Ayishabi.P vs Noushadali
2022 Latest Caselaw 4190 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
          THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
  THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
                 MAT.APPEAL NO. 335 OF 2021
 AGAINST THE ORDER/JUDGMENT IN OP 303/2015 OF FAMILY COURT,
                           MALAPPURAM
APPELLANT/S:

    1     AYISHABI.P., AGED 28 YEARS, D/O KHALID,PARAPPAN
          HOUSE,CHUNGATHARA PO,MALAPPURAM DISTRICT,
          PIN-679334
    2     MUHAMMED RABEEH(MINOR), AGED 8 YEARS,
          S/O NOUSHADALI AAKKODAN,PARAPPAN
          HOUSE,KARAPPURAM,CHUNGATHARA PO,MALAPPURAM,PIN
          679334, REPRESENTED BY THE 1ST APPELLANT
          BY ADVS.
          REHANA SHUKKUR
          K.G.MARY
          ARUN P. ANTONY

RESPONDENT/S:

    1     NOUSHADALI, S/O MUHAMMED, AAKKODAN HOUSE,
          KARAPPURAM, MOOTHEDOM PO, MALAPPURAM DISTRICT,
          PIN-679331.
    2     KUNHIKATHIYA, W/O MUHAMMED, AAKKODAN HOUSE,
          KARAPPURAM, MUTHEDOM PO, MALAPPURAM DISTRICT,
          PIN CODE 679331.
          (DELETED)

          THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY
          AT THE REQUEST OF THE APPELLANTS/PETITIONERS AS
          PER ORDER DATED 15/3/22 IN IA 1/2022.


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal No.335/2021               2


                                JUDGMENT

A.Muhamed Mustaque, J.

This appeal is at the instance of the petitioners in

O.P.No.303/2015 on the file of the Family Court,

Malappuram. The first appellant is the wife of the first

respondent. The second appellant is the minor child born

in the wedlock between the first appellant and the first

respondent. The appellant filed the above original

petition for return of money and gold ornaments and also

for past maintenance for the appellants.

2. The application was dismissed for default as

there was no representation on the side of the appellants

on 06.03.2018. Thereafter, an application was filed along

with an application to condone the delay to restore the

application. The delay was of 560 days. According to the

appellants, they could not contact their counsel to give

instructions to proceed with the case and they were not

aware of the factum of dismissal of the case. It is to be

noted that the second appellant is the minor. The Family

Court could not have dismissed the claim without proper

safeguards to protect the interest of the minor. If the

guardian failed to contest the case, the court had to

proceed with the case, by appointing a guardian for the

minor. Anyhow, taking note of the fact that the first

appellant is a Muslim lady, who has no other means and

whose plight has been pathetically quoted before the

Family Court, we are of the view that the application has

to be allowed. Accordingly, we set aside the impugned

order. The parties are directed to appear before the

Family Court on 09.05.2022. On that day, fresh notice has

to be issued to the respondents by the Family Court, as

they have not appeared before this Court.

The Mat. Appeal is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

SOPHY THOMAS, JUDGE ln