The Family Court Judge, having briefly noticed the facts of the case, passed the impugned order. The relevant portion reads thus:
"When the prayer is to declare the marriage as null and void ab initio such a matter cannot be referred to mediation. The law cannot given in the hands of parties to decide by themselves as to what is a nullity and what is a fraud the plea that a party to a marriage certainly needs recording of evidence and does not depending upon then say of the party. Thus on facts it is not a proper case to exercise discretion to refer to the mediation. With regarding to the Ruling cited in para 18 it is held cases involving allegation of fraud coercion are not suitable for ADR process. In para No.19(ii) it is held that all case arises from disputes relating to matrimonial causes may be referred to but in para No.19(v) it is suitable clarified that the enumeration of suitable and categorization of cases is not intended to exhaustive or rigid. They are illustrative which can be subjected to just exceptions of the court exercising the discretion. Thus I am afraid to misapply the said ruling and refer the matter to mediation."
On a careful reading of the impugned order, it is clear that not only the relevant statutory provisions but also the settled position of law, by catena of decisions, including that of AFCONS INFRASTRUCTURE LTD., which was brought to its notice, has not been appreciated. Theimpugned order, extracted in para 2 supra, is diametrically opposite to the elucidation of law made in AFCONS INFRASTRUCTURE LTD.
23. S.89 CPC enables the Court to refer the subject matter of a case to either of the five Alternative Disputes Resolution processes shown therein. Except, Arbitration, the four other processes are non-adjudicatory dispute resolution processes, wherein, there is no decision, but there can only be a settlement by mutual consent of the parties.
24. In the instant case, the Family Court has not acted in a manner which is required of it, having regard to the jurisdiction vested on it, under the Act, particularly S.9, which casts a duty to assist and persuade the parties to arrive at a settlement by referring them to alternative dispute resolution processes of conciliation and / or mediation. The Family Court Judge has not shown a human approach which he is expected to have while dealing with the matrimonial dispute, since, the marriage is an institution of great social relevance. The impugned order is against the spirit of the Act and also settled position of law.
Karnataka High Court
Bhavana Ramaprasad vs Yadunandan Parthasarathy on 31 October, 2014
This writ petition was filed by the petitioner - wife, being aggrieved by the order dated 06.08.2014 passed in M.C.No.1163/2014, by the Prl. Judge, Family Court, Bangalore. With consent of learned counsel on both sides, the writ petition is taken up for final hearing.
2. Brief facts of the case are that, following the Hindu Vedic rites, the marriage of the petitioner and the respondent was solemnized on 27.06.2013, at Nijaguna Kalyana Mantapa, Basavanagudi, Bangalore. The marriage was also registered. The respondent - husband, through his power of attorney holder, filed on 11.03.2014, in the Family Court, Bangalore, M.C.No.1163/2014, under S.12(1)(c) of the Hindu Marriage Act, 1955 (for short, 'the H.M. Act') to pass a declaratory decree that the marriage is null and void ab-initio. Petitioner having entered appearance on 18.06.2014, filed a memo on 23.07.2014, to refer the case for mediation, by placing reliance on the decision in AFCONS INFRASTRUCTURE LTD. AND ANOTHER Vs. CHERIAN VARKEY CONSTRUCTION CO.(P) LTD. AND ORS., (2010) 8 SCC 24. The Family Court Judge, having briefly noticed the facts of the case, passed the impugned order. The relevant portion reads thus:
"When the prayer is to declare the marriage as null and void ab initio such a matter cannot be referred to mediation. The law cannot given in the hands of parties to decide by themselves as to what is a nullity and what is a fraud the plea that a party to a marriage certainly needs recording of evidence and does not depending upon then say of the party. Thus on facts it is not a proper case to exercise discretion to refer to the mediation. With regarding to the Ruling cited in para 18 it is held cases involving allegation of fraud coercion are not suitable for ADR process. In para No.19(ii) it is held that all case arises from disputes relating to matrimonial causes may be referred to but in para No.19(v) it is suitable clarified that the enumeration of suitable and categorization of cases is not intended to exhaustive or rigid. They are illustrative which can be subjected to just exceptions of the court exercising the discretion. Thus I am afraid to misapply the said ruling and refer the matter to mediation."
3. Sri A. Ravishankar, learned advocate, severely criticised the impugned order and argued that the Judge of the Family Court committed serious error in holding that the case is not fit for reference to mediation. He contended that the impugned order is a mindless order. He submitted that the clear statutory mandate and the object and purpose of S.9 of the Family Courts Act, 1984 (for short 'the Act'), has been negated, since there is virtual encouragement of litigation between the estranged spouses. He contended that the entire approach of the Judge, to the case, is in utter breach of the relevant statutory provisions. He submitted that the impugned order suffers not only from procedural irregularities, but also legal infirmities and is not a judicious order. Submission of the learned advocate is that the impugned order being in violation of the relevant provisions of the Act, H.M. Act & the Code of Civil Procedure (for short 'the Code'), is liable to be quashed.
