/09 and the impugned ex parte decree shall remain in force thereafter. Mat. Appeal No. 133 of 2008 -: 6 :- (e) If the amount is deposited, the learned Judge of the Family Court shall ensure that the O.P. is disposed of afresh as expeditiously thereafter – at any rate, within a period of 6 months from 9/6/09. 10. It is made clear that this judgment shall not in any way affect the ex parte decree of divorce which must be reckoned having become final by now. Sd/- R. BASANT (Judge) Sd/- C.T. RAVIKUMAR (Judge) Nan/ //true copy// P.S. to Judge Mat. Appeal No. 133 of 2008 -: 7 :-