Mat. Appeal No. 546 of 2009. Case: Dawood Vs Zubaida. High Court of Kerala (India)
| Case Number | Mat. Appeal No. 546 of 2009 |
| Counsel | Jawahar Jose, K. V. Sohan |
| Judges | R. Basant & M. C. Hari Rani, JJ. |
| Issue | Dissolution of Muslim Marriages Act, 1939 - Section 2; Code of Civil Procedure, 1908 - Order 9 Rule 13 |
| Citation | 2010 (3) KLT 89 |
| Judgement Date | June 10, 2010 |
| Court | High Court of Kerala (India) |
Judgment:
R. Basant, J.
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Can a recalcitrant litigant be permitted to take advantage of the alleged inadequacy in the service of notice when it is clear as day light that he had full knowledge of the proceedings and opportunity to participate in the same?
This question arises for consideration in this appeal.
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This appeal is preferred by the appellant through his power of attorney holder, his father, against dismissal of applications to condone the delay of 330 days and to set aside an ex parte order of divorce passed against him under Section 2 of the Dissolution of Muslim Marriages Act. 1939.
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To the skeletal facts first. The marriage took place on 18.7.2004. The wife claimed divorce under Section 2 of the Dissolution of Muslim Marriages Act in a petition filed in 2007 - as O.P. No.225 of 2007. The appellant/husband was employed abroad. Notice could not be personally served on him. Attempt was made to effect service by affixture at the place of permanent residence of the appellant in India. The notice was affixed. To that affixture, the father of the appellant, his present power of attorney holder, was a witness. The appellant did not appear even thereafter. It was, in these circumstances, that on 15.01.2008, an ex parte decree was passed against the appellant dissolving the marriage. Long later, after the lapse of about a year, the appellant filed an application to set aside the ex parte order. That application was preferred by him through his father/power of attorney holder. Along with that application, he filed another application to condone the delay of 330 days in filing such application.
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The applications were opposed. The father of the appellant examined himself as PW1. Ext.A1 photocopy of the passport of the appellant was marked. The court below on an anxious consideration of all the relevant circumstances came to the conclusion that the appellant had full knowledge of the proceedings and that he had deliberately not participated in the proceedings. The court took the view that the evidence tendered by PW1 is insufficient to come to a conclusion that the appellant was wrongly set ex parte. The long delay of 330 days was not sufficiently explained, opined the court. The court had before it the undisputed circumstance that the appellant had married again during the subsistence of the earlier marriage. The court further took the view that the appellant does not deserve a further opportunity to contest...
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O.P. (C) No. 602 of 2010 (O). Case: V. divakaran, S/o. Velayudhan Vs Thanka, W/o. Vasu and Ors.. High Court of Kerala (India)
...claim of plaintiff even it is shown that there is irregularity in service of summons. Division Bench of this Court in Dawood v. Zubaida 2010 (3) KLT 89 has held that when service was made by affixture at the residence of defendant who was abroad in the presence of his father, in the absence......
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O.P. (C) No. 602 of 2010 (O). Case: V. divakaran, S/o. Velayudhan Vs Thanka, W/o. Vasu and Ors.. High Court of Kerala (India)
...claim of plaintiff even it is shown that there is irregularity in service of summons. Division Bench of this Court in Dawood v. Zubaida 2010 (3) KLT 89 has held that when service was made by affixture at the residence of defendant who was abroad in the presence of his father, in the absence......