Kerala High Court
Littishya vs Smijay on 2 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
MAT.APPEAL NO. 240 OF 2018
AGAINST THE ORDER/JUDGMENT IN OP 426/2017 OF FAMILY COURT,THRISSUR
APPELLANT:
LITTISHYA, D/O K.T SAHADEVAN, KALATHUPURATHU
HOUSE,THIRUVENKIDOM PO, GURUVAYOOR, CHAVAKKAD,THRISSUR.
680 101.
BY ADVS.
N.M.MADHU
C.S.RAJANI
RESPONDENT:
SMIJAY, S/O GOKULDASAN, CHERUPARAMBIL HOUSE,
IRINGAPURAM DESOMAND VILLAGE, P.O PUTHENPALLI,
CHAVAKKAD TALUK,THRISSUR DISTRICT-680 103,
REP. BY POWER OF ATTORNEY HOLDERGOKULDASAN,S/O
KARAPPAKUTTY, CHERUPARAMBIL, PUTHENPALLI PO, CHAVAKKAD
TALUK, THRISSUR DISTRICT.680 103
BY ADV SMT.R.PADMAKUMARI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MAT.APPEAL NO. 240 OF 2018
2
J U D G M E N T
A. Muhamed Mustaque, J
This Mat. Appeal has been preferred by the respondent
in O.P No.426 of 2017 aggrieved by the dismissal of her
application to set aside the ex-parte decree after
condoning the delay about of 58 days involved in filing
such application.
2. The respondent herein was the petitioner before
the Family Court. He filed a petition for divorce on the
ground of cruelty and unsoundness mind of the appellant.
An ex-parte decree was passed on 31.08.2017. The appellant
filed an application to set aside the ex-parte decree along
with an application to condone the delay of 58 days.
The Family Court noting that the appellant failed to make
out a case for condonation of the delay of 58 days and
to set aside the ex-parte decree, dismissed both the
applications.
3. A notice was taken out to the appellant in the
address shown in the cause title. Admittedly, the address
is correct. No one has disputed the address. Along with
the appeal an interlocutory application was filed to
MAT.APPEAL NO. 240 OF 2018
receive additional documents. Annexure A1 and A2 are the B
Diary proceedings before the Family Court in O.P Nos.426 of
2017 and 776 of 2017. O.P No.776 of 2017 was filed by the
respondent herein against the appellant for the custody of
the child. Admittedly, the above original petition was
pending when ex-parte decree was passed. In view of the
fact that these are the proceedings relating to the Court,
we are of the view that additional documents produced can
be received on record as the same will not prejudice the
right of the respondent. Accordingly, we allow the
applications and additional documents are marked as
Annexure A1 and A2. We need to refer to the additional
documents for referring the chronological events in both
proceedings.
4. The ex-parte decree was passed on 31.08.2017.
Admittedly, the proceedings filed by the respondent for
custody of the child was pending as O.P No.776 of 2017
before the same Court. The proceedings in Annexure A2
would show that appellant entered appearance in a petition
filed by the respondent for custody much before she was set
ex-parte in the present proceedings in divorce. It is seen
from Annexure A2, for custody matter the case was posted on
MAT.APPEAL NO. 240 OF 2018
19.05.2017 for the appearance of the appellant. The
appellant entered appearance on 19.05.2017 and thereafter
the case was posted for counter affidavit and hearing on
23.05.2017. Again the case was posted on 29.05.2017 and
21.08.2017. The respondent could very well have brought to
the notice of the Family Court in regard to the pendency of
the O.P No.776 of 2017 and appearance of the appellant
before the same Family Court. No attempt was made out by
the respondent to bring to the notice of the Family Court
regarding pendency of the connected matter between the
parties. It is in this background, this Court has to
consider the reasons set out for condonation of delay and
to setting aside the ex-parte decree.
5. In the proceedings for divorce, notice was issued
to the appellant for appearance on 30.05.2017. On that
day, taking note of the fact that no notice was served as
the appellant unclaimed the notice, Court ordered notice by
affixture and paper publication. Notice was taken out by
affixture. Simultaneously, paper publication was also made
out. The Court on 10.07.2017, noting that paper
publication has been produced and notice was affixed and
also noting that the appellant was absent, the appellant
MAT.APPEAL NO. 240 OF 2018
was set ex-parte. Accordingly, the case was scheduled on
13.07.2017. On that day a proof affidavit was filed by the
respondent and documents were marked. After hearing the
learned counsel for the respondent on 20.07.2017, it was
posted on 16.08.2017. Again it was posted on 20.09.2017.
On that day the respondent filed a petition for amendment.
That amendment petition was allowed and the amendment was
also carried out on the same day. It is to be noted that no
notice was issued to the appellant on the amendment
application. On 30.08.2017, a proof affidavit was again
filed in tune with the amendment petition as well. On
31.08.2017, ex-parte decree was passed granting divorce.
We find two irregularities in the proceedings.
6. When there was no notice affixed, the Family
Court noted that the notice was affixed. On going through
the report of the Amin deputed, it shows that no notice was
affixed as no one was willing to witness the notice by
affixture. We also notice that the Family Court failed to
issue notice to the appellant in the amendment petition
filed to amend the petition for divorce.
7. There was no attempt to serve notice in
accordance with the procedure, that itself become a
MAT.APPEAL NO. 240 OF 2018
sufficient cause. The paper publication as contemplated
under Order V Rule 20 of the Code of Civil Procedure, 1908,
is to be resorted when all attempts to serve notice on the
defendant have been exhaused. There was no affixture of
notice. In such circumstances, the paper publication
without affixing notice is bad and illegal. This Court, in
fact, in Basheer M. Picha and Another v. Indian Bank,
Shanmugham Road Branch, Ernakulam [2013 (2) KHC 425] laid
down the procedure for effecting substitute service and we
find that no procedure as contemplated in above judgment
has been followed by the Family Court in this matter.
8. The appellant made out reasonable cause to set
aside the ex-parte decree. However, the appellant has to
prove that the delay was occasioned by sufficient cause.
The delay is only 58 days. The appellant's case is that
she came to know about the ex-parte decree only on
5.10.2017 through a family friend. Absolutely, there is no
contrary evidence to show that the appellant has the
knowledge of the ex-parte decree prior to the above date.
It is already noted that the respondent could have very
well brought to the notice of the appellant in regard to
the pendency of the divorce case when the connected matter
MAT.APPEAL NO. 240 OF 2018
regarding the custody was pending before the same Court.
We are of the view that the respondent willfully withheld
such information from the appellant regarding the pendency
of the divorce case. Considering all the matters as above,
we are of the view that the appellant made out a case for
condonation of delay. The Family Court was not justified
in dismissing the application.
9. The learned counsel for the respondent would
submit that based on the ex-parte decree the respondent
remarried and the present attempt of the appellant is only
to bargain for monetary claims.
Anyhow, the appellant had made out a case for
condonation of delay and also to set aside the ex-parte
decree, we allow this appeal. The impugned order is set
aside. Both parties are directed to appear before the
Family Court on 7.03.2022. The registry shall return the
records received, to the Family Court forthwith.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
SOPHY THOMAS, JUDGE
PR