4. Sri M.V.V. Ramana, learned advocate, on the other hand, strenuously supported the impugned order. He submitted that without even filing the counter and placing on record the defence, if any, to the case, it is not open to the petitioner, to demand as a matter of right, reference of the matter to mediation. He submitted that the conciliation or mediation, if found necessary, can take place at a later stage. He argued that the Family Court did not commit any error by refusing to refer the matter, at this stage of the case, to mediation. He submitted that with an intention to delay the decision of the case, a memo seeking reference to mediation was filed and that there being lack of bona fides, the impugned order was passed and the same is justified.
5. Having regard to the rival contentions, the point for consideration is, whether the Family Court has not acted in a manner, which is required of it, having regard to the jurisdiction vested on it, under the Family Courts Act, 1984 and the Hindu Marriage Act, 1955?
6. In the 59th report, the Law Commission, emphatically recommended that the court, in dealing with the disputes concerning family, ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts for an amicable settlement, before the commencement of trial. The same view was reiterated in the 230th Report of the Law Commission. Despite the amendment to the Code, it was felt that the matters concerning family disputes were not being dealt with a conciliatory approach. The State Governments were expected to set up the Courts and family disputes were to be dealt with by the specially constituted Courts.
7. The most important feature, the Preamble of 'the Act' is, "establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith". The preamble sufficiently indicates the jurisdiction that is vested in the Family Court, under the provisions of the Act, which was enacted for adopting a human approach to the settlement of family disputes and achieving socially desirable results. The primary purpose of the Family Court is to promote conciliation and amicably settle the matters relating to matrimonial and family disputes, rather than adjudicate on the same.
8. S.3 of the Act enables the establishment of Family Court by issue of a Notification by the State Government after consultation with the High Court. S.4 enables the State Government with the concurrence of the High Court, to appoint Judge to Family Court. S.6 is with regard to providing Counsellors, Officers and other employees to Family Courts. S.7 is with regard to the jurisdiction of Family Court. S.8 is with regard to the exclusion of jurisdiction and pending proceedings. S.9 refers to the duty of Family Court to assist and persuade the parties to come to a settlement. S.10 makes the provision of the Code applicable to the proceedings before a Family Court. S.11 is with regard to the proceedings to be held in camera, if the Court so desires and shall be held so, if either party so desires. S.12 is with regard to the assistance of medical and welfare experts. S.13 is with regard to the right to legal representation. Remaining provisions of the Act, are not relevant for deciding this petition.
9. The statutory provisions to be kept in view to decide this petition are the following:
(i) S.9 of the Family Courts Act, 1984 which reads as follows:
"9. Duty of Family Court to make efforts for settlement.- (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn theproceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings."
(ii) Rule 7 of the Family Courts (Karnataka) Rules 1987, which reads as follows:
"Rule 7. Reconciliation.- (1) The Court shall make every effort for brining about reconciliation or settlement between the parties in the first instance in every case where it is possible to do so consistent with the nature and circumstances of the case in such manner as deem fit, with the help of counsellors nominated by the Court"
(iii) S. 89 and Order XXXII-A of CPC, which read as follows: "S.89. Settlement of disputes outside the Court.- (1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for-
(a) arbitration;
(b) conciliation
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred-
(a) to (c) ******
(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.
*** *** ***Order XXXII-A
SUITS RELATING TO MATTERS CONCERNING THE FAMILY 1 . Application of the Order.-- (1) The provisions of this order shall apply to suits or proceedings relating to matters concerning the family.
(2) ***** (3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.
2 . *****
3. Duty of Court to make efforts for settlement.-- (1) In every suit or proceedings to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.
4. Assistance of welfare expert.-- In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by Rule 3 or this Order.
5. *****
6. *****
(iv) S.23 of The Hindu Marriage Act, 1955 which reads thus:
"S.23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that - ***** (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:
[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.] (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report."
(underlined for emphasis)
10. In BALWINDER KAUR Vs. HARDEEP SINGH, (1997) 11 SCC 701, Apex Court has held as follows:
"15..... A duty is also cast on the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Under sub-section (3) of Section 23 of the Act, the court can even refer the matter to any person named by the parties for the purpose of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all courts trying matrimonial matters."
