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2017 DIGILAW 456 (KER)

NIDHI SUSAN KURIAN v. TEJAZ K. JOHN

2017-03-03

A.M.SHAFFIQUE, K.RAMAKRISHNAN

body2017
JUDGMENT : K. RAMAKRISHNAN, J. 1. The petitioners in I.A. No. 855/2016 in O.P. No. 2396/2014 on the file of the Family Court, Ernakulam have filed this petition challenging Ext.P19 order of that Court under Article 227 of the Constitution of India. 2. It is alleged in the petition that the first petitioner is the daughter of second petitioner and wife of the first respondent. A male child was born to them in that wedlock and according to the first petitioner, the first petitioner and the child were deserted by the first respondent and the child was looked after by her as she was employed and residing in United States of America with the Child since January 2015. The first respondent- husband filed Ext.P1 O.P. No. 987/2011 for divorce. He also filed Ext.P2 O.P. No. 1989/2013 seeking decree for money and other movable properties alleged to have been given to the first petitioner and appropriated by her during their matrimonial life. He also filed Ext.P3 O.P. No. 47/2015 for custody of the child against the petitioners and mother of the first petitioner. The first petitioner herein filed Ext.P4 petition as O.P. No. 2396/2014 before the Family Court, Ernakulam against the first respondent herein under Section 26 of the Protection of Women from Domestic Violence Act, 2005. All these cases are pending before the same Court. The first petitioner filed Ext.P5 objection to Ext.P1 O.P. No. 987/2012 and also filed Ext.P6 objection to Ext.P2 O.P. No. 1989/2013 and the petitioners along with other respondent filed Ext.P7objection to Ext.P3 O.P. No. 47/2015. The first respondent was employed in South America till he came back to India some time at the middle of 2015. The first petitioner attended for counselling in all the above cases and left for employment abroad in January, 2015.Exts.P1 to P4 were being posted together before the Counsellor and the Court and the conciliation proceedings were made impossible by the first respondent and he did not file any written objection in Ext.P4 proceedings. No effective counselling could be possible in these cases. All these cases were posted to 22.12.2015 and the second petitioner was present in Family Court on that day and a counsel also represented the petitioners. No effective counselling could be possible in these cases. All these cases were posted to 22.12.2015 and the second petitioner was present in Family Court on that day and a counsel also represented the petitioners. However, the Family Court dismissed O.P. No. 2396/2014 for default and petitioners filed I.A. No. 5012/2016 to set aside the same and the same was allowed evidenced by Ext.P8 and ExtP9 respectively. On the same day, an order was passed in Ext.P1 for ex-parte evidence. I.A. No. 5012/2016 was filed to review that order evidenced by Ext.P10 and the same was allowed by Ext.P11 order of the Court below. Similarly the petitioners filed I.A .No. 5011/2015, I.A. No. 5013/2015 to review the order posting the cases for ex-parte evidence in Exts.P2 and P3 proceedings and the same were allowed and those petitions and orders were produced as Exts.P12 to P15 respectively. The petitioners filed I.A. No. 855/2016 for joint trial of Exts.P1 to P4 evidenced by Ext.P16. By the time, a new Judge was appointed in Family Court and all these cases were adjourned and Ext.P16 application was also adjourned along with the same to 27.4.2016 for objections. The petitioners' counsel was informed on 25.4.2016 that evidence will be recorded in ExtP1 petition for divorce at 3.30 pm on the next day by an Advocate Commissioner appointed for that purpose. So the petitioners filed a memo before the Commissioner stating that joint trial application was filed. The Commissioner submitted an interim report regarding what transpired on the previous day evidenced by Ext.P17. The respondents filed Ext.P18 objection to Ext.P16 application and the Court below by Ext.P19 order dismissed the same which is under challenge. 3. Heard Sri. S.A. Razzak, the learned counsel appearing for the petitioners and Sri. T.M. Raman Kartha, the learned counsel appearing for the first respondent. 4. The learned counsel appearing for the petitioners submitted that the Court below was not justified in dismissing the application for joint trial as the matters to be considered in all these cases are based on common evidence. S.A. Razzak, the learned counsel appearing for the petitioners and Sri. T.M. Raman Kartha, the learned counsel appearing for the first respondent. 4. The learned counsel appearing for the petitioners submitted that the Court below was not justified in dismissing the application for joint trial as the matters to be considered in all these cases are based on common evidence. The Family Court observed in the impugned order that the counselling was not over in O.P. No. 2396/2014 and the pleadings are not completed and the application was filed by a male power of attorney holder which is not maintainable before the Family Court and so the same cannot be tried jointly along with O.P. No. 987/2012 and dismissed the application and none of these grounds are sustainable. According to the learned counsel, by virtue of Section 26 of the Protection of Women from Domestic Violence Act, all the reliefs under that Act can be claimed before civil court or family court and the observation of the Court below that, that is not maintainable is not correct. Further a power of attorney is entitled to file an application and that is not a ground for rejection of the application. Further the Court below was not justified in postponing the counselling as it has been held by this Court that counselling is not mandatory in all cases. So none of the reasons stated by the Court below are justifiable. He had relied on the decisions reported in Abdul Salam vs. Mariyumma, 2007 (1) KLT 713 , Muhammed Rafeeq vs. Ameena, 2015 (3) KLT SN 119 (C. No. 151), Blessy