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 7TH JULY 2011 / 16TH ASHADHA 1933 Mat.Appeal.No. 36 of 2009() --------------------------- AGAINST THE ORDER DATED 06/09/2008 IN IA.999/2007 IN OP.872/2005 of FAMILY COURT, THIRUVANANTHAPURAM ................... APPELLANT/RESPONDENT : ----------------------------------------- SANIL.B., S/O.BHASKARAN NAIR, (MISTAKENLY STATED AS "BALAKRISHNAN NAIR" IN THE ORDER IMPUGNED) AGED 34 YEARS, RESIDING AT PVRA 21, PALAVILA LANE, N.C.C.ROAD, AMBALAMUKKU, PEROORKADA, THIRUVANANTHAPURAM. BY ADVS. SRI.SRINATH GIRISH SRI.E.NARAYANAN RESPONDENT / PETITIONER : -------------------------------------------- PRIYA I.V., D/O.INDIRA DEVI, AGED 29 YEARS, RESIDING AT "INDIRA BHAVAN", CHALATHATHOTTAM, KOTTUKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn THOTTATHIL B. RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. * * * * * * * * * * * * * * * * * * * * * * * * Mat.Appeal No.36 of 2009 --------------------------- Dated this the 7th day of July 2011 J U D G M E N T Thottathil B.Radhakrishnan, J. The appellant married the respondent. Ultimately, respondent sued for divorce and also for different reliefs including return of ornaments, past maintenance, future maintenance etc. 2. The application for divorce was granted ex parte. The appellant/husband has left that matter there. That is concluded. 3. O.P.No. 872/2005, relating to recovery of money, ornaments etc., was decreed ex parte. Within the time prescribed by law for such purpose, the appellant/husband applied to have set that aside. He produced a medical certificate issued by a Doctor of a Primary Health Center to the effect that the appellant was suffering from chronic hepatitis and Mat.Appeal No.36/2009 2 peptic ulcer and was under treatment on medical advice. The petitioner also tendered oral evidence. Yet, the court below held that he, not having challenged the ex parte divorce decree, there is no bona fides in the challenge to the ex parte decree in the suit for money. This is under challenge. 4. We are of the view that the Family Court has not approached the case from the proper perspective. Even if the divorce decree stands, the issues between the parties can revolve around the monetary claims, including return of ornaments, maintenance etc. Therefore, the court below ought not to have disposed of the matter on such a premise, especially when there was material on record disclosing sufficient cause for non-appearance of the husband at the time of trial. Also, he had applied within the time prescribed under law to have the ex parte decision set aside. In the aforesaid circumstances, we are of the view that the appeal deserves to be allowed, however, on terms. Mat.Appeal No.36/2009 3 In the result, i) This appeal is allowed setting aside the impugned decree on condition that the appellant will pay the respondent an amount of Rs.50,000/- (Rupees fifty thousand only) within a period of one month from now. Such payment will be provisional and subject to the result of the order/decree that may be finally passed in the original petition and would be reckoned in that regard. ii) The parties are directed to appear before the court below on 06/08/2011. The court below will ascertain the payment in terms of this judgment and list the case appropriately and make an endeavour to dispose it of, at the earliest. (sd/-) (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (sd/-) (K.SURENDRA MOHAN, JUDGE) jsr // True Copy// PA to Judge