IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 OPFC.No. 3986 of 2011 (R) ======================= OP.1256/2010 of FAMILY COURT, KOTTAYAM PETITIONER(S) ============= THOMAS JOSEPH, AGED 33 YEARS, S/O.THOMAS ABRAHAM PRAKKAT HOUSE VADAVANTHOOR P.O KOTTAYAM VIJAYAPURAM VILLAGE KOTTAYAM TALUK VADAVATHOOR KARA. BY ADVS.DR.SEBASTIAN CHAMPAPPILLY SRI.KURIAN ANTONY EDASSERY SRI.NISHIN GEORGE VIJAYABABU RESPONDENT(S) =============== LATHA SUSAN MAHTHEWS, AGED 31 YEARS, D/O.MATHEW V PAUL VAZHAYIL HOUSE MALLAPPALLY P.O. THIRUVALLA PATHANAMTHITTA DISTRICT BY ADV. SMT.ANNIE GEORGE THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RK OPFC.No. 3986 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF O.P.NO.1256 OF 2010 DATED 22-10-2010. EXT.P2: COPY OF THE JUDGEMENT DATED 5-5-2011 IN O.P.NO.1256 OF 2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE RK Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. = = = = = = = = = = = = = = = = = = = = = = = = OP(FC).No.3986 of 2011-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of December, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.Petitioner married the respondent on 3.1.2004. Two children were born to them. Ultimately, in 2010, they filed an application under Section 10A of the Indian Divorce Act before the Family Court, Kottayam at Ettumanoor for divorce on mutual consent. That was allowed as per Ext.P2 judgment dated 5th May, 2011. 2.This original petition is filed by the husband under Article 227 of the Constitution of India seeking an order annulling the aforesaid Ext.P2 judgment granting divorce on mutual consent. The respondent wife appeared in answer to this original petition. The petitioner and the respondent have filed separate affidavits before this Court. OPFC3986/11 -: 2 :- 3.Though the facts may seem strange, the situation may be one where truth is stranger than fiction. It appears that the differences of opinion that led to the issuance of Ext.P2 judgment by the Family Court did not continue for long and that judgment was not known to the knowledge of the parents or relatives of the spouses, it is stated. While the wife remained in her home after Ext.P2, the husband's parents requested her to go over and stay with them. She went and stayed with the parents-in-law and the two children. The husband was then abroad. When the husband arrived on leave, they again grew in intimacy and the wife delivered yet another child. It is stated that they had also kept the factum of a divorce having been granted by the court below away from social eye. 4.We have bestowed our anxious consideration to the different aspects of the matter. Divorce is not a matter to be granted at asking and to be vacated OPFC3986/11 -: 3 :- when sought for. The paramount interest of the different provisions, including in Sections 10A of the Indian Divorce Act, is not to grant divorce but to make every effort for possible reconciliation and continuance of the family relationship. This exercise is zealously carried out by the judiciary with the supporting arms of social service sectors, including counsellors, mediators etc. The very provision for a gestation period of six months for application for divorce on mutual consent is a pointer to this aspect. 5.In the case in hand, the fact of the matter remains that the divorced couple had two children and now they have yet another child which is a progeny of a socially accepted cohabitation in what can be called a matrimonial home in the eyes of the parents of the couple, their near relatives and the public. Paternity of a child is a cardinal issue. Vagrancy is also to be avoided. The totality of the facts and circumstances inspires us to take the view that Ext.P2 judgment OPFC3986/11 -: 4 :- was not one of the bed and board, a mensa et thoro, and needs to be vacated to secure justice not only to the petitioner and the respondent but also to the three children born to them. For the aforesaid reasons, we allow this Original Petition. Ext.P2 judgment dated 5.5.2011 in O.P.1256 of 2010 of the Family Court, Kottayam at Ettumanoor is hereby annulled and it is declared that the petitioner and respondent shall be treated to continue to be man and wife for all intents and purposes as if Ext.P2 was never issued. Thottathil B.Radhakrishnan, Judge. C.T.Ravikumar, Judge. Sha/