While considering the issue, this Court is of
the considered opinion that, the intention of the
legislature contained in Section 9(1) of the Family Court
Act does not insist upon the Family court to direct the
parties to undergo the process of counselling invariably in
all the cases as a mandatory requirement. The wordings
contained in Section 9(1), "where it is possible to do so
consistent with the nature and the circumstances of case"
would clearly indicate that the endeavour by the Court to
assist and to persuade the parties in arriving at a
settlement is required only if it is possible to do so in
consistent with the nature and circumstances of the case.
It is intended only to facilitate the parties to arrive at a
settlement "in respect of the subject matter of the suit or
the considered opinion that, the intention of the
legislature contained in Section 9(1) of the Family Court
Act does not insist upon the Family court to direct the
parties to undergo the process of counselling invariably in
all the cases as a mandatory requirement. The wordings
contained in Section 9(1), "where it is possible to do so
consistent with the nature and the circumstances of case"
would clearly indicate that the endeavour by the Court to
assist and to persuade the parties in arriving at a
settlement is required only if it is possible to do so in
consistent with the nature and circumstances of the case.
It is intended only to facilitate the parties to arrive at a
settlement "in respect of the subject matter of the suit or
proceedings". In a case of joint application filed on
mutual consent seeking dissolution of the marriage, it is
evident that the parties have already arrived at a
settlement with respect to the issues relating to the
matrimonial discord and regarding continuance of the
marital relationship. It is on the basis of such a
settlement that the joint petition is filed. Therefore there
is no necessity existing in the circumstances of a case to
persuading the parties to arrive at a settlement in respect
of the subject matter of the suit or proceedings, because,
as found above, the settlement in all the matrimonial
cases need not invariably be that of a reconciliation or
reunion of the parties to the marriage. But it can also be
by facilitating a peaceful judicial separation by way of
dissolution of the legal relationship. Hence we are of the
considered opinion that the endeavour which should be
made by the Family court under the mandate of Section
9(1) need not be followed as a compulsory procedure in
the case of a joint application for divorce on mutual
consent. If the court is satisfied about the genuineness of
the application, it can definitely dispense with the
procedure of counselling in such cases. However, the
insistence for the statutory waiting period and the
subsequent ascertainment of the attitude of the parties
with respect to their determination of getting the marital
relationship dissolved, is totally mandatory and need to be
strictly adhered. However, we make it clear that the
above finding will not preclude the Family Court from
making an endeavour for a settlement of reunion of the
spouses, if it is found that there is a chance for such a
settlement.the application, it can definitely dispense with the
procedure of counselling in such cases. However, the
insistence for the statutory waiting period and the
subsequent ascertainment of the attitude of the parties
with respect to their determination of getting the marital
relationship dissolved, is totally mandatory and need to be
strictly adhered. However, we make it clear that the
above finding will not preclude the Family Court from
making an endeavour for a settlement of reunion of the
spouses, if it is found that there is a chance for such a
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
OP (FC).No. 174 of 2015 (R)
----------------------------
BLESSY VARGHESE EDATTUKARAN,
Vs
SONU, A
Citation: 2015 (5) KHC 458, 2015(4)KLT572
Decided On:
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.
4. At the first instance, question posed is as to
whether the settlement need invariably be for a reunion of
the spouses. In this regard the wordings of Section 9(1)
assumes importance. It stipulates the court to endeavour
for a settlement, "where it is possible to do so consistent
with the nature and circumstances of the case". The
assistance to be rendered or persuasion to be made by
the court is 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 stand irretrievably
broken and the parties are living separated for a long
period, the extent of which is beyond the period stipulated
in the statute, and when the parties have taken a mutual
decision to have the legal relationship dissolved through a
verdict of the court, the nature and circumstances would
clearly indicate that the parties are desiring for a
dissolution of the marital tie. In such case the settlement
with respect to the subject matter of the petition, need
not invariably be that of a reunion of the spouses. But is
can also be by way of facilitating an easy legal dissolution
and thereby releaving the parties from the matrimony tie
to seek their future life with suitable other partners.
Therefore, it cannot be found that the 'settlement' in a
case of joint petition for divorce need not always be that
of a reconciliation or reunion of the spouses.
5. In view of the above finding, the further
question arising is to whether it is mandatory on the part
of the Family court to insist the parties to undergo
counselling, when the suit or proceedings is instituted
jointly based on a mutual consent for the dissolution of
the marriages, either under Section 13B of the Hindu
Marriage Act, 1955 or under Section 10A of the Indian
Divorce Act, 1869. Evidently, a joint petition for
dissolution of the marriage can be filed only when the
marital relationship stands irretrievably broken and only
when the spouses have arrived at a settlement or an
understanding to set apart from the marital tie. The
legislature in its wisdom had prescribed a specific waiting
period of 6 months, after filing of such petitions, for
allowing such petitions. It is pertinent to note that the
statute insists upon certain conditions for entitling the
parties to file such application on mutual consent. The
spouses should have lived separately for a specific period
and that a minimum specified period should have lapsed
since the date of the marriage. Further the statutory
insistence is that, after expiry of the waiting period from
the date of filing of such application, the court should
make an enquiry with respect to the attitude of the parties
in adhering to their desire for the dissolution of the
marriage. The court should at that stage make sure that
the parties are sticking on to their earlier decision to have
the marital relationship dissolved. It is now trite law that
such waiting period insisted by the statute could not be
dispensed with, but for exceptional circumstances
invoking power vested on the honourable Supreme Court
under Article 142 of the Constitution of India. The parties
to such joint petition, after the lapse of the waiting period,
O.P.(FC).No.174 of 2015 8
has to convince the court that they still stand by their
decision to have the dissolution of the marital
relationship, on the basis of the mutual understanding or
agreement.
