Kerala High Court
Vivek Joy vs Vivek Joy on 8 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
Mat.Appeal.No.753 OF 2018
AGAINST THE COMMON ORDER IN I.A. NO.2039 OF 2017 AND
I.A.NOS.4325 OF 2017 IN OP NO.1582/2014 DATED 05-03-2018 OF
THE FAMILY COURT, ERNAKULAM
APPELLANT/RESPONDENT IN I.A.:
VIVEK JOY, AGED 32 YEARS, S/O.JOY JOSEPH,
KOIKAKUDY HOUSE, HOUSE NO.35/1210 A,
INDIRA ROAD, PALARIVATTOM P.O.,
ERNAKULAM DISTRICT, PIN - 682 025.
BY ADVS.
DR.SEBASTIAN CHAMPAPPILLY
DR.ABRAHAM P.MEACHINKARA
SRI.GEORGE CLEETUS
SRI.P.A.SAINUDEEN
RESPONDENT/PETITIONER IN I.A.:
CHINJU GRACE LUKOSE, AGED 32 YEARS,
D/O.P.L.LUKOSE,PALLITHARA HOUSE,
VAYATTUPARAMBA P.O.,VELLAD VILALGE,
TALIPARAMBA TALUK, KANNUR DISTRICT - 670 582
BY ADV. SRI. ABDUL RAOOF PALLIPATH (CAVEATOR)
BY ADV. SRI.K.R.AVINASH KUNNATH CAVEATOR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal.No.753 OF 2018 2
JUDGMENT
Dated this the 8th day of January, 2021
K. Vinod Chandran, J.
In the above case the parties have filed a
joint application for divorce on mutual consent.
However, we see a technical difficulty in allowing
the divorce insofar as the appeal is from an order
setting aside the exparte decree. The brief facts
are that the husband filed an application for
divorce and after considerable time the wife was
set exparte and the Family Court passed an exparte
decree. Later to that, the wife approached the
Family Court seeking setting aside of the exparte
decree with considerable delay. The same was
allowed and the said order is impugned in this
appeal. An application for divorce on mutual
consent is not maintainable in the present appeal.
However, since the parties have agreed for divorce
on mutual consent, we are of the opinion that the
appeal need not be kept alive. The order impugned
in the appeal, which set aside the exparte decree
passed in an application for divorce filed by the
husband is affirmed only for the purpose of filing
a joint application before the Family Court;
especially since after the expiry of time for
filing an appeal from the exparte decree, the
appellant entered into another marriage. We
understand that the grounds raised were otherwise
in the application for divorce. However, now the
parties have come to an understanding that divorce
can be obtained on mutual consent.
2. In such circumstances, in the very same
original petition filed before the Family Court,
the parties could file an application for divorce
on mutual consent and in that circumstance, if
such an application is filed, we feel it
appropriate that the Family Court waives the
statutory period, especially since the parties
have been waiting from the year 2014 and there is
no possibility of rapprochement. We are of the
opinion that in the peculiar circumstance of the
case, there would be no reason for carrying out
any counselling also, since the parties are
estranged for more than six years.
3. The Mat.Appeal is hence closed,
directing the parties to file an application in
O.P.No.1582 of 2014 pending on the file of the
Family Court, Ernakualam and if the respondent
fails to co-operate the appellant could seek
revival of this appeal.
K. VINOD CHANDRAN, Judge.
M.R. ANITHA, Judge.
sp/08/01/2021
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF OP NO.1582/2014 FILED BY
THE PETITIONER BEFORE THE FAMILY COURT
AT ERNAKULAM DATED 18/08/2014.
ANNEXURE 2 TRUE COPY OF THE OP NO.1944/2013 DATED
21/10/2013 FILED BY THE RESPONDENT
BEFORE THE FAMILY COURT AT ERNAKULAM.
ANNEXURE 3 TRUE COPY OF THE OBJECTION AND COUNTER
CLAIM DATED 25/09/2014 FILED BY THE
APPELLANT AND HIS PARENTS IN OP
NO.1944/2013.
ANNEXURE 4 TRUE COPY OF B DAIRY PROCEEDINGS IN OP
NO.1582/2014.
ANNEXURE 5 TRUE COPY OF B DAIRY PROCEEDINGS IN OP
NO.1944/2013.
ANNEXURE 6 TRUE COPY OF JUDGMENT IN OP (FC)
NO.427/2016 DATED 09/09/2016.
ANNEXURE 7 TRUE COPY OF ORDER IN IA NO.1700/2016
IN OP (FC) NO.427/2016 DATED 02/03/2017.
ANNEXURE 8 TRUE COPY OF THE EXPARTE JUDGMENT DATED
12/05/2017 IN OP NO.1582/2014.
ANNEXURE 9 TRUE COPY OF ORDER IN IA NO.5019/2016
IN OP NO.1944/2013 DATED 20/03/2017.
ANNEXURE 10 TRUE COPY OF ORDER IN OP (FC)
NO.172/2017 DATED 01/06/2017 OF THE
HON'BLE HIGH COURT OF KERALA.
ANNEXURE 11 TRUE COPY OF THE COMPUTER DATA OF THE
FAMILY COURT AT ERNAKULAM IN RESPECT OF
ANNEXURE-2.
ANNEXURE 12 TRUE COPY OF IA NO.4095/2017 IN IA
NO.2039/2017 IN OP NO.1582/2014 DATED
14/12/2017 FILED BY THE RESPONDENT.
ANNEXURE 13 TRUE COPY OF IA NO.4049/2017 IN IA
NO.2039/2017 IN OP NO.1582/2014 DATED
14/12/2017.
ANNEXURE 14 TRUE COPY OF IA NO.4325/2017 IN OP
NO.1582/2014 DATED 27/12/2017.
ANNEXURE 15 TRUE COPY OF THE MARRIAGE CERTIFICATE
DATED 30/12/2017.
ANNEXURE 16 TRUE COPY OF THE COUNTER AFFIDAVIT
WITHOUT EXHIBITS FILED BY THE
PETITIONER IN OP (FC) NO.54/2018.
ANNEXURE 17 TRUE COPY OF JUDGMENT IN OP (FC)
NO.54/2018 DATED 01/02/2018.
ANNEXURE 18 TRUE COPY OF CERTIFIED COPY OF IA NO.
2039/2017 IN OP NO.1582/2014 DATED
27/12/2017 RECEIVED BY THE PETITIONER.
ANNEXURE 19 TRUE COPY OF COMMON COUNTER AFFIDAVIT
FILED IN IA NO.4325/2017 AND IA
NO.2039/2017 DATED 20/02/2018
