Rajitha K.V vs S Viswanathan
2025 Latest Caselaw 2908 Ker

Kerala High Court

Rajitha K.V vs S Viswanathan on 27 January, 2025

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                                               2025:KER:8235
[Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

                                  1
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                                      &

             THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

      MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946

                     MAT.APPEAL NO. 1138 OF 2024

     AGAINST THE JUDGMENT DATED 11.04.2024 IN OP NO.75 OF 2024 OF

FAMILY COURT,KOZHIKODE

APPELLANT/RESPONDENT:

            RAJITHA K.V
            AGED 42 YEARS
            D/O. RAMAKRSIHNAN, SREEVALSAM HOUSE, VANIYAMKULAM- II,
            MANISSERY, PALAKKAD,, PIN - 679521


            BY ADV NAVAS JAN A.

RESPONDENT/PETITIONER:
           S VISWANATHAN
           AGED 42 YEARS
           S/O. K.V SURENDRAN, 408, FLAT NO. A2, VIKAS GARDEN
           APARTMENT, GURUPURAM, SOUTH ARYAD, ALAPPUZHA 688006.
           NOW RESIDING AT 117,122 INF: BN TA MADRASS, WEST HILL,
           BARACKS, KOZHIKODE, PIN - 673005


            BY ADV PRAVEEN.K.JOY




     THIS   MATRIMONIAL   APPEAL    HAVING   COME   UP   FOR   ADMISSION   ON
27.01.2025, ALONG WITH OP (FC).27/2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                                                   2025:KER:8235
[Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

                                         2

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                                         &

             THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

      MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946

                            OP (FC) NO. 27 OF 2025

     AGAINST THE ORDER DATED 22.11.2024 IN I.A.NO.2/2024 IN OP

NO.75 OF 2024 OF FAMILY COURT,KOZHIKODE

PETITIONER/PETITIONER/RESPONDENT:

            RAJITHA K.V
            AGED 42 YEARS
            D/O. RAMAKRSIHNAN, SREEVALSAM HOUSE, VANIYAMKULAM- II,
            MANISSERY, PALAKKAD, PIN - 679521


            BY ADV NAVAS JAN A.


RESPONDENT/RESPONDENT/PETITIONER:

            S VISWANATHAN
            AGED 42 YEARS
            S/O. K.V SURENDRAN, 408, FLAT NO. A2, VIKAS GARDEN
            APARTMENT, GURUPURAM, SOUTH ARYAD, ALAPPUZHA 688006.
            NOW RESIDING AT 117,122 INF: BN TA MADRASS, WEST HILL,
            BARACKS, KOZHIKODE, PIN - 673005


            BY ADV PRAVEEN.K.JOY


     THIS   OP    (FAMILY    COURT)    HAVING   COME   UP   FOR   ADMISSION   ON
27.01.2025, ALONG WITH Mat.Appeal.1138/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
                                                                2025:KER:8235
[Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

                                        3
                                 JUDGMENT

DEVAN RAMACHANDRAN (J)

We are disposing of the above Appeal and

Original Petition jointly through this judgment

because, the underlying factual circumstances

are similar, if not identical; while the

prayers are interconnected.

2. As per the conceded facts, the

respondent herein filed O.P.No.75/2024 before

the learned Family Court, Kozhikode, against

the appellant/petitioner, seeking a decree of

divorce, which was allowed exparte against her

on 11.04.2024. On the assertion that she did

not receive notice/summons from the learned

Family Court, she filed I.A.No.2 of 2024,

invoking the provisions of Order 9 Rule 13 of

the Code of Civil Procedure (CPC), pleading

that the exparte decree against her be set

aside; but this has been dismissed through the 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

order of the learned Family Court dated

22.11.2024.

3. The appellant/petitioner initially filed

Mat Appeal No.1138/2024 against the exparte

decree of the learned Family Court; but

perhaps, sensing that this by itself may not be

sufficient, she has filed O.P.(FC)No.27/2025

praying that the order of the learned Family

Court in I.A.No.2/2024 be also set aside.

4.`It is, therefore, that we said in the

prefatory paragraph of this judgment, that both

matters require to be heard together; and we

record that the learned counsel for both sides

have fully consented to this.

5.`Sri.Praveen K.Joy - learned counsel

for the respondent, argued that even a reading

of the order of the learned Family Court in

I.A.No.2/2024 would establish without an iota

of doubt that the summons from the Court was 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

received by the appellant/petitioner, but that

she tore it off in a fit of arrogance, saying

that she will not grant divorce to his client.

He submitted that these have been established

through the evidence of RW1, RW2 and RW3; and

hence that the appellant/petitioner does not

obtain any cause to have filed these matters.

He thus prayed that both the above Appeal and

the Original Petition be dismissed.

