IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 5964 of 2009(R) ------------------------- OP G&W.982/2008 of FAMILY COURT, KOTTAYAM .................... PETITIONER: --------------- SOJAN MATHEW, W/O. T.K. MATHEW, KARIKULAM HOUSE, NAZARETH HILL.P.O,KURAVILANGAD, KOTTAYAM, REPRESENTED BY POWER OF ATTORNY HOLDER SABU MATHEW, S/O.T.K. MATHEW, AGED 40, KARIKULAM HOUSE, NAZARETH HILL.P.O, KURAVILANGAD, KOTTAYAM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENTS: --------------- 1. SMITHA JOSE, D/O.P.C. JOSEPH, PITTAPPILLIL HOUSE, ENANALOOR.P.O, MUVATTUPUZHA, PIN - 686 673, NOW RESIDING AT 2144 N, FORGEUS AVE, TUESON, ARIZONA 85716 U.S.A 2. P.C. JOSEPH, AGED 65 YEARS, PITTAPPILLIL HOUSE, ERANANLOOR.P.O, MUVATTUPUZHA, ERNAKULAM DISTRICT. 3. ACCAMMA JOSEPH, W/O. P.C. JOSEPH, AGED 60 YEARS, PITTAPPILLIL HOUSE, ENANALLOOR.P.O, ERNAKULAM DISTRICT. ADV. SRI.A.V.THOMAS FOR R2 SRI.JOJO GEORGE FOR R2 SRI.NIDHI SAM JOHNS FOR R2 SRI.A.V.THOMAS FOR R3 SRI.G.SHRIKUMAR FOR R1 SRI.SREEJITH S.NAIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC. 5964 OF 2009 APPENDIX: PETITIONER'S EXTS: EXT.P1: TRUE COPY OF CERTIFICATE EOF MKARRIAGE DATED 30-9-08 ISSUED BY ST..MARY'S FORANE CHURCH. EXT.P2: TRUE COPY OF CERTIFICATE OF MARRIAGE DATED 26-6-03. EXT.P3: TRUE COPY OF BIRTH CERTIFICATE DATED 13-3-08 ISSUED BY THE REGISTRAR OF BIRTH AND DEATHS OF POTHANICADU GRAMA PANCHAYAT. EXT.P4: TRUE COPY OF DIVORCE O.P.NO. 981/08 BEFORE THE FAMILY COURT, ETTUMANOOR. EXT.P5: TRUE COPY OF O.P.(G & W)NO.982 OF 2008 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ETTUMANOOR. EXT.P6: TRUE COPY OF ORDER DATED 13-10-2008 IN O.P. NO. 981/2008. EXT.PP7: TRUE COPY OF ORDER DATED 13-10-2008 IN O.P.NO. 982/2008. EXT.P8: TRUE COPY OF ORDER DATED 29-1-2009 IN O.P. NO. 981/2008. EXT.P9: TRUE COPY OF ORDER DATED 29-1-09 IN O.P.982/2008. EXT.P10: TRUE COPY OF POWER OF ATTORNEY DATED 13-10-2008 EXECUTED BY THE PETITIONER IN FAVIOUR OF HIS BROTHER SABU MATHEW. EXT.P11: TRUE COPY OF PETITION DATED 13-9-008 FILED IN O.P. NO. 981/2008 FILED BY THE PETITIONER. EXT.P12: TRUE COPY OF PETITION DATED 13-9-08 FILED IN O.P. (G& W)NO. 982/2008 FILED BY THE PETITIONER. EXT.P13: TRUE COPY OF PROCEODINGS CERTIFYING THE SERVICE OF PROCESS TO THE 1ST RESPNODENT. EXT.P14: TRUE COPY OFJUDGMENT DATED 18-2-2009 IN OP. NO. 981/2008. EXT.P15: TRUE COPY OF JUDGMENT DATED 18-2-09 IN OP.(G&w)NO. 982/2008. KS. TRUE COPY P.S. TO JUDGE R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(C)No.5964 OF 2009 ----------------------------------------------------- DATED THIS THE 5th DAY OF AUGUST, 2009 J U D G M E N T Basant, J. The grievance of the petitioner is that O.P.No.981/08 filed by him for divorce against his wife, the respondent herein and O.P.(G&W)No.982/09 filed by him for custody of the child were dismissed by the Family Court by Exhibits P14 and P15 orders for the short reason that the parties were not present. Both parties are employed abroad. Their absence on that date, i.e.,on 18.2.2009 should not have been reckoned as crucial or vital in order to justify the throwing overboard of the two petitions, contends the learned counsel for the petitioner. The respondent has entered appearance. After discussions at the Bar, there is an agreement/understanding that both parties shall appear before the court below in November, 2009 and that Family Court can be directed to dispose of the matter afresh. 2. This petition is, in these circumstances, allowed. The impugned orders (Exhibits P14 and P15) are set aside. The W.P.(C)No.5964/09 -2- Family Court is directed to dispose of both O.Ps. afresh in accordance with law. The matter shall be called again before the Family Court on 7.11.2009. Both parties shall appear before the Family Court on that day. Needless to say, after counselling, if such counselling is not successful, parties shall be at liberty to apply before the Family Court for permission to return to their place of employment and permit them to be represented by their counsel/power of attorney holders in the course of the trial. 3. In the light of the agreement between the parties, we are ignoring the technicality that separate appeals may have been maintainable against the impugned orders. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn W.P.(C)No.5964/09 -3- R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(C)No.5964 OF 2009 ----------------------------------------------------- DATED THIS THE 22nd DAY OF JULY, 2009 O R D E R Basant, J. The grievance is against the dismissal of O.P.No.981/08 and O.P.(G&W)No.982/08 both for the reason that the petitioner/spouse/husband was not present before court. Admittedly, he was represented by a counsel. He claims that he had filed an application for permission to appear through a power of attorney holder as both, he as well as his spouse, the first respondent herein, are employed abroad and are residing there. The learned counsel for the petitioner submits that, in these circumstances, for failure of the petitioner in not appearing personally for counselling, the petitions ought not to have been dismissed and the Family Court must have ascertained a date on which both spouses will be present and available in India and must have posted the case on that day, rather than dismissing the application for default for the sole reason that the petitioner herein was not present. Even if he had come that would have W.P.(C)No.5964/09 -4- served no purpose, as the respondent was admittedly not available, it is submitted. 2. We have heard both sides. We feel that notwithstanding the technicality that the petitioner herein could have filed application for restoration or appeal under Section 19 of the Family Courts Act, interests of justice demands that parties must be directed to specify a date on which both of them shall be present for counselling and direct the court below to continue efforts at counselling on such date. Counsel for the petitioner submits that he can be available in September, 2009 or on any other later date, as directed in advance by the court. The learned counsel for the first respondent/spouse prays that time may be given to him to take specific instructions from the first respondent about the date on which the first respondent can be present in India. That request is accepted. Appropriate further direction shall be issued thereafter. 3. Call on 05.08.2009. R.BASANT, JUDGE. W.P.(C)No.5964/09 -5- M.C.HARI RANI, JUDGE. dsn