(Italicised for emphasis)
11. In JAGRAJ SINGH Vs. BIRPAL KAUR, (2007) 2 SCC 564, Apex Court has held as follows:
"26. From the above case-law, in our judgment, it is clear that a court is expected, nay, bound, to make all attempts and endeavours of reconciliation. To us, sub-section (2) of Section 23 is a salutary provision exhibiting the intention of Parliament requiring the Court "in the first instance" to make every endeavour to bring about a reconciliation between the parties. If in the light of the above intention and paramount consideration of the legislature in enacting such provision, an order is passed by a matrimonial court asking a party to the proceeding (husband or wife) to remain personally present, it cannot successfully be contended that the court has no such power and in case a party to a proceeding does not remain present, at the most, the court can proceed to decide the case ex parte against him/her. Upholding of such argument would virtually make the benevolent provision nugatory, ineffective and unworkable, defeating the laudable object of reconciliation in matrimonial disputes. The contention of the learned counsel for the appellant, therefore, cannot be upheld."
(underlined for emphasis)
12. In GAURAV NAGPAL Vs. SUMEDHA NAGPAL, (2009) 1 SCC 42, with regard to the duty of Court to bring about conciliation in divorce and judicial separation proceedings, Apex Court made the following observations:
"58. .....It is a disturbing phenomenon that large number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 (in short "the Marriage Act") have led to such a situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does not make the section invalid. Actions may be bad, but not the section. The provisions relating to divorce categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Effort should be to bring about conciliation to bridge the communication gap which leads to such undesirable proceedings. People rushing to courts for breaking up of marriage should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving marriage and not breaking it."
(Italicised for emphasis)
13. In H.S.UMA Vs. G.K. SUMANTH ARYA, ILR 1993 KAR 1774, with regard to the duty of the Family Court, with reference to Sub-section(1) of S.9 of the Act and Sub- section(2) of S.23 of the H.M. Act, to make every effort for reconciliation, with reference to the word "every endeavour", it was held as follows:
"7. ........It may be noticed that in contra distinction to just the word "endeavour" mentioned in Section 9(1) of the Family Courts Act, in Section 23(2), a duty is cast on the Court in the first instance to make every endeavour. The use of the word "every" before the word "endeavour" in this Section assumes great importance in respect of the duty cast on the Court dealing with a proceeding under the Hindu Marriage Act to bring about reconciliation.
**** **** ****
9. .......In this case we are entirely in agreement with the contention advanced on behalf of the wife that the impugned order is liable to be set aside solely on the ground that the solemn duty cast on the lower Court under the Sections referred to already has not been discharged by it."
(Italicised for emphasis)
14. In SMT. PADMAVATHI Vs. SRI M. SURESH BALLAL, ILR 2012 KAR 3926, it was emphasized as follows:
" 23.....Matrimonial matters must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal rights have to be handled carefully. Sub-section (2) of S.23 is a salutary provision exhibiting the intention of Parliament requiring court 'in the first instance' to make every endeavour to bring about a reconciliation between the parties. Where the estrangement between the parties to the marriage might seem to be acute, it is the duty of the court to make every endeavour to bring the parties to reconciliation. The failure to make such an endeavour deprives the court of the jurisdiction to try and decide the case. If no endeavour had been made by the court, it will undoubtedly be a serious omission which has to be taken into account.
**** **** ****
25...... Then it should further indicate that he made efforts to bring about further settlement. It is only when his efforts to reconcile between the husband and wife fails, he gets jurisdiction to proceed to pass an order of divorce.
(Italicised for emphasis)
15. S.9 of the Act, requires the Family Court, to endeavour, in the first instance, where it is possible to do so, consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the proceeding and for that purpose, the Family Court may follow the procedure under Rule 7 of Karnataka Family Courts (Procedure) Rules, 1997, framed to give effect to S.9.
16. A matrimonial case is not like other cases before a Court. Annulment of marriage, not only affects the parties and their families, but also the society, which feels its reverberations. Endeavour should always be made on preserving the institution of marriage, which is the requirement of law, particularly keeping in view the provisions made under S.9 of the Act and Sub-section (2) of S.23 of the H.M. Act. In view of the said provisions, it is obligatory on the part of Family Court, to endeavour, in the first instance, to effect a reconciliation or settlement between the parties to the family dispute.
17. In RELIANCE AIRPORT DEVELOPERS (P) LTD. VS. AIRPORTS AUTHORITY OF INDIA AND OTHERS, 2006(10) SCC 1, in the matter of exercising discretion and the parameters to be followed, Apex Court has held as follows:
"28. "Discretion" when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular.
**** **** ****
31. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care, therefore, where the legislature concedes discretion it also imposes a heavy responsibility.
**** **** ****
33. If a certain latitude or liberty accorded by statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review.
34. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent judges in somewhat different forms of words but with substantial identity. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (per Willes J. in Lee v. Bude Rly. Co., (1871)6 CP 576 and in Morgan v. Morgan, 1869 1 P & M 644)."
