Govindan vs Radhamany

K.T. Sankaran J.

The petitioner filed O.P.(HM) No.655 of 2011 on the file of the Family Court, Thodupuzha against the respondent for divorce u/s 13(1)(ib) of the Hindu Marriage Act. The respondent was ex- parte before the Family Court. Still, the Family Court dismissed the Original Petition on the ground that the marriage between the parties was not proved. The petitioner stated in the Original Petition before the Court below that the marriage between the petitioner and the respondent took place on 15.11.2003 and they resided together. In that wedlock two children were born. It was also stated that O.P.(HM) No.48 of 2008 was filed by the petitioner for divorce on the ground of cruelty. It was stated that as a result of several rounds of mediation talks, there was a re-union and a joint endorsement was made on O.P. No.48 of 2008 to that effect. The allegation is that the respondent deserted the petitioner without any cause or justification. It is also stated in the petition that the petitioner filed O.P.(HM) No.142 of 2009 and that petition was dismissed for default. The petitioner states that he also filed O.P. (G&W) No.510 of 2011 for appointing him as the guardian of the children.

Though notice was served on the respondent, she did not enter appearance before the Court below.

The affidavit of the petitioner and another witness were filed before the Family Court. However the Family Court held as follows:

The petitioner did not adduce any evidence to the effect that the marriage was solemnised as per Hindu religious rites by invoking Section 7 of the Hindu Marriage Act

It was also held that unless and until there is evidence to prove the validity of the marriage, Section 13 (1)(ib) of the Hindu Marriage Act cannot be invoked. The Family Court also took the view that the evidence of the witness that there was a legal marriage between the petitioner and the respondent as per Hindu Marriage Act cannot be accepted. The Court below failed to note that there was no appearance for the respondent and the averment that there was a legal marriage between the parties was not disputed. So long as there was no dispute with respect to the marriage, normally proof of marriage as such could not be insisted on. However, if the Court below thought that proof was required, an opportunity should have been afforded to the petitioner to prove the same. Since no issue with respect to the marriage was raised, the petitioner could not be blamed for not adducing evidence to prove the marriage. Dismissal of the petition on that ground was, therefore, unjust.

We, therefore, set aside the order passed by the Family Court, Thodupuzha and remand the case to the Family Court for fresh disposal in accordance with law. The petitioner would be entitled to adduce such other evidence as is relevant and to produce documents. The parties shall appear before the Court below on 5.9.2012.