The necessity for proving sufficient cause for non-appearance in family law matters is crucial, particularly in light of subsequent actions by the opposing party.

JUDGMENT

P.G. Ajithkumar, J.

The respondent in O.P.Nos.15 of 2016 and 294 of 2016 before the Family Court, Mavelikkara is the appellant. Those original petitions were filed by the respondent-wife. O.P.No.15 of 2016 was filed for realisation of money and return of gold ornaments. O.P.No.294 of 2016 was filed by the respondent seeking dissolution of marriage. Both original petitions were decreed exparte on 06.02.2019. The respondents filed R.P.No.542 of 2019 in O.P.No.15 of 2016 and R.P.No.544 of 2019 in O.P.No.294 of 2016 seeking to set aside the respective exparte decrees. As per the common order dated 14.01.2022, the Family Court, Mavelikkara dismissed both those petitions. The appellant challenges correctness and legality of the said common order in these appeals filed under Section 19 (1) of the Family Courts Act, 1984 .

2. After condoning the delay, these appeals were admitted.

3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

4. The appellant contended that he had a fall inside his house on 12.01.2019 compelling him to undergo ayurvedic treatment. His knee bone was dislocated and was suffering from acute pain. Therefore, he was not able to appear before the court, resulting in decreeing O.P.Nos.15 of 2016 and 294 of 2016 exparte.

5. The said contention was denied by the respondent.

Her contention was that on earlier occasions when these original petitions were posted for evidence, namely, 23.01.2019, 30.01.2019 and 05.02.2019 also the appellant did not appear before the court. The contention that the appellant fell down and had to undergo treatment was denied by the respondent.

6. The appellant gave evidence as PW1 and stated regarding his inability to appear before the court when it was taken up for evidence. He produced Ext.A1 stating to be a medical certificate issued from Kottakkal Aryavaidyasala, Anandavalleswaram Branch. The respondent deposed before the court denying the contentions of the appellant.

7. The Family Court, after considering depositions of both parties, held that in the absence of any evidence to prove contents of Ext.A1, the case put forward by the appellant could not be believed. The R.Ps. were accordingly dismissed. The Family Court also had taken note of the fact that the respondent remarried after the statutory period from the date of grant of the decree of divorce and therefore setting aside the decree of dissolution of marriage without sufficient cause will cause prejudice to the petitioner.

8. InPeeves Enterprises v. Muhammed Ashraf [ 2015 (3) KHC 981 ], a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure , the Court has to find out whether the erring party has made out sufficient cause for setting aside the ex parte decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous.

9. In the light of the law laid down in the aforesaid decision, the petition to set aside exparte decree filed in time is liable to be allowed ordinarily. Here, the evidence let in by the appellant is insufficient to prove that he really was prevented from appearing before the court when the original petitions were posted for evidence. Although the original petitions were posted repeatedly, the appellant or his counsel did not appear before the Family Court. It was in such circumstances, the exparte decrees were passed on 06.02.2019. The observation of the Family Court that the respondent contracted a second marriage, after waiting for the statutory period of appeal, is certainly a relevant consideration. For the fault of the appellant, the responden