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2013 DIGILAW 411 (KER)

Bhagyalakshmi v. Balamani

2013-05-22

ANTONY DOMINIC, P.D.RAJAN

body2013
JUDGMENT : Antony Dominic, J. 1. Heard the learned counsel for the parties. 2. The appeal is filed challenging the order passed by the Family Court, Kozhikode in IA 1999/11 in OP 350/11 filed by her seeking to set aside the ex parte decree passed by the court. The respondent filed OP seeking a decree of divorce on the ground of mental cruelty and by ex parte order dated 17/6/11, the petition was allowed. Subsequently, IA No.1999/11 was filed by the petitioner seeking to set aside the ex parte order. That application is rejected by order dated 22/11/11 and the reason stated is that the respondent herein, the husband has remarried one Smt.Radha on 14/10/11. For that reason, according to the Family Court, no purpose will be served by setting aside the ex parte order. It is challenging this order, the appeal is filed. 3. Although the learned counsel appearing for the respondent herein sought to justify the impugned order passed by the Family Court, the contentions raised by him are on the merits of the IA filed by the appellant herein seeking to set aside the ex parte decree. He also relied on Annexure R1 obtained by him under the Right to Information Act, which according to him shows that the appellant was aware of the pendency of the proceedings before the Family Court. 4. As we have already noticed, the only reason stated by the Family Court to reject the application made by the appellant to set aside the ex parte decree was that the respondent got married subsequent to the ex parte decree. Such a development which took place subsequent to the ex parte decree which is sought to be set aside, in our view, cannot by itself determine the fate of the application made by the appellant. Therefore, the view taken by the Family Court is untenable for that reason, we set aside the order passed by the Family Court dismissing IA 1999/11 and restore the IA to the file of the Family Court. Accordingly, we dispose of the appeal with a direction to pass fresh orders on IA filed by the appellant with notice to the parties and after affording the parties an opportunity to adduce evidence and after hearing both of them.