P O PETER Vs. SARA

JUDGEMENT

(1.) "Adherence to precedent should be the rule and not the exception" says Benjamin N. Cardozo, Associate Justice of the United States Supreme Court during 1932-38. "The labour of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.... We have had ten judges, of whom only seven sit at a time. It happens again and again, where the question is a close one, that a case which one week is decided one way might be decided another way the next if it were then heard for the first time. The situation would, however, be intolerable if the weekly changes in the composition of the court were accompanied by changes in its rulings. In such circumstances there is nothing to do except to stand by the errors of our brethren of the week before, whether we relish them or not." [The Nature of the Judicial Process-third Indian edition-2000]. In these days of frequent hesitation for the Judges to follow the track, these words of wisdom give us some good guidance. Not that there is no exception to this principle; in the words of the same author, "when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment." With this prelude, we shall now discuss some general principles of judicial decorum and legal propriety in the background of the cases referred by a learned single Judge, despite there being binding decisions.

(2.) In the Family Court Revision Petition, R.P.(FC) No. 196/05, a minor child represented by her mother filed a petition before the Family Court, Ernakulam for enhancement of maintenance. The petition was dismissed for default. Steps were taken under Order IX Rule 4 of the Code of Civil Procedure read with Section 7 of the Family Courts Act for restoration which was allowed by the order impugned in the revision petition. One of the main contentions taken in the revision petition is that in view of the Full Bench decision of this Court in Sathyabhama v. Ramachandran 1997 (2) KLT 503 (F.B.), wherein it was held that proceedings under Chapter IX of the Code of Criminal Procedure are criminal proceedings, the restoration petition is not maintainable. It is seen that without reference to the Full Bench decision, a learned Single Judge of this Court in Kunhimohammed v. Nafeesa , after referring to various decisions of other High Courts held that the proceedings under Section 125 of the Code of Criminal Procedure (Chapter IX) stands on a different footing and it is civil in nature. Therefore, the learned Single Judge in these cases felt that there is an 'important question of law to be decided by a Larger Bench'. The two relevant paragraphs in the reference order read as follows:

(3.) At the outset, it has to be noted that the issue considered by the learned Single Judge in Kunjimohammed's case (supra) had been considered by the Full Bench in Sathyabhama's case (supra) and it has been held by the Full Bench that,