Kerala High Court
Renuka Manoj vs T.C. Manoj on 11 September, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 5TH DAY OF JULY 2016/14TH ASHADHA, 1938
Mat.Appeal.No. 362 of 2014 ()
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O.P.NO. 1127/2012 OF FAMILY COURT, THRISSUR.
.........
APPELLANT/RESPONDENT:
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RENUKA MANOJ,
THEKKE CHANGARAMPATT VARMA, R/O NO.18,
VENUS ABODE CO-OPERATIVE HOUSING SOCIETY,
PLOT NO.L2/2, SECTOR IV. SHREE NAGAR,
THANE-400 604 MUMBAI, MAHARASHTRA.
BY ADVS.SRI.DINNY THOMAS,
SRI.ALBERT V.JOHN,
SRI.JAISHANKAR V.NAIR.
RESPONDENT/PETITIONER:
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T.C. MANOJ,
S/O. PROF. SATHYABHAMA VARMA,
THEKKE CHANGARAMPATT HOUSE,
NEAR KUTTANKULANGRA LANE,
POONKUNNAM P.O., THRISSUR DISTRICT,
NOW RESIDING AT 4TH FLOOR, MAYFAIR SUITES,
PARKLANDS ROAD, NAIROBI, KENYA.
BY ADV. SRI.G.SREEKUMAR (CHELUR).
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 29/06/2016, THE COURT ON 05/07/2016 DELIVERED THE
FOLLOWING:
rs.
Mat.Appeal.No. 362 of 2014
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE 1 COPY OF THE DECREE IN MP. NO.167/2003 OF CIVIL
JUDGE (SD), THANE.
ANNEXURE 2 COPY OF THE ORDER IN I.A. NO.1923/2003 IN O.P. NO.582/2003
OF FAMILYCOURT, THRISSUR.
ANNEXURE 3 COPY OF THE ORDER IN WP(C).NO.22500/2005.
ANNEXURE 4 COPY OF THE ORDER DATED 11/09/2007 OF THE FAMILY COURT,
THRISSUR.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
K.SURENDRA MOHAN & MARY JOSEPH, JJ.
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Mat.Appeal No.362 of 2014
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Dated this the 5th day July, 2016
JUDGMENT
Mary Joseph, J.
The respondent in O.P.No.1127 of 2012 on the files of the Family Court, Thrissur is the appellant. The appellant and the respondent belong to Hindu Community and their marriage was solemnized on 10.07.1990 at Mahila Samajam Auditorium, Chemboor, Bombay, as per Hindu religious rites. Two children were born in the wedlock. The relationship got strained after a peaceful and happy married life for sometime. The life thereafter turned miserable for the respondent and the children on account of the cruel treatment, mental as well as physical, extended by the appellant to them. The respondent had taken the appellant and children abroad, where he was working, but, the life there did not last long due to the attitude of the appellant creating problems to them. It has become Mat.Appeal No.362 of 2014 intolerable for the respondent to continue the marital life with the appellant. The relationship was irretrievably broken down and the respondent was left with no other alternative than to apply for dissolution of marriage. Accordingly, the respondent preferred O.P.No.1127/2012 before the Family court, Thrissur, under Section 13(1) (i-a) of the Hindu Marriage Act for the purpose, raising cruelty as the ground. The Family court, Thrissur granted an order in favour of the respondent, whereby the marriage solemnized on 10.07.1990 was dissolved.
2. Aggrieved by the decree granting dissolution of marriage, the respondent therein preferred the captioned appeal seeking to set aside the order and decree dated 03.07.2013 in O.P.No.1127/2012 of the Family court, Thrissur on the grounds as enumerated herein below.
(i) Material facts are suppressed by the respondent in O.P.No.1127/2012 before the Family court, Thrissur to obtain the order.
Mat.Appeal No.362 of 2014
(ii) O.P.No.582/2003 was filed before the Family Court, Thrissur, seeking a decree for dissolution of marriage by the respondent and I.A.No.1923/2003 was filed raising the question of jurisdiction of Family court, Thrissur to entertain the matter as the preliminary issue. The Family court, Thrissur found upon consideration of the said I.A. that the question of place of last residence can be decided only after taking evidence and cannot be decided as a preliminary issue and passed an order accordingly. The appellant took up the matter before this Court in W.P.(C)No.22500/2005. By judgment dated 05.01.2006, this Court had set aside the order and directed the Family court, Thrissur to decide the question of jurisdiction as a preliminary issue. Thereupon, the Family court, Thrissur reconsidered that question and held vide order dated 11.09.2007 that it has no jurisdiction and returned the original petition for presentation before the court having jurisdiction. The respondent did not prefer any petition thereafter before the jurisdictional court. Instead, preferred Mat.Appeal No.362 of 2014 O.P.NO.1127/2012 before the Family court, Thrissur itself, after a lapse of time. O.P.NO.1127/2012 being barred by res judicata, is not liable to be proceeded with.
