Kerala High Court
Mathew Mathai vs Elizabeth Kurian @ Daina on 19 February, 2010
Author: K.M.Joseph
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35154 of 2009(R)
1. MATHEW MATHAI,
... Petitioner
Vs
1. ELIZABETH KURIAN @ DAINA,
... Respondent
For Petitioner :SRI.RINNY STEPHEN CHAMAPARAMPIL
For Respondent :SRI.SUNIL CYRIAC
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :19/02/2010
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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W.P.(C) No.35154 of 2009-R
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Dated, this the 19th day of February, 2010
J U D G M E N T
K.M.Joseph, J.
Petitioner seeks the following reliefs:--
"i). to direct the Family Court, Kottayam at Ettumanoor to provide an opportunity to the petitioner's counsel to cross examine the petitioner and her witnesses, if any, in O.P No.38 of 2009 and in M.C.No.13 of 2009 and to permit the power of attorney holder of the petitioner to adduce evidence for and on his behalf in the said two cases.
ii). to direct the Family Court, Kottayam at Ettumanoor not to insist on the personal appearance of the petitioner for the purpose of cross examining the respondent and her witnesses, if any, and for adducing evidence in O.P.No.38 of 2009 and M.C No.13 of 2009 and;
iii). O direct the Family Court, Kottayam at Ettumanoor to consider and pass orders on Exhibit P1 before proceeding further."
2. Petitioner is the Ist respondent in O.P.No.38 of 2009 and respondent in M.C.No.13 of 2009 on the file of the Family Court, Kottayam at Ettumanoor filed by his wife. O.P.No.38/2009 is a money suit. Petitioner also filed original petition seeking divorce as O.P.No.925 of 2009. The petitioner WPC NO.35154/2009 -2- is working abroad. His complaint is as follows:-- He has filed an application for being represented by a counsel. That application was allowed. His counsel filed vakalath in both M.C No.13 of 2009 and O.P.No.38 of 2009. It is stated that he had to go back to his place of employment. Counselling was completed on 2.3.2009. He appointed his brother to conduct all the cases. On 3.11.2009 on which date all the cases were posted together for evidence the petitioner's power of attorney and counsel were present before the Court fully prepared to cross examine the respondent and her witnesses. But, the Family Court Judge made an oral observation that evidence should be adduced in the presence of the petitioner. It is stated that after making such observation, the Family Court adjourned all the three cases to 30.11.2009 for evidence. After the adjournment petitioner's power of attorney informed the petitioner about the observation made by the Family Court. It is the case of the petitioner that he made every effort to avail a short leave from his employer. According to the petitioner, his employer told him that his contract will be terminated if he goes on leave and he in turn conveyed to his power of attorney. The WPC NO.35154/2009 -3- power of attorney filed Ext.P1 application to permit the petitioner's counsel to cross examine the respondent and also to permit him adduce evidence. It is stated that without considering the same, the Family Court dismissed the petition filed for divorce. There is complaint about the non- consideration of Ext.P1 also.
3. This Court called for a report from the Family Court. There are two reports filed by the Family Court. In the first report dated 9.12.2009 the learned Family Court Judge would inter alia report that in O.P.38/2009 and M.C.13/2009 the petitioner was set exparte on 30.11.2009 and the evidence of the respondent has been taken and posted for further evidence and hearing on 17.12.2009. Pursuant to the order passed by this Court a further report dated 26.12.2009 has been given. Therein it is inter alia stated as follows:-
The power of attorney holder filed I.A.2178/2009 seeking permission to appoint the counsel and it was posted to 3.11.2009. But, the counsel did not appear. It is stated that usually the permission petition of the counsel will be allowed only in the presence of the counsel. It is stated that the petition was adjourned to 30.11.2009. On the said day WPC NO.35154/2009 -4- neither the party (power of attorney holder) nor the counsel attended the Court. Hence the permission of appearance by the counsel not obtained. It is stated that even then it will be allowed on the next hearing date and it is the practice followed by the Court. It is stated that on 30.11.2009 there is no adjournment application also. It is further stated that the Court will not insist the presence of the party unnecessarily who is employed abroad. It is stated that usually in divorce cases presence of the actual party will be insisted when it is needed for the purpose of counselling and evidence. It is stated that the Court usually allow in almost all cases the permission petition filed by the counsel. Not even in a single case the permission petition is dismissed by the court, it is stated. From 23.9.2009 the petitioner is absent. The wife was present. It is further stated that O.P.No.38/2009 is a money suit and presence of actual party is not necessary. The power of attorney will be allowed to conduct the money suit and the maintenance case.
4. We heard the learned counsel for the parties.
As far as O.P.No.38/2009 and M.C.No.13 of 2009 are concerned further proceedings had been stayed by this Court. WPC NO.35154/2009 -5- We take note of the reports of the Family Court Judge and record the same. We dispose of the writ petition making it clear that it will be open to the petitioner either to apply for setting aside the order in O.P.38 of 2009 and M.C.No.13 of 2009 or to appear at the next day of hearing and avail the benefit of Order 9 Rule 7 C.P.C. It is open to the petitioner also to file appropriate application if so advised for recalling the respondent or her witnesses for the purpose of cross- examination and the Family Court shall pass appropriate orders in that regard.
(K.M.JOSEPH) JUDGE.
(M.L.JOSEPH FRANCIS) JUDGE.
MS