IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY ,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940
Mat.Appeal.No. 470 of 2010
AGAINST THE ORDER/JUDGMENT IN OP 645/2008 of FAMILY COURT,PALAKKAD DATED 28-10-2009
MOHANAN, AGED 39 YEARS,
S/O SANKU, PADINJAREPURAKKAL VEEDU, MATTAYA,NHAGATTIRI P.O.,
OTTAPALAM TALUK, PALAKKAD DISTRICT,NOW RESIDING AT PB NO.3782, DUBAI, UAE, REPRESENTED
BY POWER OF ATTORNEY HOLDER RADHAKRISHNAN, AGED 33 YEARS, MATTAYA, NHAGATTIRI P.O., OTTAPALAM TALUK,PALAKKAD DISTRICT.
BY ADVS.SRI.K.A.MANZOOR ALI,SRI.T.K.SURESH
AGED 35 YEARS
D/O VALAYUDHAN, PORKKULAM VEEDU, PORKKULAM P.O.,KUNNAMKULAM, THRISSUR DISTRICT.
AGED 42 YEARS
S/O SANKU, MATTAYA, NHAGATTIRI P.O., OTTAPALAM TALUK,PALAKKAD DISTRICT.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
This Mat. Appeal is filed by the petitioner in OP No.645/2008 on the file of Family Court, Palakkad. He challenges judgment dated 28.10.2009 by which his petition for divorce had been dismissed on the ground that the petition was presented by power of attorney holder.
2. The short facts of the case are as under. The parties are described as shown in the original petition. Before the Family Court, though notice was served on the respondents, the second respondent remained ex parte before the court below. The first respondent though appeared, did not contest the matter.
3. The petitioner married the first respondent on 06.09.1996 as per Hindu religious rites and ceremonies. A girl child was born in the wedlock. He was working abroad during the relevant time. His allegation was that when he came home during February, 2007, the first respondent was not co-operating to continue the marital relationship. Later he found out that the first respondent was having sexual relationship with the second respondent, which he caught red-handedly. The respondents also admitted the same and the matter was informed to the parents of the first respondent and thereafter they started living separately. It is in the aforesaid circumstances he sought for divorce under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 (“Act” for brevity). The petition was filed alleging adultery and cruelty.
4. As already indicated, the first respondent though appeared, did not take any further steps in the matter. The second respondent remained ex parte. The petitioner was examined as PW1. He gave evidence in line with the averments in the petition. The petition was dismissed on the ground that the petition was presented by the power of attorney holder. The learned Family Court has relied upon a Division Bench judgment of this Court in Regharani v. Prabhu [2007 (3) KLT 917] in order to arrive at a conclusion that the petition was not maintainable as it was filed by the power of attorney holder. But it is relevant to note that the Division Bench considered an application under Section 13B of the Act, where divorce was sought on mutual consent. This is not a case where divorce is sought on mutual consent, whereas divorce is sought on the ground of adultery and cruelty. Insofar as there is specific provision under the Code of Civil Procedure enabling a petition to be filed through a power of attorney holder, there is nothing wrong in the Family Court entertaining an application even though it is filed through power of attorney holder. The provisions of CPC squarely applies to matters that are entertained by Family Court as well.
Therefore, we do not think that the Family Court was justified in rejecting the petition at the fag end of the trial on the ground that it was not maintainable. In the decision relied upon by the Family Court, the Division Bench has only considered a petition under Section 13B of the Act, which proposition cannot be imported to an application filed under Section 13 of the Act.
5. In the light of the evidence adduced by the appellant/petitioner, it is clear that the respondents have been indulging in adultery and there is no contra evidence.
In the result, we are of the view that this Mat. Appeal has to be allowed. Accordingly, this Mat. Appeal is allowed setting aside the judgment of the Family Court dated 28.10.2009 in OP No.645/2008. The Original Petition is allowed. The marriage between the petitioner and the first respondent shall stand dissolved by a decree for divorce. No costs.