IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Mat.Appeal.No. 482 of 2007() ---------------------------- AGAINST THE ORDER DATED 17/05/2007 IN IA.60/07 IN OP.406/2006 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): --------------- SHIJI, AGED 27 YEARS, S/O.BALAN NAIR, THOLLAPPALLY PILASSERI HOUSE, CHELEMBRA AMSOM, MALAPPURAM DISTRICT. BY ADV. SRI.MANJERI SUNDERRAJ SMT.SUSAN JACOB SRI.B.PREMNATH (E) SRI.MANJERI SUBIN SUNDER RAJ RESPONDENT(S): --------------- RAJESH, AGED 32 YEARS, S/O.VENUGOPALAN, PUNNAKKOTTU HOUSE, PERINGAVU, VAZHAYUR AMSOM, MALAPPURAM DISTRICT. ADV. SRI.BABU S. NAIR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No.482 OF 2007 ----------------------------------------------------- DATED THIS THE 3rd DAY OF JULY, 2009 J U D G M E N T Basant, J. In this Mat Appeal, the appellant-wife challenges an order passed by the Family Court dismissing an application for setting aside the ex parte decree for declaration of nullity of marriage against her. The Family Court had earlier o n 8.5.2007 allowed the application subject to conditions, but on the ground that the said condition was not complied with the petition was finally dismissed on 17.5.2007. 2. A synoptic resume of the events which led to the impugned order appears to be relevant and necessary. 3. The solemnisation of marriage between the parties on 12.4.2006 is admitted. There was some strain in the matrimony and the spouses started living separately. A claim for maintenance under Section 125 of the Code of Criminal Procedure was filed by the wife and an application for declaration of nullity of marriage on the ground of unsoundness of mind was Mat.A.No.482/07 -2- filed by the husband. The original petition for declaration of nullity was filed as late as on 25-7-2006. 4. M.C.No.542/06 and O.P.No.406/06 were, it is submitted, being posted together from date to date, as the parties in the two petitions are common. But, when the matter came up on 1.11.2006, the M.C. was posted to 21.11.2006 whereas the O.P was posted to 20.11.2006. The appellant/wife submits that she was not aware of the fact that the cases were posted to different dates. She assumed that as earlier done, both cases were posted to the same day; i.e., 21.11.2006. 5. When the O.P. came up for hearing on 20.11.2006, the appellant/petitioner was absent. The learned Judge of the Family Court set her ex parte and posted the O.P. for judgment to 22.11.2006. Unaware of that fact, the appellant appeared before Court on 21.11.2006. She filed a counter in the O.P. on 21.11.2006. She came to know then that in the O.P. she had already been set ex parte on 21.11.2006. On coming to know of this, she filed I.A.No.1384/06 on 21.11.2006 itself to set aside the order setting her ex parte and to permit her to participate in Mat.A.No.482/07 -3- the proceedings. That petition was dismissed by the Family Court on the technical ground that copy of the order setting aside her ex parte had not been produced by her. The case (O.P.) was taken up for disposal on 22.11.2006 and ultimately, an ex parte order declaring her marriage with the respondent to be null and void was passed on 23.11.2006. 6. We need not pursue the further sequence of events in the M.C., as we are informed that the M.C. is pending even now. 7. Having suffered an ex parte order declaring her marriage with the respondent to be null and void, the petitioner filed I.A.No.60/07 on 10.1.2007 to set aside the ex parte order,after getting certified copy of the ex parte order dated 23.11.2006. The Family Court by the impugned order dated 8.5.2007 allowed the said petition, but subject to, what the appellant describes to be prohibitive terms. She was permitted to pay an amount of Rs.5,000/- as costs to the District Legal Services Authority, Manjeri. She was further directed to pay an amount of Rs.5,000/- as costs to her husband - the respondent herein. That order was passed on 8.5.2007 and it was directed Mat.A.No.482/07 -4- that the cost must be paid by 3PM on 16.5.2007. The case was called on 17.5.2007 and as the payment had not been made, I.A.No.60/07 was dismissed. The appellant impugns the orders dated 8.5.2007 and 17.5.2007 in I.A.No.60/07 in this appeal. 8. The appellant had come to this Court with Writ Petition No.25783/07 to challenge the impugned orders earlier. But that petition was not pressed with liberty to file this Mat.Appeal. Accordingly, the Mat.Appeal has been filed. The delay in filing the Mat.Appeal has already been condoned. 9. We have heard the learned counsel for the appellant- wife and the respondent-husband. The counsel for the appellant- wife contends that the sequence of events clearly shows that justice has been denied to the appellant. Accepting the entire facts narrated above, the indiscretion committed by the appellant was only that she assumed that both cases were posted to 21.11.2006 while the O.P. actually was posted to 20.11.2006. On the very next day, i.e., on 21.11.2006, when she realised her mistake, she had filed I.A.No.1384/06. The counsel points out that her bona fides can be discerned from the fact that on Mat.A.No.482/07 -5- 21.11.2007 assuming that the O.P. was also posted to that date, she had filed her counter statement dated 21.11.2007 also. For the mistake in noting down of the date by one day, she should not have been put to such agony and trauma, contends the learned counsel for the appellant. 10. The learned counsel for the appellant submits that the Family Court took up a most unrealistic and unreasonable view in imposing the condition that a total cost of Rs.10,000/- must be paid. We agree with the learned counsel for the appellant that it was totally unnecessary and unreasonable – nay, perverse, to direct the appellant to pay an amount of Rs.5,000/- as costs to the District Legal Services Authority. The jurisdiction to direct the parties to pay costs was exercised incorrectly and perversely, contends the learned counsel and we are inclined to agree. In a situation like this, one fails to understand why at all costs should be ordered to the Legal Services Authority. It is true that in situations where both parties are at fault, courts do invoke their discretions to direct payment of costs to the District Legal Services Authority or the mediation council. But, those must be Mat.A.No.482/07 -6- only be in exceptional cases, where grant of cost to the adversary might not be conducive to the interests of justice. No such situation, evidently exists in this case and we are persuaded to condemn the course adopted by the Family Court in directing payment of costs to the District Legal Services Authority. 11. Coming to the costs ordered to be paid by the wife to the respondent also, we are not satisfied that it was necessary in the interests of justice in this case to direct the appellant to pay any cost to the respondent. It is true that the matter was dragged on. But, we are unable to place the entire blame for such protraction at the doors of the appellant, who had as early as on 21.11.2006, within one day of the order, setting her ex parte and before the ex parte order was passed, filed I.A.No.1384/06 to get that order overturned. In any view of the matter, we are convinced that interests of justice will be served ideally by directing that the ex parte order be set aside without any condition as to payment of costs. 12. In the result: (a) this petition is allowed. Mat.A.No.482/07 -7- (b) the impugned orders dated 8.5.2007 and 17.5.2007 are set aside. (c) the ex parte order passed against the appellant in O.P.No.406/06 on 23.11.2006 is set aside without any condition. (d). The Family Court is directed to dispose of the matter afresh in accordance with law. (e). Both parties are directed to appear before the Family Court on 10.8.2009 to continue the proceedings. Considering the long pendency of this proceedings, we direct the Family Court to dispose of the O.P. as expeditiously thereafter – at any rate, within a period of four months from 10.8.2009. (f) compliance shall be reported to this Court. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn