Divakara vs Bindu K. T.
2021 Latest Caselaw 9469 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                              &

     THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

 MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                    OP (FC).No.46 OF 2020

AGAINST THE ORDER/JUDGMENT IN OP 76/2019 DATED 12-12-2019
               OF FAMILY COURT, KASARAGOD


PETITIONER:

              DIVAKARA, AGED 51 YEARS, S/O. KRISHNA,
              RESIDING AT BOOPA'S COMPOUND, KARANDAKAD,
              KASARGOD VILLAGE AND P. O., KASARGOD DISTRICT.

              BY ADVS.
              SHRI.SURESH KUMAR KODOTH
              SRI.K.P.ANTONY BINU

RESPONDENT:

              BINDU K. T., AGED 41 YEARS, D/O. ASHOK KUMAR K
              T, RESIDING AT SATHREEYA, EROLE, CHANDRAPURAM,
              P. O. MYLATTY, KASARGOD DISTRICT - 671 319.

              R1 BY ADV. SMT.HEMALATHA
              R1 BY ADV. SRI.BINU GEORGE

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
22-03-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC).No.46 OF 2020

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                          JUDGMENT

Dated this the 22nd day of March 2021 A.Muhamed Mustaque, J

This original petition was filed challenging

the order of the Family Court, Kasargod on an

application raising maintainability of O.P.

No.76 of 2019.

2. The above original petition was filed by

the respondent herein, the wife of the

petitioner. This original petition was filed by

the wife for divorce.

3. The petitioner herein, who is the

respondent in the above case, raised an

objection in regard to the maintainability. The

objection regarding the maintainability was on

the ground that the respondent had earlier filed

an O.P. No.231 of 2017 and the same was OP (FC).No.46 OF 2020

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dismissed for non prosecution and therefore,

subsequent petition on the same ground is barred

by the principles of res judicata.

4. The Family Court, by a detailed order,

overruled the objection. The Family Court found

that dismissal of earlier original petition is

not a bar in instituting a fresh original

petition. It is further observed that there was

variation of allegation regarding cruelty as

alleged in the earlier original petition. The

Family Court, though observed that no new ground

of cruelty was raised in the present petition, the dismissal of earlier original petition is

not res judicata.

We may not be justified in invoking the

power under Article 227 of the Constitution of

India to interfere with such an order. The

petitioner can be reserved with the liberty to

challenge the above order, if the petitioner is OP (FC).No.46 OF 2020

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finally aggrieved by the outcome of the

proceedings. We do not find any jurisdictional

error in answering the issue. Therefore,

reserving the liberty to challenge the above

order, if the petitioner is finally aggrieved,

this original petition is disposed of.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

DR. KAUSER EDAPPAGATH

JUDGE

PR OP (FC).No.46 OF 2020

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APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF PETITION IN OP NO.76/2019 ON THE FILE OF THE FAMILY COURT, KASARGOD.

EXHIBIT P2 TRUE COPY OF COUNTER IN OP NO.76/2019

EXHIBIT P3 TRUE COPY OF IA NO.450/2019.

EXHIBIT P4 TRUE COPY OF COUNTER IN IA NO.450/2019.

EXHIBIT P5 TRUE COPY OF ORDER DATED 12.12.2019 IN IA NO.450/2019 IN OP NO.76/2019.

EXHIBIT P6 TRUE COPY OF PETITION IN OP NO.231/2017.

EXHIBIT P7 TRUE COPY OF ORDER DATED 18.7.2018 IN OP NO.231/2017.