3. The address of the appellant was shown incorrectly and due to non-service of summons, the appellant could not appear to contest the case and the proceedings continued after declaring him ex-parte and culminated in the passing of the impugned ex-parte order.
4. The appellant had approached the court suppressing all material facts and on that sole reason itself, the proceedings in O.P.NO.1127/2012 which culminated in the passing of the order dissolving the marriage is only an abuse of process of the court and therefore, deserve to be set aside.
5. Had the respondent been served with process in O.P.No.1127/2012, all those aspects under suppression could have been apprised to the Family court, Thrissur and the proceedings would have been put to an end by the court. Due to the insufficient and incorrect address furnished by the Mat.Appeal No.362 of 2014 respondent the appellant was not served with and thereby denied with an opportunity to contest the case with all possible and probable defences.
6. Sri.Dinny Thomas and Sri.Sreekumar (Chelur), the respective counsel appearing for the appellant and respondent are heard. The materials available to us along with the Appeal Memorandum are perused.
7. The tenability of the contention of the appellant that her address was furnished incorrectly by the respondent could easily be drawn from the endorsements in the repeated returned processes of which reference is made in the appeal Memorandum. It is contended that, ultimately, through paper publication dated 25.04.2013 only, the process was completed successfully. It is contended that the respondent was well aware of the address of the appellant and the address was furnished incorrectly, solely due to his fraudulent intention to get a decree behind the appellant. According to the appellant the respondent was successful in obtaining a decree behind Mat.Appeal No.362 of 2014 the appellant and it, being the outcome of a foul play will not sustain and call for interference. The contentions aforesaid have not been denied by the respondent. On the contrary, the learned counsel for the respondent pleaded only for a remand of the matter to the court below.
6. To add credibility to the aforesaid contentions, the appellant had produced Annexure A1 to A4. Annexure A1 is the true copy of the decree in M.P.No.167/2003 of the Civil Judge(SD), Thane, Annexure A2 is the true copy of the order in I.A.No.1923/2003 in O.P.No.582/2003, Annexure A3 is the true copy of the order dated 05.01.2006 of this Court in W.P. (C).No.22500/2005 and Annexure A4 is the true copy of the order dated 11.09.2007 in I.A.No.1923/2003.
7. Going by Annexure A4, we see basis for the contention of the appellant that incorrect address was furnished by the respondent in O.P.NO.1127/2012. We also see force in the contention of the appellant that the respondent was aware of the full correct address of the Mat.Appeal No.362 of 2014 appellant being a contestant in M.P.No.167/2003 and O.P.No.582/2003. O.P.NO.1127/2012 was filed by the respondent much later and fraudulent intention is discernible from his act of furnishing incorrect address of the respondent, despite the fact that the correct address was known to him.
8. It is discernible from Annexure A4 that the question of maintainability on the ground of lack of jurisdiction was heard and found against by the Family court, Thrissur by order dated 11.09.2007. In the order, the Family court, Thrissur directed return of the original petition to the respondent to take the recourse of presenting the same before the proper court having jurisdiction. This Court is convinced from the materials available that the respondent did not comply with the direction of the court below in its order dated 11.09.2007 to present the original petition before the appropriate court having jurisdiction, but has filed O.P.No.1127/2012 suppressing material facts and furnishing incorrect address of the appellant before the very same court Mat.Appeal No.362 of 2014 after a lapse of 5 years, which as per the order is devoid of jurisdiction to entertain the petition. Evidently summons was not served upon the appellant and returned with the endorsement 'incorrect address'. Consequently, paper publication was effected and service was completed. But, it is pertinent to note that paper publication was also effected in the available address of the appellant in which summons was issued. Therefore, there is force in the contention of the appellant that opportunity to contest the original petition was denied to him by the lapses of the respondent furnishing the incorrect address for service. Going by the impugned ex- parte judgment also, it is convincingly clear that the appellant has been denied the opportunity to contest O.P.NO.1127/2012 without any fault or laches from his part. Evidently, the respondent had acted with malafide intention and his venture to obtain a decree turned successful. Moreover, the judgment and decree in O.P.No.1127/2012 was passed by a court which had found the preliminary issue regarding jurisdiction in an Mat.Appeal No.362 of 2014 identical matter, in the negative. That order was passed by the Family court, Thrissur on 11.09.2007 and challenge having not been raised on the finding, has become final. Therefore, the order under challenge in this appeal can be taken to have been passed by the Family court, Thrissur without jurisdiction and therefore nonest in the eye of law.
9. In the aforesaid circumstances, justice would only be served with on affording an opportunity to the appellant to appear and contest, bringing forth all the matters allegedly under suppression. As observed earlier the impugned judgment and decree will not sustain in the eye of law and is liable to be declared as null and void.
In the result, the Mat.Appeal is allowed. The impugned order dated 03.07.2013 is set aside.
K.SURENDRASd/-
MOHAN, JUDGE Sd/-
MARY JOSEPH, JUDGE vs