IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 244 of 2008()
1. JOSEPH ALIAS BIJU GEORGE,
... Petitioner
Vs
1. MARY ALIAS PRIYA THOMAS,
... Respondent
2. AKASH(MINOR), S/O.BIJU GEORGE,
For Petitioner :SRI.VIJAI MATHEWS
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/07/2008
O R D E R
R. BASANT, J.
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R.P.(FC) No. 244 of 2008
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Dated this the 30th day of July, 2008
ORDER
Can there be a settlement of a claim under Sec.125
Cr.P.C. before the Counsellor of the Family Court? Is the
Family Court justified in accepting and acting upon such report
of the Counsellor? These are the questions strenuously raised
by the learned counsel for the petitioner in this revision
petition at the stage of admission.
2. Fundamental facts are not disputed. Marriage is
admitted. Paternity is not in dispute. That the spouses are
residing separately is also not disputed. Separate residence,
according to the petitioner, started on 8/12/03. The claim for
maintenance was filed by the claimants – wife and child, on
16/3/07. Parties were referred to Counsellor and the
Counsellor made attempts to settle the dispute. On 10/10/07
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there allegedly was a settlement before the Counsellor. The
Counsellor recorded that settlement, countersigned the same
and along with a report submitted the same to the learned Judge
of the Family Court. In such settlement, it was recorded that an
amount of Rs.750/- per mensem each shall be paid by the
petitioner to both the claimants – his wife and child. Such
payment was agreed to be made from the date of the petition. It
was also agreed that the petitioner shall send the amount by
money order to the 1st claimant/wife before the 15th of every
month from November, 2007. It is accepting and acting upon
the said settlement arrived at before the Counsellor and reported
to the court by the Counsellor after due counter signature that
the learned Judge of the Family Court proceeded to pass the
impugned order.
3. The petitioner claims to be aggrieved by the impugned
order. What is the grievance? The signature in the agreement
is not disputed. It is contended that such a settlement before
the Counsellor is of no legal effect or value. The learned Judge
of the Family Court should not have accepted and acted upon
such settlement. In these circumstances, it is prayed that the
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impugned order may be set aside and this revision petition may
be allowed.
4. The learned counsel for the petitioner was heard in
detail. The learned counsel for the petitioner was specifically
asked to respond to the specific stipulation in Rule 35 of the
Family Courts (Kerala) Rules, 1989. The same reads as follows:
“35. Settlement before
Counsellor– When the parties arrive at a
settlement before the Counsellor relating
to the dispute or any part thereof, such
settlement shall be reduced to writing and
shall be signed by the parties and
countersigned by the Counsellor. The
court shall pronounce a decree or order in
terms thereof unless the court considers
the terms of the settlement unconscionable
or unlawful”
5. There is no contention that the settlement is
unconscionable or unlawful. There is no specific contention
even that the petitioner’s signature was obtained fraudulently or
without apprising him of the consequences. The counsel raises
various contentions to assail the agreement on the basis of which
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the impugned order was passed.
6. The first contention that no settlement at all can be
arrived at before the Counsellor cannot obviously be accepted in
the light of the clear and unambiguous language of Rule 35 of
the Family Courts (Kerala) Rules extracted above. The said first
contention does therefore fall to the ground.
7. Secondly it is contended that what happened on
10/10/07 was not a settlement. The contention is based on the
reasoning that settlement contemplated under the Family Courts
(Kerala) Rules can only be an agreement to unite and live
harmoniously. I am afraid, I cannot agree. The words
“settlement” in language or in the context in which it is used in
the of the Family Courts (Kerala) Rules cannot at all convey that
only an agreement to reunite and resume harmonious
cohabitation would fall within the ambit of the expression
“settlement”. Any arrangement by which the dispute is settled
between the parties can fall within the ambit of the expression
“settlement” in Rule 35. This second contention cannot also
hence succeed.
8. Thirdly and lastly it is contended that the petitioner was
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not given legal assistance when the parties went for conciliation.
The settlement arrived at without the assistance of a legal
practitioner is not justified. The same must be eschewed and
ignored, it is contended. This contention cannot also obviously
stand. The rationale of the provisions of the Family Courts Act
and Rules is that assistance by a lawyer need be granted to a
party even for the conduct of the case only if the court in its
discretion feels the need to grant such permission. The fact that
the petitioner was not assisted by a counsel does not vitiate the
order passed on merits by the Family Court and definitely not an
order passed on the basis of a settlement arrived at.
9. The learned counsel for the petitioner, it would appear,
is perturbed by the fact that O.P.No.32/07 is pending before the
same court i.e., the Family Court, Kannur, for restitution of
conjugal rights. It would appear that the apprehension of the
petitioner is that this agreement to pay maintenance for the wife
residing separately might affect his claim for restitution of
conjugal rights adversely. I need only mention that that
apprehension is without any basis. The settlement that has
been reached which was reduced to writing under Rule 35 as
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also the report of the Counsellor does not, in any way, have any
bearing on the claim of the petitioner for restitution of conjugal
rights. I need only mention that the fact that the maintenance
claim was settled and the maintenance was agreed to be paid
will not, in any way, fetter the rights of the petitioner to raise all
relevant contentions before the Family Court in O.P.No.32/07 for
restitution of conjugal rights. The petitioner, I feel, will even be
able to contend that without prejudice to his contentions in the
O.P. he had agreed to pay maintenance and that again only
shows the bona fides of the petitioner. Even that contention
does appear to me to be possible before the Family Court in
O.P.No.32/07. At any rate, pendency of the said O.P. will not, in
any way, vitiate the settlement which has been reached between
the parties and reduced to writing in the presence of the
Counsellor.
10. The learned counsel for the petitioner submits that it
may be clarified that if the petitioner succeeds in the O.P. for
restitution of conjugal rights and the claimant/wife does not
comply with the said order, the petitioner shall be entitled to get
the impugned order passed under Sec.125 Cr.P.C. modified by
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resort to the provisions of Sec.127 Cr.P.C. Certainly, if the
petitioner succeeds in O.P.No.32/07, his right to move the court
under Sec.127 Cr.P.C. for modification of the order shall
remain.
11. I am satisfied, in these circumstances, that this
revision petition does not merit admission. The same is
dismissed with the above observations. I am satisfied that it is
not necessary to order notice to the respondent and wait for
service and appearance to dispose of this revision petition in
these circumstances.
12. In the result, this RP(FC) is dismissed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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