P MANI Vs. KALYANI

JUDGEMENT

(1.) BEING aggrieved by the dismissal of F.C.O.P.No.35 of 1997 on the file of Family Court, Salem (dated 24.06.2004) on the ground of non-appearance of appellant, the appellant has preferred this appeal.

(2.) BRIEF facts are that the marriage between appellant and respondent was solemnised on 8.11.1989 at Kosaripatti in Sankari Taluk and two female children were born to them. The spouses were living in Armed Reserve Quarters at Annathanapatti village, Salem. In the year 1994, differences arose between spouses and inspite of the advice by the police, the appellant and respondent could not reconcile their differences. The appellant filed F.C.O.P.No.35 of 1997 seeking divorce on the grounds of cruelty and desertion under Sections 13(1)(i-a) (i-b) of Hindu Marriage Act, 1955. Since the appellant did not conduct the case, F.C.O.P.No.35 of 1997 was earlier dismissed for default on 17.10.2000. As per the order in C.R.P.(NPD).No.1473 of 2002, dated 25.03.2004, the Family Court was directed to restore F.C.O.P.No.35 of 1997 to file and dispose the same within three months according to law on merits. On compliance of the conditional order, and on filing of memo by the appellant, F.C.O.P.No.35 of 2007 was restored on 21.06.2004. Even on that date, the petitioner's side was closed and respondent was examined as R.W.1 and the matter was posted for argument on 23.06.2004 and the petition came to be dismissed on 24.06.2004 on the ground that the appellant has not adduced any evidence and has not substantiated his contention.

(3.) THE learned trial Judge proceeded to take up the matter on the same day i.e., 21.06.2004 and is said to have insisted the appellant to adduce evidence on 21.06.2004 ?on the same day of restoration of F.C.O.P. Evidently, the appellant would not have come prepared for evidence on 21.06.2004. But the learned trial Judge proceeded to observe that "....... on 21.06.2004, as usual, the petitioner (appellant) was not ready to proceed with the enquiry in F.C.O.P. and hence the appellant (petitioner) side was closed....." On the same day - 21.06.2004, the respondent was examined as R.W.1 and her evidence was closed and the matter was posted on 23.6.2004 observing that the appellant was absent on 21.06.2004. THE learned trial Judge appears to have proceeded further and the impugned order came to be passed on 24.06.2004.