NIDHI SUSAN KURIAN Vs. TEJAZ K JOHN

JUDGEMENT

(1.) The petitioners in IA.No.855/2016 in OP.No.2396/2014 on the file of the Family Court, Ernakulam have filed this petition challenging Ext.P19 order of that Court under Article 227 of the Constitution of India.

(2.) It is alleged in the petition that the first petitioner is the daughter of second petitioner and wife of the first respondent. A male child was born to them in that wedlock and according to the first petitioner, the first petitioner and the child were deserted by the first respondent and the child was looked after by her as she was employed and residing in United States of America with the Child since January 2015. The first respondenthusband filed Ext.P1 OP.No.987/2011 for divorce. He also filed Ext.P2 OP.No.1989/2013 seeking decree for money and other movable properties alleged to have been given to the first petitioner and appropriated by her during their matrimonial life. He also filed Ext.P3 OP.No.47/2015 for custody of the child against the petitioners and mother of the first petitioner. The first petitioner herein filed Ext.P4 petition as OP.No.2396/2014 before the Family Court, Ernakulam against the first respondent herein under Section 26 of the Protection of Women from Domestic Violence Act, 2005. All these cases are pending before the same Court. The first petitioner filed Ext.P5 objection to Ext.P1 OP.No.987/2012 and also filed Ext.P6 objection to Ext.P2 OP.No.1989/2013 and the petitioners along with other respondent filed Ext.P7 objection to Ext.P3 OP.No.47/2015. The first respondent was employed in South America till he came back to India some time at the middle of 2015. The first petitioner attended for counselling in all the above cases and left for employment abroad in January, 2015. Exts.P1 to P4 were being posted together before the Counsellor and the Court and the conciliation proceedings were made impossible by the first respondent and he did not file any written objection in Ext.P4 proceedings. No effective counselling could be possible in these cases. All these cases were posted to 22.12.2015 and the second petitioner was present in Family Court on that day and a counsel also represented the petitioners. However, the Family Court dismissed OP.No.2396/2014 for default and petitioners filed IA.No.5012/2016 to set aside the same and the same was allowed evidenced by Ext.P8 and ExtP9 respectively. On the same day, an order was passed in Ext.P1 for ex parte evidence. IA.No.5012/2016 was filed to review that order evidenced by Ext.P10 and the same was allowed by Ext.P11 order of the Court below. Similarly the petitioners filed IA.No.5011/2015, IA.No.5013/2015 to review the order posting the cases for ex parte evidence in Exts.P2 and P3 proceedings and the same were allowed and those petitions and orders were produced as Exts.P12 to P15 respectively. The petitioners filed IA.No.855/2016 for joint trial of Exts.P1 to P4 evidenced by Ext.P16. By the time, a new Judge was appointed in Family Court and all these cases were adjourned and Ext.P16 application was also adjourned along with the same to 27.4.2016 for objections. The petitioners' counsel was informed on 25.4.2016 that evidence will be recorded in ExtP1 petition for divorce at 3.30 pm on the next day by an Advocate Commissioner appointed for that purpose. So the petitioners filed a memo before the Commissioner stating that joint trial application was filed. The Commissioner submitted an interim report regarding what transpired on the previous day evidenced by Ext.P17. The respondents filed Ext.P18 objection to Ext.P16 application and the Court below by Ext.P19 order dismissed the same which is under challenge.

(3.) Heard Sri. S.A. Razzak, the learned counsel appearing for the petitioners and Sri. T.M. Raman Kartha, the learned counsel appearing for the first respondent.