S. PREMA Vs. P. SURESH KUMAR

JUDGEMENT

(1.) This appeal is filed by the petitioner (wife) in O.P. No. 747/2008 on the files of the Family Court, Thiruvananthapuram. She filed the original petition for dissolution of marriage, against the respondent (husband) on the grounds of cruelty as well as desertion. She had also claimed declaration in respect of petition A and B scheduled properties, that those are properties though being acquired in the joint names of the spouses, exclusively owned by her. The Family Court, Thiruvananthapuram dismissed O.P. No. 747/2008 by the impugned judgment, dated 11.8.2015 on the solitary ground that the O.P. was barred by Order IX Rule 9 of the C.P.C., despite some of the findings with respect to other issues having been considered on merits and answered in favour of the appellant.

(2.) The appellant had formerly instituted O.P. No. 726/2004 before the same Family Court for dissolution of her marriage with the respondent/husband on the same grounds of cruelty and desertion and also for a declaration that she is the exclusive title holder of petition A and B scheduled properties. That O.P. was dismissed for default through Ext. B2 judgment, on 30.5.2005. It is based on Ext. B2 judgment, that the court below dismissed the present O.P. by applying the legal bar provided under Order IX Rule 9 of the CP.C. However, on merits, the court below found that grounds of cruelty and desertion were proved while it held that the appellant/wife failed to prove exclusive title over petition B scheduled property acquired by virtue of Ext. A13 sale deed, dated 3.4.2000 in the joint names of spouses from her father. As regards the A schedule, it held that, the absolute title vested in her alone and the respondent/husband was only a name lender to Ext. A12 settlement deed, dated 19.1.1999 executed by her father in the names of both spouses.

(3.) The appellant/wife is aggrieved by the impugned judgment in as much as it dismissed O.P. No. 747/2008 on the solitary ground of the legal bar provided under Order IX Rule 9 of the C.P.C. The respondent had filed the above Cross Objection challenging the findings entered by the court below on merits adjudicating upon the grounds for dissolution of the marriage as well as deciding, the disputed title over petition A and B scheduled properties as if the court was bound to have dismissed the O.P. at the threshold itself solely based on the bar provided under Order IX Rule 9 of the Code.