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.
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O.P.(FC) No.632 of 2010-R
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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
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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
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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
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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
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