Varghese Edattukaran vs. Sonu, 2015 (4) KLT 572 and Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and Another, 2014 (10) SCC 736 in support of his case. 5. On the other hand, the learned counsel appearing for the respondent submitted that the application under the Domestic Violence Act is not maintainable before the Family Court and since the cases are not ripe for trial, the Court below was justified in dismissing the application for joint trial. He had relied on the decision reported in Anish Antony Thimothy & Others vs. Neetha & Another, 2011 (3) KLT 409 and Raju Narayana Swamy vs. Beena M.D. 2017 (1) KHC 607 in support of his case. 6. He had relied on the decision reported in Anish Antony Thimothy & Others vs. Neetha & Another, 2011 (3) KLT 409 and Raju Narayana Swamy vs. Beena M.D. 2017 (1) KHC 607 in support of his case. 6. It is an admitted fact that Exts.P1 to P3 proceedings are pending between the same parties before the Family Court, Ernakulam which were filed by the husband against the wife and her relatives claiming various reliefs including divorce against the wife, return of gold ornaments and other movables and money which was said to be given to the wife and appropriated by her while they were living together and for custody of the minor child. In all those cases, the pleadings are complete. It is also not in dispute that the petitioners herein filed Ext.P4 petition for claiming relief under Sections 18 to 22 of Protection of Woman from Domestic Violence Act. In that case, the pleadings are not over, even counselling is not complete. In the decision reported in Anish Antony Thimothy's case (supra), a Single Bench of this Court has held that Proceedings pending before the Magistrate court under the provisions of Protection of Women from Domesticate Violence Act cannot be transferred to Family Court to be tried along with cases pending before that court and it is observed in that decision that: "True that by virtue of power conferred under 26 of the Act apart from the Magistrate above referred, a civil court or Family Court or criminal court is also empowered to grant relief under Sections 18, 19, 20, 21 and 22 of the Act. That provision is not intended to equate the Magistrate exercising power under the Act with a Family Court or civil court empowered to grant certain reliefs as provided in the Act. The mere fact that power to grant certain reliefs is conferred on other courts also does not mean that the proceeding pending before the Magistrate could be transferred to those courts." 7. The mere fact that power to grant certain reliefs is conferred on other courts also does not mean that the proceeding pending before the Magistrate could be transferred to those courts." 7. In the decision reported in Sudhannya vs. Umasanker Valsan, 2013 (1) KLT 135 a Division Bench of this Court considered the question as to whether in a pending proceedings under Section 18(2) of the Hindu Adoptions & Maintenance Act for past maintenance, whether reliefs under the Domestic Violence Act (hereinafter referred to as the DV Act) can be granted by the Family Court and held that by virtue of Section 26 of the Protection of Women from Domestic Violence Act such an application is maintainable before that court in a pending proceedings. It may be mentioned here that a Division Bench has not considered the question as to whether an independent proceedings for the reliefs claimable under the Domestic Violence Act can be independently maintained before the Family Court in that decision. Further, that was a case where though an application was filed before the Chief Judicial Magistrate under the Provisions of Domestic Violence Act when the petitioner filed an application before the Family Court by way of an interlocutory application in pending proceedings, the petition pending before the Chief Judicial Magistrate was not pressed. So this Court has held that by virtue of Section 26 of the Domestic Violence Act, the Family Court has power to pass interim protection orders as interim residence orders in the pending proceedings. 8. But in the decision reported in Raju Narayana Swamy vs. Beena M.D. 2017 (1) KHC 607 a Single Bench of this Court has held that: "Family Court has no jurisdiction to take cognizance of an independent and original proceeding under Domestic Violence Act. Family Court will have jurisdiction only if there is an existing legal proceeding and application under Section 26 of the Act seeking relief under Sections 18 to 22 is filed in that proceeding." 9. It is further held in the same decision that: "The intention of the Legislature was to enable the aggrieved person to secure the same relief in other proceedings before the Civil, Family or Criminal Court, whether it was instituted prior to or after the commencement of the PWDV Act. It is further held in the same decision that: "The intention of the Legislature was to enable the aggrieved person to secure the same relief in other proceedings before the Civil, Family or Criminal Court, whether it was instituted prior to or after the commencement of the PWDV Act. This would ensure to the convenience of the aggrieved person as well as the respondent and would also prevent multiplicity of proceedings and conflict of orders. However an application under section 12 seeking various reliefs under Section 18 to 22 cannot be filed as an original or independent application before the Family Court as the Act expressly stipulates that a proceeding under Section 12 of the PWDV Act has to be filed before the Magistrate competent to entertain the application. The Family Court will have jurisdiction under the PWDV Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding and the application under Section 26 of the Act seeking relief under Sections 18 to 22 is filed in that proceeding." 