Partly allowed

Sajithkumar.a. v. Radhika G.R.

Kerala HC10 Jul 2008Tr.P(C)/134/2008

Case brief

AI extract

What is this about?

The High Court examined a transfer petition seeking to move divorce cases from the Family Court, Kottayam to Ernakulam due to lack of conciliation. The court clarified that the Family Court is obligated to attempt settlement under the Family Courts Act. The pending petitions were dismissed after directing the Kottayam court to attempt conciliation before proceeding to evidence.

What did the court decide?

Transfer petition dismissed. Family Court, Kottayam directed to attempt conciliation between parties under Family Courts (Kerala) Rules 1989 before recording evidence.

Sajithkumar.a. Vs Radhika G.R. — Matrimonial and Divorce | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 Tr.P(C).No. 134 of 2008() --------------------------------OP(DIV.)973/2007 of FAMILY COURT, KOTTAYAM ....................

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PETITIONER : -------------------

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A.SAJITH KUMAR, S/O.VISWANATHAN, AGED 28 YEARS, RESIDING AT VANAJAM, BANGLOW LANE, PONEKKARA, KANAYANNOOR, ERNAKULAM.

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BY ADV. SRI.M.R.HARIRAJ SMT.VINEETHA B.

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RESPONDENT :

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G.R.RADHIKA, AGED 23 YEARS, D/O.S.RAJENDRAN NAIR, RAJAGEETHAM, KIZHAKKENADA, VAIKOM, WORKING AT INFOTECH ENTERPRISES, BANGALORE.

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THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Tr.P(C).No. 134 of 2008

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ORDER IN I.A.No.1386/08 IN Tr.P(C).No.134/2008

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DISMISSED

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10.07.2008 SD/M.SASIDHARAN NAMBIAR, JUDGE -TRUE COPYP.A. TO JUDGE

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pac

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M.SASIDHARAN NAMBIAR, J. ........................................... TR.P(C).No. 134 OF 2008

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............................................ DATED THIS THE 10TH DAY OF JULY, 2008

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ORDER

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Petitioner is the husband and respondent, the wife. These petitions are filed to order transfer of O.P(div) 973 of 2007 and O.P. 974 of 2007 pending before Family Court, Kottayam to Family Court, Ernakulam. Case of the petitioner is that Family Court is proceeding to try the case without an attempt for conciliation and if there is an effective conciliation, there is every chance for a settlement and as it is not being done, the case is to be transferred to some other Family Court.

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In view of the contention, a report was called for from Family Court, Ettumanoor. The report submitted by the Presiding Officer shows that O.P(div) 973 of 2007 was filed on 24.11.2007 and it was allowed exparte on 12.3.2008 and O.P.974 of 2007 filed by the wife for return of her share of Rupees Five Lakhs is also pending before that court and in that case, second respondent, father of petitioner, sought time to file the vakalath and thereafter an application was filed to set aside the exparte order in O.P.974 of 2007 against the petitioner, which was allowed on payment of cost of Rs.1000/-, and both husband and

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TPC 134/2008 2

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wife appeared on 24.3.2008 in O.P.974 of 2007 and wife insisted for an early disposal and husband also stated that as he is coming from Bangalore, matter may be expedited and conciliation talk was conducted on 24.3.2008 and parties could not come to a settlement and the case was posted for evidence to 19.4.2008 and thereafter petitioner filed an application to set aside the order of divorce which was subsequently allowed and the cases are posted to 16.7.2008. The Presiding Officer stated that the further conciliation was not attempted as none of the parties insisted for the same and if the parties wanted further conciliation, it could be done.

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Learned counsel appearing for petitioner submitted that though petitioner and respondent appeared on 24.3.2008, the wife refused to talk to the petitioner on the ground that divorce petition stands allowed and there was no attempt for conciliation as contemplated under Section 9(2) of Family Courts Act, 1984 or as provided under Family Courts (Kerala) Rules 1989 and Family Court, before recording evidence is bound to attempt for conciliation.

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In view of the report submitted by the Presiding Officer of Family Court, I do not find it necessary to order transfer of the

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TPC 134/2008 3

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cases as sought for. Sub-section 2 of Section 9 of Family Court Act provides that if in any suit or proceeding, at any stage it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, Family Court is to adjourn the proceedings for such period as it deems fit, to enable attempts to be made to effect such settlement. Rule 24 of Family Court(Kerala) Rules 1989 provides that Counselor appointed to counsel the parties shall fix the time and date of appointment and the parties shall be bound to consult the Counselor on the date and time so fixed. Rule 35 provides that when parties arrive at a settlement before the Counselor relating to the dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and counter signed by the Counselor and court shall pronounce the decree or order in terms thereof, unless court considers the terms of settlement unconscionable or unlawful.

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When there is a dispute between wife and husband and one party approaches the Family Court for divorce, before recording the evidence and deciding the question whether petitioner is to be given dissolution of marriage, Family Court is bound to make an earnest attempt for a settlement of the

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TPC 134/2008

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dispute. That is the very spirit behind the Act. In view of the case of petitioner that no effective conciliation was done, Family Court, Kottayam is directed to attempt for a conciliation between the parties, following the procedure provided under the Family Court(Kerala)Rules 1989 before proceeding to record the evidence. Petitions are dismissed.

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M.SASIDHARAN NAMBIAR, JUDGE

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lgk/-

Sajithkumar.a. v. Radhika G.R.

Case brief

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Sajithkumar.a. v. Radhika G.R.

Case brief

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