Anitta Alex vs Mathews P Cherry
2024 Latest Caselaw 14347 Ker

Kerala High Court

Anitta Alex vs Mathews P Cherry on 31 May, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
     THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                             &
           THE HONOURABLE MR. JUSTICE P.M.MANOJ
  FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
                  OP (FC) NO. 355 OF 2024
 AGAINST THE ORDER/JUDGMENT DATED IN OP NO.730 OF 2023 OF
                    FAMILY COURT, ALUVA

PETITIONER/RESPONDENT:

          ANITTA ALEX, AGED 31 YEARS
          THAYIL HOUSE, MANJOOR P.O., KURUPPANTHARA, KADUTHURUTHY
          VILLAGE, VAIKOM TALUK, KOTTAYAM, PIN - 686603

          BY ADVS.
          PAUL JACOB (P)
          SHERU JOSEPH
          MATHEW THOMAS
          NIKITTA TRESSY GEORGE
          DIPAK CHERIAN ABRAHAM


RESPONDENT/PETITIONER:

          MATHEWS P CHERRY, AGED 35 YEARS
          PUTHUSSERY HOUSE, KARAYAMPARAMBU, KARUKUTTY P.O.,
          KARUKUTTY VILLAGE, ALUVA TALUK, ERNAKULAM, PIN - 683576

     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                     2
OP(FC)No.355 of 2024




                              JUDGMENT

Raja Vijayaraghavan, J.

The petitioner herein is the respondent in O.P. No.730/2023 on the

files of the Family Court, Aluva. The aforesaid petition is filed by the

respondent seeking dissolution of his marriage with the petitioner. The

respondent has also preferred O.P. No.604/2021 before the Family Court,

Ettumanur seeking custody of the child. This petition is filed seeking a

declaration that O.P.No. 630/2023 and O.P.No.604/2021 cannot be

proceeded with until the directions of this Court in Ext.P5 judgment is

complied with.

2. It appears that O.P.No. 604/2021 was earlier disposed of by

order dated 14.6.2022 after setting the petitioner ex parte. The said

order was challenged before this Court. By judgment dated 7.8.2023 in

Mat. Appeal No. 133/2023, this Court set aside the judgment passed by

the Family Court holding that an opportunity should be granted to the

petitioner to contest the proceeding. However, while remanding the

matter, a passing observation was made that the Original Petition shall be

tagged along with all pending matters between the parties. It is on the

basis of the above observations that this petition is filed seeking

directions.

3. The specific contention of the petitioner is that this Court by

the aforesaid judgment had ordered that all matters pending between

the parties should be clubbed together.

4. The respondent has entered appearance and has

vehemently opposed the contentions raised by the petitioner. The

learned counsel pointed out that it was not brought to the notice that

the petitions were pending before various courts. The respondent had

instituted both the cases and it was only because of the fact that the

child was ordinarily residing within the jurisdiction of the Family court,

Ettumanoor that he had proceeded to institute the petition before the

said court. The petition for dissolution of marriage was in fact filed

before the Family court, Aluva. The learned counsel pointed out that it

was only when O.P.No.730/2023 was listed for evidence on 3.6.2024 that

this Original Petition was filed raising frivolous contentions. The learned

counsel would also point out that the petitioner has in fact filed R.P.No.

896/2023 contending that unless the cases are transferred in accordance

with law, the directions in the judgment cannot be complied with. The

said review petition has not been considered by this Court. According to

the learned counsel, after having raised such a contention in the Review

Petition, the petitioner cannot be heard to contend before this Court that

all the matters between the parties are to be tagged together. He would

also submit that C.C.No.807/2021 charged for offence under Section

498A and M.C.No.49/2023 registered under the Protection of Women

from Domestic Violence Act are pending before the Judicial Magistrate of

the First Class, Angamaly. Those matters cannot in any way be

transferred.

4. We have considered the submissions advanced. We are of

the view that this Court had only made a passing observation that all

cases between the parties are to be tried together. The fact that the

cases were pending before different Family courts due to jurisdictional

issues was not brought to the notice of this Court. The petitioner could

very well have filed an application for transfer of one matter to the other.

Furthermore, a perusal of the Review Petition filed by the petitioner

clearly discloses that she was also aware that unless the cases are

transferred in accordance with law, the directions in the judgment could

not be complied with.

5. Having considered all the relevant facts, we are of the view

that the petitioner has not made out any case for interference. This

petition is dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

Sd/-

P.M.MANOJ JUDGE

ncd

APPENDIX OF OP (FC) 355/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF O.P 604 OF 2021 FILED BY THE RESPONDENT BEFORE THE HON'BLE FAMILY COURT, ETTUMANOOR.

Exhibit P2 TRUE COPY OF O.P 730 OF 2023 FILED BY THE RESPONDENT BEFORE THE HON'BLE FAMILY COURT, ALUVA.

Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P 604 OF 2021 PENDING BEFORE THE HON'BLE FAMILY COURT, ETTUMANOOR.

Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P 730 OF 2023 PENDING BEFORE THE HON'BLE FAMILY COURT, ALUVA.

Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN MAT. APPEAL 133 OF 2023 DATED 07.08.2023.

Additional Exhibit P6 TRUE COPY OF THE RP NO. 896 OF 2023 NOW PENDING BEFORE THIS HON'BLE COURT

Additional Exhibit P7 TRUE COPY OF THE I.A NO. 1 OF 2023 IN RP NO.

896 OF 2023 NOW PENDING BEFORE THIS HON'BLE COURT