Kerala High Court
Shameerali vs Sumayya on 8 October, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:74580
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 8TH DAY OF OCTOBER 2025 / 16TH ASWINA, 1947
MAT.APPEAL NO. 688 OF 2025
AGAINST THE ORDER DATED 02.04.2024 IN I.A.NO.1 OF 2024 IN OP
NO.246 OF 2022 OF FAMILY COURT, MALAPPURAM
APPELLANT/RESPONDENT:
SHAMEERALI
AGED 34 YEARS
S/O SAIDALAVI EETHA, MAKKAKKAD HOUSE, KODIKUTHIPPARAMB,
PULIKKAL P.O, KONDOTTY,, PIN - 673637
BY ADVS.
SRI.P.E.SAJAL
SHRI.MUHAMMED HISHAM T.
SMT.FATHIMA RINSHA T.P.
SHRI.MUHAMMED NIHAL M.
SHRI.ABDUL KHADER THOPPASSERI
RESPONDENT/PETITIONER:
SUMAYYA
AGED 27 YEARS
D/O KUNHAPPU, VADAKKUNGARA (H), ANTHIYOORKUNN,
VALIYAPARAMB, KONDOTTY,, PIN - 673637
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
08.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.688 of 2025
2
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JUDGMENT
Devan Ramachandran,J.
The appellant was the respondent in O.P.No.246/2022
on the files of the learned Family Court, Malappuram, filed by the
respondent herein, seeking recovery of her gold and patrimony
from him. This Original Petition, along with M.C.No.98/2022 -
again filed by the respondent, were allowed by the learned Court
by the judgment and decree dated 23.06.2022, recording that
the appellant did not appear and that he has been set ex parte.
2. The appellant, thereupon, filed I.A.No.02/2024,
invoking the provisions of Order IX Rule 13 of Code of Civil
Procedure (CPC), praying that the ex parte decree against him
be set aside; accompanied by I.A.No.01/2024 seeking that the
delay of 525 days in filing the former be condoned. These
applications have been dismissed by the learned Family Court;
and consequently, the appellant has approached this Court
seeking that the said order, as also the ex parte decree and
judgment against him, be set aside.
3. The endorsements on the files of this case show that
the summons to the respondent has been served validly.
However, she is neither present in person, nor represented
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through Counsel; and this has been the situation when we
considered this matter earlier also.
4. Sri.P.E.Sajal - learned Counsel for the appellant,
argued that the ex parte decree and judgment of the learned
Family Court are infirm because, they have been issued without
offering an opportunity of being heard to his client; while, the
impugned orders in I.A.No.02/2024 and I.A.No.01/2024 are
unlawful since they have been dismissed without looking into the
relevant aspects. The learned Counsel explained that his client
was abroad for his employment from 2019 to 2024 and hence
being unable to appear before the learned Family Court at the
time when the ex parte decree against him was issued on
23.06.2022; and that, immediately after he returned, he made
arrangements for filing I.A.No.2/2024 to have the same set
aside, accompanied by I.A.No.1/2024 to condone the delay. He
argued that, even though relevant documents were produced
before the trial Court along with the applications, including the
copies of the passport, the same have not been considered by it;
thus leading to the dismissal of these applications, allegedly, in
an illegal manner.
5. We notice that the appellant has filed an application
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before this Court producing the copies of his passport as
Annexure A1. Though it would not be prudent for us to assess
the merits of the same, we are of the view that the appellant
deserve to be given one more opportunity to establish his case.
This is more so because, the respondent has chosen not to
appear, in spite of valid service of summons.
6. We are persuaded to the afore view also for the
reason that, in the order of the learned Family Court dated
02.04.2024, it only says that no documents were produced by
the appellant to show that he was working abroad from 2019
onwards. It is this, which is now sought to be controverted
through Annexure A1 document; but, we must record that we do
not approve the submissions of Sri.P.E.Sajal that the same, or
the original of the passport had been produced before the
learned Family Court earlier. In fact, there is not even a whisper
so having done in the memorandum of this appeal; and we can
only, therefore, treat such submissions to be contrary to facts.
7. This, however, cannot denude the right of the
appellant to a fair procedure, for which, we believe that we
should be given one more chance. Of course, such an
opportunity can be used by him, only if he is able to produce
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necessary documents to establish the reasons why he was
unable to appear before the Court.
8. In the afore circumstances, we allow this appeal,
however, only in part; thus setting aside the orders of the
learned Family Court, Malappuram, in I.A.No.01/2024 and
I.A.No.02/2024 in O.P.No.246/2022; with a consequential
direction to the learned Family Court to reconsider the said
applications, after affording necessary opportunities to both
sides, for producing additional documents and tendering
evidence, if required. However, since the Original Petition is of
the year 2022, we direct the learned Family Court to take every
endeavor to ensure that this exercise is completed without any
avoidable delay.
Sd/-
DEVAN RAMACHANDRAN,
JUDGE
Sd/-
M.B. SNEHALATHA,
JUDGE
Mms
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APPENDIX OF MAT.APPEAL 688/2025
PETITIONER'S ANNEXURES
Annexure A1 A TRUE COPY OF THE PETITIONER'S
PASSPORT, SHOWING THAT HE WAS ABROAD
DURING THE RELEVANT PERIOD
