FINY SUSAN FRANCIS Vs. BINU PHILIP PAUL

JUDGEMENT

(1.) This original petition under Article 227 of the Constitution of India is filed seeking to quash Ext. P3 order of the Family Court, Thiruvalla, issued in IA No. 874/2015 in OP (Div) No. 976/2013. The case before the Family Court was instituted by the parties herein jointly, seeking divorce under Sec. 10A of the Indian Divorce Act, 1869. The original petition was instituted before the Family Court as early as in October 2013. The petitioner is working in Australia and the respondent is working in Kuwait. The petitioner herein is represented both before the Family Court and this court through her father, as Power of Attorney holder. Since both the parties are working abroad, they could not undergo counselling together before the Family Court on any date. It is stated that the petitioner had appeared before the counsellor of the Family court on 3 specific posting dates, on 26 -06 -2015, 30 -06 -2015 and 03 -07 -2015. But the respondent could not be present for counselling on those days. It is stated that, after expiry of the statutory period of 6 months, the Family Court had posted the case for appearance of the parties on 10 -08 -2015. On that date the parties have jointly filed IA No. 874/2015 requesting the Family Court to direct the Counsellor to conduct conselling through 'Video Conference'. But the Family Court had declined the request, through Ext. P3 order, stating that the respondent herein had never appeared for counselling. It is also mentioned that there is no materials available on record to show that the parties have undergone counselling in any other connected cases. The court below opined that the parties have deliberately failed to appear despite given repeated opportunities. It is observed that no proof has been produced with respect to identity of the parties. Finding that the counselling is mandatory in the case of this nature and also finding that no facilities are available in the court for conducting counselling through 'Video Conference', the petition was dismissed. It is aggrieved by Ext. P3 order this original petition is filed.

(2.) Heard; Counsel appearing on both sides.

(3.) Question as to whether the duty cast upon the Family Courts to make efforts for settlement through counselling is mandatory in cases of joint petitions for dissolution of marriage sought under Sec. 13B of the Hindu Marriage Act or under Sec. 10A of the Indian Divorce Act, was dealt with by this court in a decision rendered in OP (FC) No. 174/2015 (judgment dated 15 -09 -2015). Referring to Sec. 9(1) of the Family Courts Act this court observed that, settlement contemplated thereunder need not invariably be that of a re -union of the spouses. It is found that the wordings of Sec. 9(1) stipulates the court to endeavour for a settlement, "where it is possible to do so consistent with the nature and circumstances of the case". It is found that the assistance to be rendered or the persuasion to be made by the court is only to help the parties to arrive at a settlement, "in respect of the subject matter of the suit or proceedings". In a case where the marital relationship stands irretrievably broken and where the parties are living separated since for a period as stipulated in the statute, and when the parties have arrived at mutual decision to have the legal relationship dissolved through the court, the nature and circumstances would clearly indicate that parties have decided to have a judicial dissolution of the marital tie. In such cases any settlement with respect to the subject matter of the petition, need not invariably be that of a reunion of the spouses. But it can also be by way of a legal dissolution and thereby relieving the parties from the matrimonial tie. Therefore it is held that, "settlement" in the case of a joint petition for divorce need not always be by way of a reconciliation or re -union of the spouses.