6.`However, Sri.A.Navas Jan - learned

counsel for the appellant/petitioner, refuted

the afore submissions of the respondent,

asserting that the allegation that his client

tore away the summons has been spoken only by

RW1, namely the respondent herein; while, RW2

and RW3 are two staff members of the military,

who are attached to RW1. He submitted that it

would require no expatiation that all the

testimonies on record are thus interested ones;

2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

and hence that the learned Family Court ought

not to have relied upon the same. He concluded

contending that, in any event, the factum of

his client having approached the learned Family

Court within a period of 67 days, to have the

exparte decree set aside, ought to have been

appreciated by the said Court; and therefore,

that the order in I.A.No.2/2024 in

O.P.No.75/2024 - assailed in O.P.(FC)No.27/2025

- is illegal; and consequently, that the

exparte decree against his client is also

without forensic support.

7.`We have examined the rival

submissions of the parties, on the touchstone

of the various materials on record.

8.`We notice that a counter affidavit

has been filed by the respondent in

O.P(FC).No.27/2025, reaffirming what has been

stated by the the learned Family Court; but 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

then asserting that the marriage between the

parties has irretrievably broken down and hence

that there will be no purpose in the Original

Petition being considered on its merits by the

said Court.

9. We are afraid that the above stand

of the respondent cannot be countenanced by us

at this stage because, what is impelled before

us is the correctness of the exparte decree and

judgment suffered by the appellant/petitioner;

as also that of the order issued by the learned

Family Court in I.A.No.2/2024. Even assuming

that we accept the submissions of Sri.Praveen

K.Joy, that the marriage between the parties

may have broken down, it would not grant us the

option to approve or disapprove the divorce

because, this is a matter that will have to be

considered as per law. Though Sri.Praveen K.Joy

relies upon a judgment of the Hon'ble Supreme 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

Court granting divorce on account of

irretrievable breakdown of marriage, it would

not be open to us to follow suit, since the

said judgment is edificed on Articles 141 and

142 of the Constitution of India.

10. That being said, we are called

upon to examine the validity of the reasons

recorded by the learned Family Court, in

dismissing the application of the

appellant/petitioner to set aside the exparte

decree.

11. As rightly argued by Sri.A. Navas

Jan, RW1 is the respondent himself and RW2 and

RW3 are military officers - the first of whom

is the 'Buddy' of the respondent; while, the

second is the Head Clerk, working in the "Tapal

Division" of the Defence Establishment. Going

by the testimony of RW1, it is expressly

admitted that he and the appellant/petitioner 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

are living in the same house, which is allotted

to him as a defence officer; and that he had

got the summons issued to her in the same

address. RW2 is the 'Buddy' of RW1 - a person

by name Sri.Ugle Pavan - who admitted that he

was a Sepoy of RW1 in his Army Headquarters at

West Hill, Kozhikode; and that he obtained the

summons addressed to the appellant/petitioner

from Subedar Prakasan (RW3), the Head clerk of

the Military Unit. He says that he went to the

quarters of RW1 and gave the summons to him in

the presence of the appellant/petitioner and

their son; and then stated that RW1 thereafter

handed over the same to the

appellant/petitioner. He further testified that

the appellant/petitioner opened the cover, read

it, took a photo of the same, and then tore it

off, shouting at RW1 in English.

12. Interestingly, RW3 is Subedar 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

Prakasan - the Head Clerk of the Military

Establishment - who deposed that, on

17.01.2024, he received a registered 'Tapal"

from the learned Family Court, Kozhikode,

addressed to the appellant/petitioner and that

he gave it to RW2, since he is the 'Buddy" of

RW1.

13. Pertinently, the learned Family

Court went through the "Defence Service

Regulations", to hold that all "Tapals"

addressed to servicemen and their families are

served in the manner as has been deposed by

RW3; and therefore, that such service require

to be accepted.

14. However, what is relevant is that

both RW2 and RW3 are subordinates of RW1; and

even if we are to accept what RW3 had stated,

one fails to understand how implicit reliance

could be placed on the testimony of RW2, to the 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

effect that the appellant/petitioner tore off

the summons and shouted at RW1, when it is

expressly admitted by RW1 that he is his

"Buddy", thus being under his command and

control. Indibitably, the version of RW2 have

to be taken carefully, in view of the specific

relationship between him and RW1.

15. That said, even if we are to

travel with RW2, to the extent of his

deposition that he had handed over the cover

received from RW3 to RW1, it can only mean that

the summons issued by the learned Family Court

had reached the residence of RW1 at the Army

Quarters at West Hill, Kozhikode. His further

testimony, that he handed over the summons to

RW1 in the presence of the appellant/petitioner

and their son, obviously could not have been

given much of primacy on account of the afore

factors; and his assertion that the 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

appellant/petitioner tore it off, again ought

to have been taken with some caution.

16. That apart, as rightly argued by

Sri.A.Navas Jan, the delay in his client

approaching the learned Family Court, to have

the exparte decree set aside, is only 67 days.

17. In normal circumstances, it would

not have even required the learned Family Court

to make the parties adduce evidence, when the

delay was comparatively small; but, perhaps it

did so, on account of the strong objections

impelled by the respondent.

18. Therefore, though we cannot find

blame with the learned Family Court in the

course adopted by it, we cannot approve its

findings in the impugned order in

I.A.No.2/2024.

19. Needless to say, the conclusion of

the learned Family Court, that the 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

appellant/petitioner should be construed to

have validly received the summons from it,

cannot find our favour.

20. Perhaps sensing our mind as afore,

Sri.Praveen K.Joy - learned counsel for the

respondent, requested that, if this Court is

inclined to direct the learned Family Court to

dispose of O.P.No.75/2024 on its merits, then

it may be directed to do so within a time frame

to be fixed by us.

21. We notice that the Original

Petition has been pending only for the last

less than a year. It is common knowledge that

Family Courts in Kerala are enduring huge

workload. We cannot, therefore, fix time frames

for Original Petitions to be disposed of

finally.

In the afore circumstances, we allow Mat

Appeal No.1138 of 2024 and OP(FC)No.27 of 2025;

2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

and consequently, set aside the impugned order

in I.A.No.2/2024, as also the exparte decree

and judgment dated 11.04.2024 in

O.P.No.75/2024; with a consequential direction

to the learned Family Court to dispose of the

said O.P, affording necessary opportunities to

both sides, as expeditiously as is possible.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

M.B. SNEHALATHA JUDGE

SAS 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

APPENDIX OF OP (FC) 27/2025

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE PETITION FILED BY THE RESPONDENT HEREIN AS OP NO. 75/2024 BEFORE THE FAMILY COURT, KOZHIKODE

Exhibit P2 A TRUE COPY OF THE JUDGMENT DATED 11.04.2024 IN OP NO. 75/2024 PASSED BY THE FAMILY COURT, KOZHIKODE

Exhibit P3 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 2/2024 DATED 17.07.2024 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, KOZHIKODE

Exhibit P4 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 3/2024 DATED 17.07.2024 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, KOZHIKODE

Exhibit P5 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 4/2024 DATED 17.07.2024 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, KOZHIKODE

Exhibit P6 TRUE COPY OF THE COUNTER DATED 25.07.2024 IN

Exhibit P7 TRUE COPY OF THE COUNTER DATED 25.07.2024 IN

Exhibit P8 TRUE COPY OF THE COUNTER DATED 25.07.2024 IN

Exhibit P9 A TRUE COPY OF THE ORDER DATED 22.11.2024 IN I.A NO.2/2024 IN OP NO. 75/2024 PASSED BY THE LEARNED FAMILY COURT KOZHIKODE

Exhibit P10 A TRUE COPY OF THE ORDER DATED 22.11.2024 IN I.A NO.3/2024 IN OP NO. 75/2024 PASSED BY THE LEARNED FAMILY COURT KOZHIKODE 2025:KER:8235 [Mat.Appeal No.1138/2024, OP (FC) NO. 27/2025]

APPENDIX OF MAT.APPEAL 1138/2024

PETITIONER ANNEXURES

Annexure A1 A TRUE COPY OF THE PETITION FILED BY THE RESPONDENT HEREIN AS OP NO. 75/2024 BEFORE THE FAMILY COURT, KOZHIKODE

Annexure A2 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 2/2024 DATED 17.07.2024 FILED BY THE APPELLANT HEREIN BEFORE THE FAMILY COURT, KOZHIKODE

Annexure A3 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 3/2024 DATED 17.07.2024 FILED BY THE APPELLANT HEREIN BEFORE THE FAMILY COURT, KOZHIKODE

Annexure A4 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 4/2024 DATED 17.07.2024 FILED BY THE APPELLANT HEREIN BEFORE THE FAMILY COURT, KOZHIKODE

Annexure A5 TRUE COPY OF THE COUNTER DATED 25.07.2024 IN

Annexure A6 TRUE COPY OF THE COUNTER DATED 25.07.2024 IN

Annexure A7 TRUE COPY OF THE COUNTER DATED 25.07.2024 IN

Annexure A8 A TRUE COPY OF THE ORDER DATED 22.11.2024 IN I.A NO.2/2024 IN OP NO. 75/2024 PASSED BY THE LEARNED FAMILY COURT KOZHIKODE

Annexure A9 A TRUE COPY OF THE ORDER DATED 22.11.2024 IN I.A NO.3/2024 IN OP NO. 75/2024 PASSED BY THE LEARNED FAMILY COURT KOZHIKODE