IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 Mat.Appeal.No. 732 of 2009(D) ---------------------------- OP(DIV.)360/2009 of FAMILY COURT, KOTTAYAM .................... APPELLANT/PETITIONER IN THE O.P --------------- BAIJU JOSEPH, S/O.JOSEPH, AGED 34, VALAVUKUZHIKKAL HOUSE, PAMPADY.P.O, KOTTAYAM, REPRESENTED BY THE POWER OF ATTORNEY N.I.JOSEPH, AGED 61 YEARS, S/O.PHILIPPOSE, VALAVUKUZHIKKAL HOUSE, PAMPADY, KOTTAYAM. BY ADV. SRI.C.S.MANILAL RESPONDENT: --------------- BEXY ELIZABETH, D/O.BABU THADATHIL NINAN, VANIYA PURACKAL MOOLAYIL HOUSE, VAKATHANAM.P.O, CHANGANACHERRY, KOTTAYAM. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.732 of 2009 ------------------------------------- Dated this the 8th day of October, 2009 JUDGMENT BASANT, J. The appellant had filed a petition for divorce before the Family Court, Kottayam. His wife, the respondent, has not been served yet. The appellant is employed abroad. He did not furnish the correct address. When the matter - O.P(Div.) 360/09, came up for hearing on 11.06.09, the learned Judge of the Family Court proceeded to dismiss the application by the impugned order, which reads as follows: “Correct address not furnished. Petitioner absent. He is in abroad. The suit is for the marital relationship. So the presence of actual party is necessary. Hence petition dismissed for default. No costs.” 2. The learned counsel for the appellant submits that it was harsh and unkind to dismiss the petition filed by the appellant for the said reason. The divorce petition was filed only in April, 2009 and the impugned order was passed on 11.06.09. The counsel points out this fact to impress upon the Court that there was no wilful latches or negligence on the part of the Mat.Appeal No.732 of 2009 2 appellant in the prosecution of the divorce O.P filed by him. According to the learned counsel for the appellant, it was unnecessary to insist on personal appearance of the appellant employed abroad when the respondent had not even been served. Absence of the appellant could not and ought not to have, in these circumstances, been reckoned as a sufficient reason to invite an adverse order against him. The learned counsel submits that so far as the appellant is concerned, the correct address has already been furnished. He does not have in his possession any other address. The appellant is willing to take out necessary steps. He had actually taken steps for service by publication. The impugned order has been passed without taking note of all these circumstances. It is also pointed out that a petition has been filed to permit the appellant to be represented by a power of attorney holder. At least until service is effected, that prayer should have been accepted, submits the learned counsel. 3. Having considered all the relevant circumstances, we find merit in the grievance raised by the appellant. The respondent had not appeared before the court below and in these circumstances, we deem it unnecessary to wait for issue Mat.Appeal No.732 of 2009 3 and return of notice to the respondent. We are satisfied that the appellant must be permitted to appear through power of attorney holder/counsel at least till service is complete. We are also satisfied that the appellant must be given time to take necessary steps. 4. This Appeal is, in these circumstances, allowed. The impugned order is set aside. The court below shall dispose of O.P.(Div) No.360 of 2009 afresh in the light of the observations made. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-