IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 Mat.Appeal.No. 765 of 2009() ---------------------------- I.A.NO.2524/07 & 2525/07 IN OPHMA.280/2004 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT/RESPONDENT/PETITIONER IN IA. ----------------------------------------------------- K.K.CHANDRIKA DEVI,D/O.KUNJI, KUNNUMPURATHU VEEDU,VAMANAPURAM, ANAKUDY P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): PETITIONER/RESPONDENTS IN IA. -------------------------------------------- P.K.DAS,S/O.KRISHNAN, RAMA MANDIRAM,POWDIKONAM, CHEMPAZHANTHY P.O.,THIRUVANANTHAPURAM. ADV. SRI.SAJU.S.A FOR R1 SRI.T.GOPAKUMAR (VATTAKARIKAKOM) FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- C.M. Appl.No.2798 of 2009 & Mat. Appeal No. 765 of 2009 ------------------------------------------------- Dated this the 2nd day of November, 2010 ORDER/JUDGMENT Basant,J. C.M.Appl.No.2798/09: This application is to condone the delay of 26 days in filing a Mat Appeal. The Mat. Appeal, in turn, is directed against the dismissal of an application to set aside an ex parte decree. 2. We have heard both counsel. The application for condonation of delay is opposed. Notwithstanding the opposition, we are satisfied that a lenient view can be taken and the delay can be condoned. We have heard both counsel on merits also and we are proceedings to dispose of the appeal straightaway. This petition is, in these circumstances, allowed. Delay condoned. Mat. Appeal No. 765 of 2009 -: 2 :- Mat. Appeal No.765/09: This appeal has come up for hearing on admission after condonation of delay. The respondent/husband is represented by a counsel. We have heard the submissions of the counsel. 2. To the vitally relevant facts first of all. The marriage between the spouses took place on 28/8/91. One child now aged about 11 years is born in the wed-lock. The spouses allegedly started separate residence on 19/11/01. Allegedly after waiting for 3 years, the respondent/husband filed O.P. (HMA) No.280/04 claiming divorce. 2. The O.P. was admitted. Notice was ordered. The matter was initially posted for appearance to 5/4/04. As many as 8 adjournments were granted. The learned Judge of the Family Court after satisfying himself that notice has been served set the appellant ex parte long later on 21/2/05. The ex parte order granting divorce was granted on 3/3/05. 3. Admittedly the wife came to know of the ex parte order in March, 2006. She did not take any action. Long later, she filed an application to set aside the ex parte order along with an application for condonation of delay. The appellant/wife who admittedly came to know of the ex parte order in March, 2006 moved the court below to get the ex parte order set aside on Mat. Appeal No. 765 of 2009 -: 3 :- 9/7/07. The application for setting aside the ex parte order was filed along an the application to condone the delay of 826 days. 4. The court below by the impugned order dismissed both applications. The court below took note of the fact that admittedly the wife had come to know of the ex parte order of dissolution of marriage in March, 2006. She had not taken any step to get the ex parte order set aside till 9/7/07. In these circumstances, the court below proceeded to pass the impugned order. 5. It will be apposite straightaway to mention that the husband has got re-married on 29/6/07. That fact is also not disputed. 6. The learned counsel for the appellant has advanced detailed arguments. The appellant/wife claims to be aggrieved by the impugned order. What is her grievance? The learned counsel submits that the husband is an Advocate. After retirement from Government service, he has got enrolled as a lawyer. The appellant was defrauded. An order of divorce was obtained ex parte. The wife did come to know that later. All the time the husband and wife were residing together. After coming to know of the order of divorce, the wife was assured that such an order was secured only to satisfy his mother who Mat. Appeal No. 765 of 2009 -: 4 :- was not well disposed to the appellant/wife. The wife swallowed this explanation and kept quite. Only when her husband re- married she thought it necessary to go before Court with the petition to set aside the ex parte order. 7. Before the court below, there was absolutely no material placed to show that fraud was played on the wife by the husband to induce her not to challenge the ex parte order of divorce which she had knowledge of. That the respondent/husband is a lawyer - who had taken to the noble profession of law after his retirement on superannuation, is by itself no reason to readily sail to a conclusion of fraud. Absolutely no materials are available to indicate that fraud was played on the wife or that the wife who was admittedly served was persuaded not to take part in the proceedings for divorce. We note that admittedly the husband has got re-married also. In the total absence of even any remote indications to suggest the existence of the alleged fraud, we are of the opinion that the court below was eminently justified in not allowing the application to set aside the ex parte order after condoning the long delay of 826 days. We cannot lose sight of the fact that another human life has also got involved in the controversy by the re-marriage of the husband on 29/6/07 more than 15 months after the wife became aware of the Mat. Appeal No. 765 of 2009 -: 5 :- ex parte order. We are not persuaded to agree that the appeal merits admission. The appeal, we are satisfied, deserves to be dismissed in limine. 8. This appeal is, in these circumstances, dismissed. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge