Wednesday, 2 December 2015

Whether it is mandatory to conduct counselling in family court if one party is unable to remain present in court for counselling?

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.
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                               PRESENT:

                        THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
                                                      &
                         THE HONOURABLE MRS. JUSTICE MARY JOSEPH

             TUESDAY,THE 15TH DAY OF SEPTEMBER 2015/
                                     OP (FC).No. 174 of 2015 (R)
                                         ----------------------------

            BLESSY VARGHESE EDATTUKARAN, 
Vs

            SONU, A


        

         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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