IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 114 of 2004()
1. VARGHESE MATHEW, S/O. LATE MATHEW,
... Petitioner
Vs
1. SANTHAMMA JOHN, D/O. JOHN (LATE),
... Respondent
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :SRI.SATHISH NINAN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :22/10/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal No.114 of 2004
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Dated this the 22nd day of October, 2009
JUDGMENT
BASANT, J.
The respondent before the court below is the appellant. He
is the husband of the respondent. He assails the ex parte order
passed by the court below allowing the claim petition filed by his
wife, the respondent in this appeal and directing him to pay an
amount of Rs.1 lakh along with interest @ 6% per annum from
24.02.1992. The parties are Christians by religion. Their
marriage took place on 02.03.1992. Betrothal had taken place
earlier on 24.02.1992. The appellant was employed abroad.
After a few days’ residence together, the appellant/husband went
back to his place of employment abroad. The respondent/wife
gave birth to a child on 01.11.1992. It appears that the
respondent had reservations about the legitimacy and paternity
of the child as the child at the time of birth on 01.11.92 was a
full grown child. The marriage took place on 02.03.1992.
Acrimony developed between the parties. The husband was not
thereafter interested in continuing the marital tie.
Mat.Appeal No.114 of 2004 2
2. The wife filed the present petition claiming return of
20 sovereigns of gold ornaments which were allegedly taken by
the husband at the time of marriage and an amount of Rs.1 lakh
which was allegedly paid to him. The husband entered
appearance and resisted the said claim. According to him, no
such amounts were received and no ornaments were retained by
him. According to him separate residence occurred on account
of the reasons indicated above.
3. The petition was initially filed before the civil court
and the same was transferred to the Family Court after its
establishment. The court below had directed the appellant to
appear personally. A couple of opportunities were given to the
husband to appear before the court. The husband, who was
employed abroad, did not appear. In these circumstances, on
14.07.03, the husband was set ex parte and the matter was
posted for evidence. At that stage, I.A.No.934 of 2003 was
immediately filed by his counsel. In that petition, the counsel
prayed on behalf of the appellant that the order dated 14.07.03
setting him ex parte may be set aside. He further prayed that
opportunity may be given to the counsel for the appellant to
cross examine the claimant/wife and her witnesses, who were
Mat.Appeal No.114 of 2004 3
proposed to be examined. He also prayed that permission may
be granted to the counsel to produce the documents on behalf of
the appellant in his absence.
4. When that petition came up for hearing on 21.08.09,
the appellant was not present. On the short ground that the
appellant was absent, the said I.A was dismissed. Thereafter the
claimant examined herself as PW1 and two witnesses as PWs 2
and 3. The husband did not/could not adduce any evidence. As
the petition filed by his counsel as I.A.934 of 2003 was
dismissed, the counsel for the appellant could not also
participate in the proceedings. It was, in these circumstances,
that the impugned order was passed on 01.11.2003.
5. Before us the learned counsel for the
appellant/husband and respondent/wife have advanced their
arguments. The marital tie has not been dissolved in accordance
with law and there is no dispute on that aspect. The learned
counsel for the appellant assails the impugned order on the
following sole ground.
6. The court below erred grossly in not granting the
appellant reasonable opportunity to defend the claim raised
against him.
Mat.Appeal No.114 of 2004 4
The Ground
7. Admittedly the appellant was employed abroad. The
matter was received on transfer by the Family Court on
25.02.03. As the husband was employed abroad, he could not
appear. On 14.07.03, he was set ex parte on the ground that he
was not personally present. The I.A filed by his counsel to set
aside the ex parte order and to permit him to contest the claim
on behalf of the appellant was also dismissed and the prayer was
rejected. Long later on 01.11.2003, the impugned order was
passed by the Family Court.
8. The learned counsel for the appellant submits that the
court must have taken note of the fact that the appellant, who
has only a petty employment at his place of employment abroad,
could not come to India as desired by him. In these
circumstances, his absence should not have led to an ex parte
order being passed against him when he was willing to
participate in the proceedings through his counsel and had made
a specific application for the said purpose as I.A.No.934 of 2003.
The learned counsel, in these circumstances, prays that the
appellant may be given an opportunity to contest the
proceedings and establish his case.
Mat.Appeal No.114 of 2004 5
9. The learned counsel for the respondent/claimant
contends that the matter has been dragging on for quite a long
period of time unnecessarily. The appellant had no serious
intention of contesting the proceedings and that is why he did
not at all appear before court from 28.05.03 to 01.11.03. If he
had any serious intention to participate in the proceedings and
contest the claim, he would have appeared before court at least
on one date during the long period of 28.05.03 to 01.11.2003. In
these circumstances, it is prayed that this appeal may be
dismissed and the impugned order upheld.
10. We have considered all the relevant circumstances.
The contumacious failure of the appellant to appear before court
from 28.05.03 to 01.11.03 notwithstanding, we find merit in the
prayer for setting aside the ex parte decree. We particularly
take note of the fact that despite expression of willingness of the
counsel to proceed with the matter in the absence of the
appellant, opportunity was denied to the counsel for the
appellant to participate in the proceedings. We do take note of
the submission of the learned counsel for the respondent that the
respondent is put to unnecessary hardship and difficulties for no
fault of hers. Having considered all the relevant circumstances,
Mat.Appeal No.114 of 2004 6
we take the view that this appeal can be allowed and the
impugned ex parte order can be set aside subject to appropriate
terms and conditions.
11. In the result:
a) This Matrimonial Appeal is allowed subject to
conditions;
b) The impugned order shall be set aside on the
following terms and conditions:
(i) The appellant shall deposit before the court below a
further amount of Rs.5,000/- (Rupees Five thousand only) as cost
on or before 01.12.2009;
(ii) If deposited, the said amount of Rs.5,000/- shall
forthwith be released to the respondent;
(iii) The amount of Rs.2,000/- (Rupees Two thousand only)
which remains in deposit in this Court shall also be released to
the respondent forthwith;
(iv) The parties shall appear before the Family Court on
02.12.09. If the amount is deposited, the impugned order shall
stand set aside and the Family Court shall proceed to dispose of
the claim afresh in accordance with law;
Mat.Appeal No.114 of 2004 7
(v) We make it clear that the option of the respondent to
claim the entire amounts demanded in O.P.No.158 of 2003 shall
remain unfettered;
(vi) She can also adduce further evidence as may be found
to be necessary by her;
(vii) The court below shall dispose of the case as
expeditiously as possible – at any rate, within a period of 3
months from 02.12.09;
(viii) If the amount of Rs.5,000/- is not deposited by the
appellant as directed, the Family Court shall record that fact on
02.12.09 and thereupon the impugned order shall continue to
remain in force;
(ix) The amount of Rs.2,000/- already deposited before
this Court and the amount of Rs.5,000/- to be deposited in court
as directed in clause (i) above shall be reckoned as cost and shall
not be adjusted towards the amount, if any, found ultimately due
in O.P.No.158 of 2003.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/-