IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 Mat.Appeal.No. 70 of 2008() --------------------------- OPDIV.117/2006 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR .................... APPELLANT/ PETITIONER IN OP: ----------------------------- JO MARTIN, AGED 37 YEARS, S/O.K.V.THOMAS KURICHULLIL HOUSE, ERUMELI SOUTH VILLAGE, ERUMELI KARA, ERUMELI P.O., KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY ADVS. DR.SEBASTIAN CHAMPAPPILLY SMT.ANNIE GEORGE SMT.RINTA GEORGE RESPONDENT: RESPONDENT: ------------------------ BETSY, AGED ABOUT 32 YEARS, D/O.K.T.SEBASTIAN, KUNJAVU HOUSE, 4/5. M.I.G.SAVERA, C.H.S, V.E.NAGAR, KURIA WEST, MUMBAI, MAHARASHTRA. BY // THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO. 70 OF 2008 ---------------------------------------------------------------- Dated this the 4th day of August, 2008 JUDGMENT Harun-Ul-Rashid, J. The petitioner in O.P.(Div.)No.117 of 2006 on the file of the Family Court, Kottayam at Ettumanoor is the appellant. The appeal is directed against the dismissal of the Original Petition filed by the appellant for a declaration that the marriage between the parties is null and void. The parties herein are referred to as the petitioner and respondent as in the Original Petition. 2. The petitioner is the husband and the respondent is his wife. Their marriage was solemnised on 11.9.2004. According to the petitioner, his wife is suffering from mental illness and impotency and this was suppressed by her parents at the time of marriage. The petitioner contended that the marriage was not consummated due to the incapacity of the respondent/wife. Therefore, he seeks a decree to annul the marriage. Mat. Appeal No.70/2008 2 The respondent/wife opposed the the petition. She emphatically denied the allegations levelled against her. She contended that the marriage was fixed after prolonged negotiation and discussion by the relatives. She further contended that the allegations that she was suffering from mental disorder, that the marriage was not consummated and that she was impotent are not correct. 3. The evidence in the case consists of the oral evidence of the husband and wife who were examined as PW.1 and RW.1 respectively and Ext.A1 marriage certificate. After discussing the materials on record, the Family Court held that apart from the interested testimony of PW.1, there is no independent evidence to prove the allegations levelled against the respondent/wife and in that premise dismissed the Original Petition. 4. It is submitted by the learned counsel appearing for the appellant/petitioner that though the respondent/wife was directed to appear before the Family Court on 26.4.2007and again on 30.4.2007, she failed to appear and hence she was set ex parte and a decree of nullity of marriage was passed on 30.4.2007. Subsequently, the ex parte decree was set aside and the respondent/wife was allowed to contest the case. It is further submitted that the Family Court completed the cross-examination of the Mat. Appeal No.70/2008 3 appellant and adjourned the case to 22.10.2007 for cross-examination of the respondent. It is contended that since the counsel appearing for the petitioner/husband could not reach the court in time, the court below closed the evidence and adjourned the case for judgment to 5.11.2007. It is further submitted that though the counsel filed an interlocutory application on 5.11.2007 under Order XLVII Rule 1 C.P.C. to review the order and to permit him to cross-examine the respondent, the said application was dismissed and that due to reasons beyond the control of the appellant/petitioner, the case was decided without cross-examining the respondent/wife. Counsel also submitted that on the basis of the evidence collected, the Eparchial Tribunal by order dated 20.11.2007 declared the marriage between the parties as null and void on the ground of inability to assume essential obligation of marriage due to causes of a psychic nature on the part of the respondent. It is, therefore, submitted that the sacramental marriage between the petitioner and respondent is non est and what remains is only the civil consequences and that the protracted proceedings can only inflict agony on the appellant/husband and deprive him of his natural rights. It is further contended that the respondent/wife filed proof affidavit in lieu of chief examination and hence, she could not be cross-examined. Counsel, therefore, prays that an opportunity may be given to the appellant/husband in order to lead evidence to substantiate Mat. Appeal No.70/2008 4 his case. 5. We find that the respondent is not serious in contesting the case. Though we had directed the parties to be present before this Court on 18.3.2008, only the appellant appeared. This Court issued notice to the parties and accordingly both parties appeared on 7.4.2008. We had appointed Adv. Smt. Ambika Devi as mediator. We have also talked to the parties extensively and referred them to Dr. Promodu's Institute of Sexual and Marital Health at Panampilly Nagar, Ernakulam to meet the Psychologist attached to the said clinic. We have also received a letter dated 4.6.2008 from the doctor stating that evaluation could not be done as only the appellant turned up, but not the respondent. Thereafter, the respondent remained absent inspite of several directions from this Court directing her to be present. In the facts and circumstances stated above, we are of the view that an opportunity should be given to the appellant to adduce further evidence. In the result, the judgment and decree passed by the Family Court in O.P.(Div.) No.117 of 2006 is set aside and the case is remanded for de novo consideration after affording an opportunity to the appellant to cross- examine RW.1. The parties are directed to be present before the Family Mat. Appeal No.70/2008 5 Court, Kottayam at Ettumanoor on 28.8.2008. The Family Court shall dispose of the matter within four months from the date of appearance of the parties. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.70/2008 6 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. Mat.Appeal NO. 70/2008 JUDGMENT 4th August, 2008 Mat. Appeal No.70/2008 7