IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Mat.Appeal.No. 903 of 2010() ---------------------------- OP.809/2009 of FAMILY COURT, MALAPPURAM .................... APPELLANT/RESPONDENT ----------------------------------- LINCY ANTONY, AGED 34 YEARS, D/O.T.V.ANTONY, RESIDING AT THAIPPARAMBIL HOUSE, VALAMBOOR P.O., VALAMBOOR DESOM, PERINTHALMANNA TALUK, MALAPPURAM. BY ADV. SRI.P.DALBI EMMANUEL SRI.A.V.JAMES RESPONDENT(S): PETITIONER ------------------------- SONY K.JOSEPH, AGED 40 YEARS, S/O.K.A.JOSEPH, RESIDING AT 46, ALUMKARA, MUMMY'S COLONY, KAWADIAR, THIRUVANANTHAPURAM TALUK AND DISTRICT. ADV. SRI.ROY CHACKO FOR R1 THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A.No. 903 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2011 JUDGMENT Joseph, J. The appellant challenges the order passed by the Family Court, Malappuram in O.P. No. 809 of 2009, which was filed by the respondent/husband seeking divorce on the ground of cruelty. The Family Court has granted a decree for divorce. 2. When the matter came up for admission, we also heard learned counsel for the respondent, Shri. Roy Chacko. 3. We have perused the order. What is stated in the order is as follows: “ Parties are Christians. Marriage and paternity are admitted. Husband had pleaded several instances of matrimonial cruelty. They are denied by the wife in the counter. There is supporting detailed oral evidence from husband as PW1 who has also stood the test of cross examination very ably. Then the Mat.A.No. 903 of 2010 2 burden has shifted upon the wife to adduce rebuttal evidence, and no evidence at all is adduced. Hence I uphold the ground of cruelty as duly proved sufficient to snap the marital tie. Regarding the other ground of desertion, admittedly the same falls short of the mandatory minimum period of two years even according to PW1. Hence the OP is allowed on the ground of cruelty alone.” 4. The appellant has a case that she was not given an opportunity. According to the appellant, the respondent was examined as PW1 and the case was posted for the appellant's evidence on 27.7.2010. On 27.7.2010 the appellant filed an application for adjournment of the case by one month, as her counsel was laid up with disc complaint. The Family Court adjourned the case to 3.8.2010. On that day evidence was adduced by the respondent and cross examination was also conducted. Subsequently the case was posted for evidence of the appellant on 30.8.2010. It is her further case that after Onam holidays, the appellant was not granted leave and hence she could not attend the court. Adjournment was sought for the very next Mat.A.No. 903 of 2010 3 day for her evidence. The Family Court, without appreciating the reasons, posted the case to 31.8.2010. Despite the earnest efforts of the counsel, the case was not adjourned. It is submitted that the case was posted on the very next day for orders, without giving her any opportunity. 5. The learned counsel for the respondent would submit that the fault is of the appellant and that opportunity was given to her. 6. We take note of the nature of the case, which is for dissolution of a marriage and that too on the ground of cruelty on the part of the wife. The Court has only stated that the husband has pleaded several instances of matrimonial cruelty, which were denied by the wife in the counter. There is evidence of PW1 and there is no evidence by the appellant. 7. We would think that this is a case where an opportunity should be given to the appellant to adduce evidence. But it cannot be an unconditional order. Mat.A.No. 903 of 2010 4 8. Accordingly we dispose of the appeal by setting aside the order passed by the Family Court in O.P. 809 of 2009 and remand the matter back to the Family Court for the parties to adduce evidence, on condition that the appellant will deposit Rs.2,500/- as cost within a period of one month from today in the Family Court. The respondent will be free to withdraw the said amount. If the appellant does not deposit the said amount, the order of the Family Court will stand and this appeal will stand dismissed. (K.M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm