High Court Kerala High Court

Renjith P.S vs Kavery S .Thampi on 9 November, 2010

Kerala High Court
Renjith P.S vs Kavery S .Thampi on 9 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC).No. 632 of 2010(R)



1. RENJITH P.S.
                      ...  Petitioner

                        Vs

1. KAVERY S .THAMPI
                       ...       Respondent

                For Petitioner  :SRI.T.A.SHAJI

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :09/11/2010

 O R D E R
                            R. BASANT &
                   K. SURENDRA MOHAN, JJ.
             -------------------------------------------------
                   O.P.(FC) No.632 of 2010-R
             -------------------------------------------------
          Dated this the 9th day of November, 2010

                             JUDGMENT

Basant,J.

The petitioners are the respondents in O.P.No.987/10

pending before the Family Court, Kottayam. That O.P. is filed

by the respondent/wife against the petitioners herein who are

her husband and mother-in-law. Amounts were claimed from

the petitioners herein by the respondent in that O.P. Along with

the petition, there was an application for interim attachment.

Exts.P2 and P3 orders are orders passed in that I.A. Attachment

has been effected. Security has not been furnished. In that

context in I.A.No.2150/10 (that is the petition for attachment), it

was directed that the petitioners must file their objections, if

any, on 11/11/10.

2. At this juncture the petitioners have rushed to this

O.P.(FC) No.632 of 2010 -: 2 :-

Court. What is their grievance? The learned counsel for the

petitioners submits that the Family Court is not strictly

following the procedure prescribed under the relevant rules.

The Family Court is obliged to refer the parties for counselling.

That step is not followed. There is frog leaping of that step and

the court has directly gone to the stage of recording evidence.

The learned counsel for the petitioners submits that this

procedure adopted by the court below is wrong and erroneous.

There may be a direction to the Family Court to follow the

procedure prescribed by law and not to proceed to the stage of

evidence before an attempt is made for counselling and

harmonious settlement of the dispute.

3. What is there to show that the court below has omitted

to take any steps for reference of the parties for counselling?

Except Exts.P2 and P3 no other materials are placed. Exts.P2

and P3 are orders passed in I.A.No.2150/10 which admittedly is

an application under Order 38 Rule 5 CPC for attachment of

property prior to judgment. The mere fact that the court below

has taken steps in I.A.No.2150/10 and has passed Exts.P2 and

P3 orders in that application cannot persuade this Court to

jump to the conclusion that the Family Court is not following

the requisite steps to refer the parties for counselling in

accordance with the rules. We shall assume for the sake of

O.P.(FC) No.632 of 2010 -: 3 :-

arguments that such an indiscretion is being committed usually

in all cases by the Family Court. The petitioners, if they are

desirous that the proper procedure ought to be followed can

certainly make an application to the Family Court reminding

the Family Court of its duty to refer the parties for counselling

and the omission committed by the court in not resorting to

that step. We note that the Presiding Officer has been

manning that court for a fairly long period of time and it would

idle for us to assume lightly that the said court is not following

the prescribed procedure relating to counselling and is

unaware of the need to pursue an effort for harmonious

settlement before the parties go for trial.

4. We are not, in these circumstances, persuaded to

invoke our extraordinary constitutional jurisdiction under

Art.227 of the Constitution. This is not to say that the

procedure for counselling cannot or need not be followed by the

court below. It shall be open to the petitioners to bring to the

notice of the court below that such procedure has to be

followed. On such application if filed, appropriate orders will

have to be passed by the court below.

5. With the above observations, this O.P.(FC) is dismissed.

6. Hand over a copy of this judgment to the learned

O.P.(FC) No.632 of 2010 -: 4 :-

counsel for the petitioners for production before the Family

Court if and when the petitioners move an application to follow

the procedure for counselling.

Sd/-

R. BASANT
(Judge)

Sd/-

K. SURENDRA MOHAN
(Judge)

Nan/

//true copy//

P.S. to Judge

O.P.(FC) No.632 of 2010 -: 5 :-