6. This Court in its decision in Saji T.
Varghese v. State of Kerala [2010 (3) KLT 804] held
that, personal presence of the spouses in such application
for dissolution of marriage by mutual consent need not
unnecessarily be insisted at the stage of its second
motion, on the expiry of the waiting period. If it is felt that
it is difficult for the parties to personally appear before the
court, the parties can make the second motion through
their counsel by submitting chief affidavit in order to state
their case on oath, is the finding. But the question
remains as to whether the parties to a joint petition for
divorce filed on mutual consent need to be insisted to
undergo the process of counselling, as a mandatory
procedure in every case. In Saji T. Varghese's case
(supra) a Bench of this Court observed that, a ritualistic
insistence on personal presence of the parties for
conciliation/counselling need not be made by a court in a
joint application for divorce on the ground of mutual
consent, if the court is otherwise satisfied about the
genuineness of the application.
7. While considering the issue, this Court is of
the considered opinion that, the intention of the
legislature contained in Section 9(1) of the Family Court
Act does not insist upon the Family court to direct the
parties to undergo the process of counselling invariably in
all the cases as a mandatory requirement. The wordings
contained in Section 9(1), "where it is possible to do so
consistent with the nature and the circumstances of case"
would clearly indicate that the endeavour by the Court to
assist and to persuade the parties in arriving at a
settlement is required only if it is possible to do so in
consistent with the nature and circumstances of the case.
It is intended only to facilitate the parties to arrive at a
settlement "in respect of the subject matter of the suit or
proceedings". In a case of joint application filed on
mutual consent seeking dissolution of the marriage, it is
evident that the parties have already arrived at a
settlement with respect to the issues relating to the
matrimonial discord and regarding continuance of the
marital relationship. It is on the basis of such a
settlement that the joint petition is filed. Therefore there
is no necessity existing in the circumstances of a case to
persuading the parties to arrive at a settlement in respect
of the subject matter of the suit or proceedings, because,
as found above, the settlement in all the matrimonial
cases need not invariably be that of a reconciliation or
reunion of the parties to the marriage. But it can also be
by facilitating a peaceful judicial separation by way of
dissolution of the legal relationship. Hence we are of the
considered opinion that the endeavour which should be
made by the Family court under the mandate of Section
9(1) need not be followed as a compulsory procedure in
the case of a joint application for divorce on mutual
consent. If the court is satisfied about the genuineness of
the application, it can definitely dispense with the
procedure of counselling in such cases. However, the
insistence for the statutory waiting period and the
subsequent ascertainment of the attitude of the parties
with respect to their determination of getting the marital
relationship dissolved, is totally mandatory and need to be
strictly adhered. However, we make it clear that the
above finding will not preclude the Family Court from
making an endeavour for a settlement of reunion of the
spouses, if it is found that there is a chance for such a
settlement.
8. We feel that a clarification in the procedure
to be adopted by the Family Courts need to be illustrated
in view of the findings contained in the foregoing
paragraphs. The Family courts should follow the normal
procedure of referring the case for counselling in all
matters of joint applications for dissolution filed either
under Section 13B of the Hindu Marriage Act or under
Section 10A of the Indian Divorce Act. The attempt in the
process of counselling should always be intended to
persuading the parties for a reconciliation or reunion. But
in cases where any one of the parties or both the parties
makes an application to the court to dispense with the
procedure of counselling due to their non-availability in
the country or due to any other valid reasons
incapacitating their personal appearance, then it will be
left open to the Family courts to consider such
applications and to allow the exemption from undergoing
counselling with respect to either one of the parties or to
both the parties, as the case may be. In such situation it
is also not necessary in all the cases to insist upon both
the parties to have counselling 'together'. It is left open to
the Family Courts to take appropriate decisions in each
case, taking note of the genuineness of such applications.
Possibility for conducting the counselling through "video
conferencing" using computer/laptop or mobile phones
having requisite facility also can be explored and
permitted.
Based on the findings contained herein above,
we are inclined to interfere with Ext.P3 order, which is
impugned in the case at hand. The original petition is
allowed and Ext.P3 is hereby quashed. The Family Court,
Irinjalakkuda is directed to dispose of OP.NO.50/2015 on
the expiry of the statutory waiting period of 6 months, in
accordance with law, by following the statutory procedure.
It is submitted by learned counsel appearing on both sides
that the statutory waiting period is over by this time.
Hence the Family court is directed to dispose of the case
at the earliest possible.
Sd/-
C.K.ABDUL REHIM,
JUDGE
Sd/-
MARY JOSEPH,
JUDGE
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