Radhika Sreekandath vs Vineeth Viswanathan

Amit Rawal, J.

Present petition is directed against the impugned order dated 20.3.2023 rendered in I.A No.9385 of 2022 and I.A 9387 of 2022 in OP No.2492 of 2020 whereby the application of the petitioner, wife for setting aside the ex parte judgment and decree dated 15.7.2022 granting divorce to the respondent, husband has been dismissed.

The facts in brief are as under; the marriage between the appellant and the respondent, husband was performed on 19.3.2014 as per the Hindu customary rites. There is no issue out of the wedlock .Stated to have resided at Thiruvananthapuram and at that time respondent, husband was working with Infosys, Thiruvananthapuram. Thereafter, as per the directions of the employer, had to leave for Germany on an assignment given by employer. It was alleged that the respondents-wife attitude towards him changed which resulted into a mental and physical cruelty, as enumerated in paragraph 2 of the divorce petition. Petitioner wife appeared and had taken adjournment on the ground that the talks of compromise were going on. The petition was filed in 2020. However believing that the compromise would be arrived at, was not advised to file the counter statement as it would have indulged into allegation and counter allegations. Unfortunately was proceeded ex parte and OP No.2492 of 2020 seeking divorce on various grounds as stated above was allowed vide judgment and decree dated 15.7.2022. It is in that circumstances, an application bearing I.A Nos.9385 and 9387 of 2022 were filed seeking condonation of delay of 139 days and setting aside of ex parte judgment and decree.

Learned counsel appearing on behalf of the petitioner submitted that the application for transfer of the divorce petition was filed in this Court which was transferred from Thiruvananthapuram to Ernakulam. She had been appearing therein but again was hopeful of arriving at some compromise. It is in that background, ex parte judgment and decree came to be passed. No harm and prejudice would be caused in case the delay of 139 days in condoning the delay of filing the application for setting aside the ex parte decree and judgment. and allowed to be contested on merits subject to any terms and conditions with this Hon'ble Court deems it appropriate.

On the other hand, learned counsel appearing on behalf of the husband submitted that after the divorce petition, husband has performed the marriage and five opportunities ie., on 28.2.2022, 9.5.2022, 27.6.2022 and 12.7.2022 were given for filing the counter but no counter was filed. Trial court had no other option but to proceed the petitioner, ex parte, resulted into ex parte decree. Her conduct would reveal that she had been extending both physical and mental cruelty and it is on that aspect divorce has been granted. There is no explanation of seeking condonation of delay of 139 days. The impugned order is perfectly legal and justified and do not call for any interference.

We have heard the learned counsel for the parties and appraised the paper book and of the view that it is a fit case where the impugned order and exparte judgment is liable to be set aside. Wife was hopeful of seeking some compromise or reproachment, and keeping in view this aspect did not intend to indulge into mud slinging or character assassination of the husband though the husband had sought the divorce on the ground of both and mental and physical cruelty. Such an act of the wife, would not be made to suffer while allowing the ex parte judgment and decree to sustain. No harm and prejudice is caused, in case the parties are permitted to contest the petition on merits by leading evidence in support of the respective stand or contemplated stand. Accordingly, the impugned order dated 20.3.2023 and as well as the ex parte judgment and decree dated 15.7.2022 rendered in OP No.2492 of 2020 are set aside. OP is restored to original number. Parties through their counsel are directed to appear before the competent court on 20.12.2023 and petitioner shall file the counter statement before 19.1.2024. Family Court shall endeavour to decide the petition as expeditiously as possible.

Petition stands allowed.