IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 Mat.Appeal.No. 234 of 2005() ---------------------------- OP.971/2002 of FAMILY COURT,THRISSUR .................... APPELLANT/RESPONDENT -------------------------------- JAMES ANTONY, AGED 48, S/O.ANTONY, MANIAMKOT HOUSE, KUMBALAM, KOCHI-682506. BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT: PETITIONER ----------------------- SHEELA JAMES, AGED 44, D/O.POULOSE PULLELY, MURINGOOR P.O., TRISSUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER P.O.POULOSE, PULLELY HOUSE, MURINGOOR P.O., TRISSSUR DISTRICT. BY ADVS. SRI.V.RAJENDRAN FOR R1 SRI.P.SAMSUDIN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NO.2347 OF 2005 IN MAT. APPEAL NO. 234 OF 2005. DISMISSED 8.7.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO. 234 OF 2005 ---------------------------------------------------------------- Dated this the 8th day of July, 2008 JUDGMENT Harun-Ul-Rashid, J. The appellant is the respondent in O.P. No.971 of 2002 on the file of the Family Court, Thrissur. The respondent herein filed the Original Petition for realisation of Rs.5,60,000/- together with interest at 12% being the amount given to the husband as well as the value of the gold ornaments. The parties are referred to as petitioner and respondent as in the Original Petition. 2. The petitioner and respondent in the Original Petition are respectively the wife and husband. Their marriage was solemnised on 10.1.1988. Two children were born in the wedlock. It is the case of the petitioner that on the date of engagement, her father had given Rs.2,00,000/- to the respondent as marriage gift and that she was given 20 sovereigns out of which, it is alleged, 15 sovereigns were misappropriated by the respondent. It is her further case that the amount of Rs.2,00,000/- given to the respondent was spent by him for purchasing a property in his name. According to the petitioner, her husband behaved cruelly towards her and also assaulted her and that she apprehends danger to her life. Mat. Appeal No.234/2005 2 Since the marital relationship between the parties has broken irretrievably, she filed O.P. No.4564 of 2002 before the Family Court at Bandra, Mumbai for a decree of divorce and maintenance. Her husband also filed O.P. No.844 of 2002 for judicial separation. On these facts, O.P. No.971 of 2002 was filed for recovery of the said amount. 3. The respondent remained ex parte. On the basis of the affidavit filed by the petitioner in support of her contentions, a decree was passed in favour of the petitioner for recovery of Rs.2,60,000/- together with interest at the rate of 6% from the date of the decree. It is submitted by the appellant that on receipt of notice, he entered appearance before the court below and filed objection denying the allegations levelled against him and praying for dismissal of the Original Petition. According to him, the Family Court posted the matter to 28.10.2003 and that he could not appear on that day as he was laid up and under medication. He submitted before us that the petitioner/wife has failed to prove that money and ornaments were entrusted with him and that if an opportunity is given to him to contest the matter on merits, the said fact can be proved. It is also submitted that he had filed a counter statement denying the allegations. He has requested that the explanation offered by him may be accepted and an opportunity may be given to him to put forward his case. Mat. Appeal No.234/2005 3 4. We heard both sides. We have noticed the fact that several litigations are pending between the parties in the court at Mumbai. It is brought to our notice that the Court has allowed the Original Petition filed by the wife and allowed custody of the minor children to the petitioner/mother and also directed the husband to pay maintenance to the wife at the rate of Rs.5,000/- per month and Rs.2,000/- each to the children. It has also come out in evidence that the Original Petition filed by the husband for judicial separation was dismissed for default since he was absent. For a decision on merits, in the interest of justice, we are of the view that an opportunity should be given to the appellant/husband to contest his case on merits. The impugned order is hence set aside. The Family Court, Thrissur is, therefore, directed to consider the matter afresh and dispose of the same on merits after giving an opportunity to the parties to adduce evidence, if any. The Matrimonial Appeal is allowed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.234/2005 4 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. MAT.APPEAL NO. 234/2005 JUDGMENT 8th July, 2008 Mat. Appeal No.234/2005 5