Aswathy Maya Devi Vs. Aji Thomas - Court Judgment

SooperKanoon Citationsooperkanoon.com/1136329
CourtKerala High Court
Decided OnMar-26-2014
JudgeHONOURABLE MR.JUSTICE ANTONY DOMINIC
AppellantAswathy Maya Devi
RespondentAji Thomas
Excerpt:
in the high court of keralaat ernakulam present: the honourable mr.justice antony dominic & the honourable mr. justice anil k.narendran wednesday, the26h dayof march20145th chaithra, 1936 op (fc).no. 84 of 2014 (r) --------------------------- op.div.no. 216/2013 of family court, kottayam o.p. div.no.616/13 of family court, pala. petitioner: ------------------- aswathy maya devi, aged30years, d/o.mathai, thonakara hoiuse, pampavally north.p.o erumeli, kanjirappally, kottayam. by advs.sri.t.m.abdul latheef sri.k.ashok saran respondents: ----------------------- aji thomas,, aged34years s/o.c.t.thomas, cheruvallil house, velanilam.p.o mundakayam, kanjirappally,kottayam-686507. this op (family court) having come up for admission on2603-2014, the court on the same day delivered the following: op (fc).no. 84 of 2014 (r) --------------------------- appendix petitioner(s)' exhibits ------------------------------------- ext.p1 copy of the joint petition,o.p.216 of2013filed before the family court, kottayam atettumannoor. ext.p2: original of the affidavit sworn by the respondent dt.16.3.14 through indian embassy. respondent(s)' exhibits: nil true copy p.a.to judge dsn antony dominic & anil k.narendran, jj.-------------------------------------------------- o.p.(f.c.)no.84 of 2014 -------------------------------------------------- dated this the26h day of march, 2014 judgment antony dominic,j.the petitioner and the respondent are husband and wife. their marriage was solemnised on 9.8.2010. however, due to reasons which are irrelevant, they filed o.p.no.216/2013 before the family court, kottayam at ettumanoor under section 10a of the divorce act, seeking divorce on mutual consent. the original petition was posted to 16.8.2013 for the appearance of the parties. in the meanwhile family court, pala was established with effect from 26.2.2013. on 5.11.2013, both parties appeared before that court and were referred for counselling. on 12.12.2013, report of the counsellor was received stating that re-union was not possible. therefore, the case was posted to 21.11.2013 for enquiry as contemplated under section 10a(2) of the act. since then, the case is getting adjourned on account of the absence of the respondent who is employed at muscat. it is in these circumstances, the petitioner has filed this original petition before this court seeking o.p.(fc)no.84/14 -2- an order directing the family court to dispose of o.p.no.616/2013.2. it is true that under section 10a(2) of the divorce act, an enquiry has to be conducted by the family court, which is considering the application filed under section 10a. although, in a normal case, the parties are expected to be present before the family court on such occasions, there are exceptions to that rule and in circumstances where the presence is impossible, it is well within the powers of the family court to dispense with the personal presence of the parties. in this context, reference may be made to the judgments of this court in saji t.varghese v. state of kerala (2010(3)klt804 and biju v. 'nil' (2013(3) klt987. insofar as this case is concerned, respondent admittedly is employed abroad. he has also filed an affidavit before this court duly attested by the assistant consular officer, embassy of india, muscat. in the affidavit, he has confirmed his inability to come to india on account of compulsions of his employment. in such circumstances, we feel that the family court should not insist on the presence of the respondent, o.p.(fc)no.84/14 -3- provided, an appropriate affidavit is filed before the family court and the family court is satisfied that the affidavit is a genuine one. therefore, we dispose of this original petition directing that if the respondent files an affidavit, as the one filed before this court and produced along with i.a.no.4766/2014, and if the family court is satisfied that the affidavit is genuine and is a duly authenticated one, the family court shall proceed with the trial of o.p.no.616/2013, without insisting on the personal presence of the respondent. orders in this regard shall be passed as expeditiously as possible and at any rate within four weeks of production of a copy of this judgment. sd/- antony dominic, judge sd/- anil k.narendran, judge dsn
Judgment:

IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE26H DAYOF MARCH20145TH CHAITHRA, 1936 OP (FC).No. 84 of 2014 (R) --------------------------- OP.DIV.NO. 216/2013 of FAMILY COURT, KOTTAYAM O.P. DIV.NO.616/13 OF FAMILY COURT, PALA. PETITIONER: ------------------- ASWATHY MAYA DEVI, AGED30YEARS, D/O.MATHAI, THONAKARA HOIUSE, PAMPAVALLY NORTH.P.O ERUMELI, KANJIRAPPALLY, KOTTAYAM. BY ADVS.SRI.T.M.ABDUL LATHEEF SRI.K.ASHOK SARAN RESPONDENTS: ----------------------- AJI THOMAS,, AGED34YEARS S/O.C.T.THOMAS, CHERUVALLIL HOUSE, VELANILAM.P.O MUNDAKAYAM, KANJIRAPPALLY,KOTTAYAM-686507. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON2603-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 84 of 2014 (R) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 COPY OF THE JOINT PETITION,O.P.216 OF2013FILED BEFORE THE FAMILY COURT, KOTTAYAM ATETTUMANNOOR. EXT.P2: ORIGINAL OF THE AFFIDAVIT SWORN BY THE RESPONDENT DT.16.3.14 THROUGH INDIAN EMBASSY. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.A.TO JUDGE dsn ANTONY DOMINIC & ANIL K.NARENDRAN, JJ.

-------------------------------------------------- O.P.(F.C.)No.84 of 2014 -------------------------------------------------- DATED THIS THE26h DAY OF MARCH, 2014 JUDGMENT

ANTONY DOMINIC,J.

The petitioner and the respondent are husband and wife. Their marriage was solemnised on 9.8.2010. However, due to reasons which are irrelevant, they filed O.P.No.216/2013 before the Family Court, Kottayam at Ettumanoor under Section 10A of the Divorce Act, seeking divorce on mutual consent. The Original Petition was posted to 16.8.2013 for the appearance of the parties. In the meanwhile Family Court, Pala was established with effect from 26.2.2013. On 5.11.2013, both parties appeared before that court and were referred for counselling. On 12.12.2013, report of the Counsellor was received stating that re-union was not possible. Therefore, the case was posted to 21.11.2013 for enquiry as contemplated under Section 10A(2) of the Act. Since then, the case is getting adjourned on account of the absence of the respondent who is employed at Muscat. It is in these circumstances, the petitioner has filed this Original Petition before this Court seeking O.P.(FC)No.84/14 -2- an order directing the Family Court to dispose of O.P.No.616/2013.

2. It is true that under Section 10A(2) of the Divorce Act, an enquiry has to be conducted by the Family Court, which is considering the application filed under Section 10A. Although, in a normal case, the parties are expected to be present before the Family Court on such occasions, there are exceptions to that rule and in circumstances where the presence is impossible, it is well within the powers of the Family Court to dispense with the personal presence of the parties. In this context, reference may be made to the judgments of this Court in Saji T.VArghese v. State of Kerala (2010(3)KLT804 and Biju v. 'Nil' (2013(3) KLT987. Insofar as this case is concerned, respondent admittedly is employed abroad. He has also filed an affidavit before this Court duly attested by the Assistant Consular Officer, Embassy of India, Muscat. In the affidavit, he has confirmed his inability to come to India on account of compulsions of his employment. In such circumstances, we feel that the Family Court should not insist on the presence of the respondent, O.P.(FC)No.84/14 -3- provided, an appropriate affidavit is filed before the Family Court and the Family Court is satisfied that the affidavit is a genuine one. Therefore, we dispose of this Original Petition directing that if the respondent files an affidavit, as the one filed before this Court and produced along with I.A.No.4766/2014, and if the Family Court is satisfied that the affidavit is genuine and is a duly authenticated one, the Family Court shall proceed with the trial of O.P.No.616/2013, without insisting on the personal presence of the respondent. Orders in this regard shall be passed as expeditiously as possible and at any rate within four weeks of production of a copy of this judgment. Sd/- ANTONY DOMINIC, JUDGE Sd/- ANIL K.NARENDRAN, JUDGE dsn