(underlined for emphasis)
18. The impugned order, reproduced in para 2 supra, shows that the Family Court Judge has proceeded, as if, he has discretion, in the matter of referring or otherwise, of a case to mediation. There is absolute misconception in saying so. The statutory provisions, extracted in para 9 supra, cast duty on the Court, in the first instance, to make every efforts for bringing about reconciliation or settlement between the parties. There is no discretion conferred, to bypass the said statutory provisions, which are mandatory.
19. The Judge of the Family Court has failed to notice that he was seized of a matrimonial dispute between the estranged spouses. The paramount duty of the Court should be to restore peace amongst the parties. To achieve the said object, the Court should encourage and persuade the parties to reconcile, by referring them to conciliation / mediation. Instead, the observations made in the impugned order, extracted in para 2 supra, would push the parties further into conflict and litigate in the matter. In matrimonial cases, only as a last resort, the Court ought to decide the case on its merit i.e., when all the efforts made by the Court by encouraging and persuading the parties to reconcile fail.
20. In AFCONS INFRASTRUCTURE (supra), it has been observed that all cases arising from strained or soured relationships including disputes relating to matrimonial causes, maintenance, custody of children, disputes relating to partition / division among family members / coparceners / co-owners are normally suitable for reference to ADR process. It has been observed that the enumeration of 'suitable' and 'unsuitable' categorization of cases is not intended to be 'exhaustive or rigid' and they are 'illustrative' which can be subject to just exceptions or additions by the court exercising its jurisdiction under S.89 read with Rule 1A of Order X CPC requiring the Court to direct the parties to opt for any of the five alternative dispute resolution processes. It has been further observed that the appropriate stage for considering a reference to ADR process in a civil suit is on completion of pleadings whereas in matrimonial disputes it is better to refer the parties to ADR on completion of service of notice and before respondent submits his / her pleadings.
21. In K. SRINIVAS RAO Vs. D.A. DEEPA, (2013) 5 SCC 226, while touching upon an issue, in the interests of victims of matrimonial disputes, Apex Court has observed as follows:
"31. .........In matrimonial disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties see reason. In this case, if at the earliest stage, before the Respondent-wife filed the complaint making indecent allegation against her mother-in-law, she were to be counseled by an independent and sensible elder or if the parties were sent to a mediation centre or if they had access to a pre- litigation clinic, perhaps the bitterness would not have escalated. Things wouldnot have come to such a pass if, at the earliest, somebody had mediated between the two.......
32. Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act enjoins upon the Family Court to make efforts to settle the matrimonial disputes and in these efforts, Family Courts are assisted by Counsellors. Even if the Counsellors fail in their efforts, the Family Courts should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties. Being trained in the skill of mediation, they produce good results."
(Italicised for emphasis)
22. On a careful reading of the impugned order, it is clear that not only the relevant statutory provisions but also the settled position of law, by catena of decisions, including that of AFCONS INFRASTRUCTURE LTD., which was brought to its notice, has not been appreciated. Theimpugned order, extracted in para 2 supra, is diametrically opposite to the elucidation of law made in AFCONS INFRASTRUCTURE LTD.
23. S.89 CPC enables the Court to refer the subject matter of a case to either of the five Alternative Disputes Resolution processes shown therein. Except, Arbitration, the four other processes are non-adjudicatory dispute resolution processes, wherein, there is no decision, but there can only be a settlement by mutual consent of the parties.
24. In the instant case, the Family Court has not acted in a manner which is required of it, having regard to the jurisdiction vested on it, under the Act, particularly S.9, which casts a duty to assist and persuade the parties to arrive at a settlement by referring them to alternative dispute resolution processes of conciliation and / or mediation. The Family Court Judge has not shown a human approach which he is expected to have while dealing with the matrimonial dispute, since, the marriage is an institution of great social relevance. The impugned order is against the spirit of the Act and also settled position of law.
25. The number of litigations being on rise, for small and trivial matters, people approach the Courts. The judicial system is overburdened, causing delay in adjudication of the disputes. Mediation Centres, Arbitration and Conciliation Centres, were opened, by keeping in view S.89 of CPC, to ease the burden of the Courts. Earnest efforts have to be made to resolve the disputes amongst the litigants by having recourse to alternative dispute resolution processes, more particularly the matrimonial dispute(s), by referring them to Mediation Centre(s).
In view of the foregoing, Family Court having committed the breach, the impugned order being illegal, is quashed. The Family Court shall refer M.C.No.1163/2014, to the Bangalore Mediation Centre and take up the case for consideration, after receiving report from the Mediation Centre. Ordered accordingly.
Registry shall send a copy of this order, for guidance, to all the Family Courts in the State.
A copy of this Order be sent to the Director, Bangalore Mediation Centre, who shall circulate copies of the same amongst all the Mediation Centres in the State, for information.
Sd/-
JUDGE sac*
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