T. Sheeja v. C. P. Balakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** **Mat.Appeal.No. 531 of 2014** **AGAINST THE JUDGMENT AND DECREE DATED 28.02.2014 IN OP 105/2013 of FAMILY COURT, THALASSERY** ## **APPELLANT/RESPONDENT:** **T.SHEEJA AGED 34 YEARS D/O.RAGHAVAN, SHEENA NIVAS, THILANUR, P.O.THAZHE CHOVVA, KANNUR DISTRICT.** **BY ADV. SRI. P.U. SHAILAJAN** ## **RESPONDENT/PETITIONER:** **C.P BALAKRISHNAN S/O.KUNHIRAMAN, SUKANYA NIVAS, PAZHASSI AMSOM, KAYANI DESOM, P.O.KAYANI, PIN-670702.** **BY ADV. SRI. R. SURENDRAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30.08.2018, THE COURT ON 04.09.2018 DELIVERED THE FOLLOWING:** Mat.Appeal No.531/2014 2 ## **"CR"** ## **JUDGMENT** ## **R.Narayana Pisharadi, J** The appellant is the wife and the respondent is the husband. The appeal is filed by the wife, challenging the decree of divorce passed against her by the Family Court, Thalassery. 2. The husband filed O.P.No.105/2013 against the wife in the Family Court for granting a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, 1955. The appellant entered appearance in the case before the lower court but she did not appear for mediation. She also did not file any counter statement in the case. Thereupon, the lower court recorded the evidence of the respondent and granted a decree of divorce dissolving the marriage between the appellant and the respondent. 3. We have heard learned counsel for the appellant Mat.Appeal No.531/2014 3 as well as the respondent. 4. The lower court has briefly narrated the case of the respondent/petitioner in the judgment. The lower court further proceeded to grant a decree of divorce in the case stating as follows: " _The evidence of PW1 remains unchallenged._ _In the result, the O.P is allowed with cost. It is declared that the marriage between the petitioner and the respondent which was solemnised on 22.11.2002 is hereby dissolved."_ 5. The judgment of the lower court does not reveal that the appellant was set ex parte in the case. However, we have no doubt with regard to the fact that the impugned judgment is an ex parte judgment. 6. The respondent had sought a decree of divorce against the appellant under Section 13(1)(iii) of the Hindu Marriage Act, 1955 on the ground that she was suffering from mental disorder. However, the judgment of the trial court does not contain any finding to the effect that the Mat.Appeal No.531/2014 4 appellant was suffering from any mental disorder. The trial court has only mentioned that the evidence of PW1 remains unchallenged. The trial court has not stated what is the effect of such unchallenged evidence. The trial court has also not stated any reason for granting a decree of divorce in favour of the respondent. 7. Order VIII Rule 10 of the Code of Civil Procedue, 1908 (hereinafter referred to as 'the Code') reads as follows: _“10. Procedure when party fails to present written statement called for by Court -- Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up."_ 8. The Apex Court has interpreted the aforesaid provision in **Balraj Taneja v. Sunil Madan : AIR 1999 SC 3381** and held that the Court shall not act blindly upon Mat.Appeal No.531/2014 5 the admission of a fact made by the defendant in his written statement and the court shall not proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint. Before passing the judgment against the defendant the court must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is only when the court is satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed written statement. 9. In the absence of denial of plaint averments, the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. Mat.Appeal No.531/2014 6 However, in a case in which the defendant is set ex parte, the trial court shall scrutinize the available pleadings and documents, consider the evidence adduced and decide whether the claim made by the plaintiff is proved (See **Ramesh Chand Ardawatiya v. Anil Panjwani : AIR 2003 SC 2508** ). 10. Even in a case where the defendant is set ex parte, the judgment shall reflect the facts of the case and the controversy involved and tried to be settled by the court. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit shall be reflected clearly in the judgment. Even in a case where the written statement is not filed by the defendant, the court must be satisfied that there is no fact which need to be proved inspite of deemed admission by the defendant. The court must give reasons for passing such judgment, however, short it be. By reading the judgment, a party should be able to understand what were the facts and circumstances on the basis of which the court proceeded Mat.Appeal No.531/2014 7 and what is the reason for decreeing the suit (See **Shantilal Gulabchand Mutha v. Tata Engineering Locomotive Company : (2013) 4 SCC 396** ). 11. Absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff’s claim. The factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. The court is duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted (See **Maya Devi v. Lalta Prasad : AIR 2014 SC 1356** ). 12. In the instant case, the appellant has been able to show that the ex parte decree passed by the Family Court ex facie suffers from non-application of mind. The respondent had sought a decree of divorce against the appellant under Section 13 (1) (iii) of the Hidu Marriage Act, 1955 on the ground of mental disorder. It is significant that the respondent did not adduce any medical evidence to prove that the appellant was suffering from any mental Mat.Appeal No.531/2014 8 disorder. The impugned judgment does not even contain a sentence that the respondent/petitioner has proved that the appellant was suffering from any mental disorder. The trial court has only stated that the evidence of the respondent/petitioner remained unchallenged. The trial court has not even stated what is the effect of such unchallenged evidence. The trial court has not briefly discussed the evidence. The impugned judgment does not contain even a single sentence regarding the reason for granting a decree of divorce. 13. In the aforesaid circumstances, we find that the impugned judgment cannot be sustained. The judgment and decree passed by the Family Court, Thalassery in O.P.No.105/2013 are set aside and the case is remanded to the trial court for fresh disposal. The parties shall appear before the trial court on 01.10.2018. The appellant is at liberty to file written statement in the case within a period of two weeks from that date and thereafter, the trial court shall proceed with the trial of the case in accordance with Mat.Appeal No.531/2014 9 law. As the matter is very old, the trial court shall dispose of the case expeditiously, at any rate within a period of six months from today. The appeal is disposed of accordingly. No costs in the appeal. (sd/-) **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/03/09/2018 True Copy P.S to Judge