IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 OP (FC).No. 2719 of 2011(R) --------------------------- AGAINST THE ORDER DATED 02/07/2011 IN IA 787/2010 IN OP.1303/2005 of FAMILY COURT,ERNAKULAM .................... PETITIONER ------------------------------ P.A.THOMAS, AGED 52 YEARS, S/O.P.V.ABRAHAM, RESIDING AT XXXV/1302, SANGAM COMPLEX, ST.MARTIN ROAD, PALARIVATTOM, ERNAKULAM DISTRICT. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT(S): --------------- PREETHI THOMAS, AGED 43 YEARS, D/O.M.G.THOMAS, RESIDING AT 4C, FALCON HEIGHTS, SOUTH JANATHA ROAD, PALARIVATTOM, ERNAKULAM DISTRICT. ADV. SRI.C.S.MANU THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 18/08/2011, ALONG WITH WPC NO. 33822 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FC).2719/11 PETITIONER'S EXHIBITS: EXT.P1:TRUE COPY OF THE O.P.NO.1303/2005 FILED BY THE PETITIONER. EXT.P2: TRUE COPY OF THE INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 12TH JUNE, 2009. EXT.P3: TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC.994.09. EXT.P4: TRUE COPY OF THE JUDGMENT IN WPC.5386/09 DATED 26.2.2009. EXT.P5: TRUE COPY OF THE B DIARY PROCEEDINGS. EXT.P6: TRUE COPY OF THE JUDGMENT IN O.P.NO.1303/05 DATED 21.1.2010. EXT.P7: TRUE COPY OF THE I.A.NO.787/10. EXT.P8: TRUE COPY OF THE OBJECTION FILED BY THIS PETITIONER IN I.A.NO.787/10. EXT.P9: TRUE COPY OF THE ORDER IN I.A.NO.787/10 IN OP.NO.1303/05 DATED 2.7.2011. /TRUE COPY/ PA TO JUDGE. THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- O.P(FC).Nos.2719 OF 2011 & W.P(C).No.33822 OF 2004 ------------------------------------ Dated this the 18th day of August, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.We heard learned counsel for the petitioner quite in extenso yesterday and had granted an order noticing the different aspects of the litigations in the family. We were then told that W.P(C).33822/04 between the parties is pending. We, therefore, ordered that matter also be posted. It is hence that these matters are listed today. 2.We have heard Adv.M.S.Unnikrishnan on behalf of the husband in W.P(C).33822/04 where he faced an interim order issued by this Court at the instance of the wife, staying the operation of an order of temporary injunction. That order of stay was granted some time in 2004 and for the last 5 years, parties stand regulated thereby. OPFC.2719/11 2 3.In so far as W.P(C).2719/11 is concerned, following what is contained in our order passed yesterday, we are of the view that though the grounds for divorce in the application by the husband were cruelty by the wife and irretrievable break down of the matrimonial tie, the ex parte decree granted by the family court is only on the ground of cruelty. We are of the view that having regard to the earlier judgment rendered by the Bench here in W.P(C).994/09 and taking into consideration the different aspects of the matter, including the fact that the couple has two children, one of whom is a major by now, we think that the litigation should end without being dragged on for long. Learned counsel for the husband is justified in pointing out that her client is now 52 years of age and the litigation cannot be dragged on indefinitely as if it is litigation for property. 4.The aforesaid requirement for the conclusion of the litigation on merits is one of the motivating factors that prompted us to go beyond the plea of the petitioner that the impugned order is a cryptic one. We find that the learned OPFC.2719/11 3 Judge of the family court has expressed satisfaction on the ground raised by the wife to have the ex parte decree set aside. As noted in yesterday’s order, the divorce decree was passed ex parte on 21.1.2010 and the application to set aside it was filed promptly on 19.2.2010, that is, within the period prescribed by law. That was ultimately decided only on 2.7.2011. We would not blame the parties for that one year before the family court. Having looked into the contents and nature of the ex parte decree and having been satisfied of the condition imposed by the family court while setting aside the ex parte decree, we are satisfied that the order impugned in W.P(C).2719/11 needs to stand, having regard to the totality of the facts and circumstances. 5.We have put it in clear terms to the learned counsel for the wife and husband that this litigation cannot be dragged on any further, which is the gravest apprehension of the husband. We have recorded it even yesterday. The learned Judge of the family court will bestow attention to ensure that all litigations pending, as of now, between the parties are OPFC.2719/11 4 taken up in one go, if necessary though the commissioner for recording evidence, and decide upon at the earliest, at any rate, on or before 31.12.2011. 6.Having noticed that the order impugned in W.P(C).33822/04 stands suspended by the interim order granted by this Court on 23.11.2004, which is in force, we are of the view that the situation obtained as per that order should continue until final disposal of the main matter and we close W.P(C). 33822/04 by ordering that the status obtained as on today in terms of the interim orders in that case will continue to regulate the parties till the disposal of the suit in terms of the judgment. Both the writ petitions are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb.17/8.