BLESSY VARGHESE EDATTUKARAN Vs. SONU

JUDGEMENT

(1.) An intrinsic legal question arises in the above case 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 marriages filed either under Section 13B of the Hindu Marriage Act, 1955 or under Section 10A of Indian Divorce Act, 1869.

(2.) The petitioner herein is the wife of the respondent. They jointly filed OP.No.50/2015 before the Family court, Irinjalakuda seeking dissolution of the marriage, under Section 10A of the Indian Divorce Act, 1869. At that time of filing the original petition the respondent/husband was employed abroad. Shortly after filing of the case the petitioner/wife also got employment as a Nurse in Kuwait. Since the petitioner had to join duty at Kuwait on or before 29.04.2015, she filed an application before the Family court to advance the posting of the case, along with another interim application seeking permission to allow her to undergo counselling independently. Ext.P2 is the application filed for permitting independent counselling, as IA.No.810/2015. The respondent has not raised any objection to the said application. But the learned judge had declined the request through Ext.P3 order, observing that going by Rules 22, 24 and 26 of the Family Court(Kerala) Rules, 1989 (hereinafter referred to as 'the Rules' for short), the 'Parties' shall attend the counselling 'together'. It is found that the purpose of the counselling is to help the parties for arriving at a reconciliation and in such process the presence of both the parties are essential. Having observed that the relief sought for in the interim application to have separate counselling is against the spirit of the Rules, the interim application was dismissed. It is challenging the said order, this original petition is filed by invoking the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India.

(3.) Section 9 of the Family Courts Act mandates a duty on the court to make an endeavour to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceedings. The section mandates the Family Court to adopt any requisite procedure for the above said purpose, subject to the Rules made on that behalf by the High Court. The 'word' shall contained in Section 9(1) would indicate that it is mandatory on the part of the Family Court to make an endeavour to assist and persuade the parties in arriving at a settlement. Sub section (2) of Section 9 provides liberty to the Family court to adjourn any proceedings before that court for such period as it think fit to enable the attempts of such settlement, if it appears to that court at any stage of the proceedings that there is a reasonable possibility of settlement between the parties. The procedure to be followed with respect to the endeavour to assist and persuade the parties in arriving at a settlement, is prescribed under the relevant Rules. Rule 22 provides that the Family court can direct the parties to consult any specified counsellor for the purpose of counselling. If any such direction is issued by the court, then the counsellor appointed is bound to fix the time and date for counselling, under Rule 24. On such date the parties are bound to consult the counsellor for the purpose of counselling. The procedure to be followed by the counsellor if one of the parties fails to attend the counselling is contemplated under Rule 25. All the above said provisions would indicate that it is mandatory on the part of the Family court to make an endeavour to settle the issues involved in any suit or proceedings before that court by assisting or persuading the parties in arriving at a settlement through appropriate procedure contemplated for such counselling.