Amirthakani vs Selvaraj

C.S. Karnan, J.—The Petitioner has filed the above civil revision petition to set aside the order passed in I.A. No. 33 of 2010 in H.M.O.P. No. 53 of 2010 dated 23.09.2010 on the file of the Subordinate Court, valliyoor.

The nutshell facts of the case are as follows:

The Respondent/husband has filed HMOP No. 53 of 2008 before the Subordinate Court, Valliyoor against the Petitioner/wife herein, for divorce on the ground of cruelty and desertion. The said case was set ex-parte on 04.01.2010. Against the ex-parte decree and decretal order, the Petitioner/wife has filed an interlocutory application in I.A. No. 33 of 2010 to set aside the same. The interlocutory application was dismissed by the learned Subordinate Judge, Valliyoor and the judgment and decree passed in HMOP No. 53 of 2008 dated 04.01.2010 was confirmed. Against the dismissal order, the above civil revision petition was filed to set aside the order passed in I.A. No. 33 of 2010 in H.M.O.P. No. 53 of 2008 dated 23.09.2010.

The learned Counsel for the Petitioner submitted that the Petitioner was set ex-parte on 04.01.2010. Against the ex-parte order, set aside application was filed within time. The non-appearance of the Petitioner was suffering from "Chicken gunia" which is a very virulent disease. As such, she is unable to move from her place. The valid reason given by the Petitioner was not accepted by the learned Judge, who dismissed the set aside application. The case is purely a family dispute between the husband and the wife. Therefore, the above said petition shall be disposed on merits, since marital life is involved in this case.

The learned Counsel for the Respondent/husband argued that the HMOP was filed on the ground of cruelty and desertion. The Respondent is well aware that the case was posted on 04.01.2010 for further hearing. Knowing this fact, the Petitioner had wantonly and deliberately not appeared before the Court. This attitude of the Petitioner clearly shows that she wants to harass the Respondent husband.

In view of the facts and circumstances of the case and arguments advanced by the learned Counsel and on perusal of the impugned order of the learned Judge, the Court is of the considered opinion that the case involves marital estrangement and has to be dealt with in the presence of both the parties. Therefore, the order and decretal order passed in I.A. No. 33 of 2010 in HMOP No. 53 of 2008 dated 23.09.2010 is set aside, and the main case in HMOP No. 53 of 2008 is restored on the file of the Subordinate Court, Valliyoor. Accordingly ordered. This Court further directs the learned Judge to dispose the case within a period of three months from the date of receipt of this order, without being influenced by the discussions of this Court.

Resultantly, the above civil revision petition is disposed of with the above observations. Consequently the order and decretal order passed in I.A. No. 33 of 2010 in HMOP No. 53 of 2008 dated 23.09.2010 on the file of the Subordinate Court, Valliyoor is set aside, and the HMOP No. 53 of 2008 is restored on the file of the Subordinate Court, Valliyoor. There is No. order as to costs.