10. In the decision reported in Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and Another, 2014 (1) SCC 736 It has been held that: "Any relief available under the Domestic Violence Act may also be sought for in any legal proceedings even before a civil court and Family Court, apart from the criminal court, affecting the aggrieved person whether such proceeding was initiated before or after the commencement of the DV Act. Even before the criminal court where case under Section 498 A IPC is pending, if the allegation is found genuine, it is always open to the appellant to ask for reliefs under sections 18 to 22 of the DV Act and interim relief under Section 23 of the DV Act." 11. In the decision reported in Muhammed Rafeeq vs. Ameena, 2015 (3) KLT SN 119 (C. No. 151) a Single Bench of this Court Held that: "Proceedings for maintenance and return of money and gold ornaments can be tried jointly for which Court can frame distinct and different issues." 12. The question raised in this case was as to whether the proceedings under Section 125of the Code of Criminal procedure can be tried along with other proceedings and it was held that it can be possible and there is no illegality in allowing such application by the Family Court. 13. The question raised in this case was as to whether the proceedings under Section 125of the Code of Criminal procedure can be tried along with other proceedings and it was held that it can be possible and there is no illegality in allowing such application by the Family Court. 13. Further in the decision reported in Abdul Salam v. Mariyumma, 2007 (1) KLT 713 wherein it has been held that: "Petition to set aside ex-parte order can be filed by Power of Attorney Holder." 14. There is no dispute regarding the proposition that a petition can be filed on behalf of the aggrieved person through power of attorney, but the claim must be made for and on behalf of the aggrieved person as defined under the DV Act. Section 12 also did not bar such a procedure. So the reason stated by the Court below that since the petition was filed by a power of attorney holder, such an application is not maintainable appears to be not correct. The submission made by the learned counsel for the petitioners insist for counselling before proceeding with the case is not mandatory relying on the decision reported in Blessy Varghese Edattukaran vs. Sonu, 2015 (4) KLT 572 does not appear to be correct as even in that decision it has been held that Family Court need not in all cases insist for counselling before proceeding with trial. 15. Section 9(1) of the Family Court Act says that: "In every suit or proceeding, endeavour shall be made by the Family Court in the first instance where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at settlement in respect of the subject matter of the suit or proceeding and for this purpose the Family Court may, subject to any rules made by the High Court, follow the procedure as it may deem fit." 16. Sub-section (2) of that Section says that: "If any suit or proceedings, at any stage, it appears to the Family Court that there is a reasonable possibility of settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such settlement." 17. Sub-section (2) of that Section says that: "If any suit or proceedings, at any stage, it appears to the Family Court that there is a reasonable possibility of settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such settlement." 17. Sub-section (3) says that: "The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings." 18. Further in the decision reported in Blessy Varghese Edattukaran vs. Sonu, 2015 (4) KLT 572 a Division Bench of this Court has only held that in a joint petition for divorce, the Court need not insist for combined counselling and that was a case where joint application for divorce for mutual consent was filed and the question arose in that case as to whether parties must be directed to appear for a joint counselling. But, in that case the court came to the conclusion 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 cousnelling in such cases. However, the insistence for statutory waiting period and subsequent ascertainment of attitude of the parties with respect to their determination of getting the marital relationship dissolved, is totally mandatory and need to be strictly adhered to. 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." 19. So from this, it cannot be said that the Court has come to the conclusion that the counselling will have to be completely dispensed with and it has only held that if the parties are not available due to some valid reasons, then it will be left open to the Family Court to consider such application and allow exemption from undergoing counselling with respect to either one of the parties or both the parties as the case may be. In such situation it is also not necessary to insist upon both the parties to have counselling together. It is left open to the Family Court to take appropriate decision in each case taking note of the genuineness of such application. So this decision also does not say that counseling is not required. At the most it can be said that instead of conducting joint counselling, separate counselling can be conducted and thereafter if the court feels that joint counselling is also required for considering the question of possibility of reunion, then that can also be considered. 20. In this case, it is not a joint petition for divorce where parties have decided to separate. So under such circumstances the submission made by the counsel for the petitioner that there is no necessity for a counselling at all in O.P. No. 2396/2014 appears to be unsustainable. If the Court feels that a counselling is required, then every endeavour under Section 9 will have to be done by the Court before proceeding with the trial of the case. 21. As regards the joint trial is concerned, it is seen from the allegations itself that the pleadings in O.P. Nos. 987/2012 and 1989/2013 and 47/2015 were complete and all these cases can be tried jointly. So under such circumstances, the rejection of the application by the Court below in toto appears to be incorrect. Further as regards O.P. No. 2396/2014 is concerned, counselling is not over and pleadings are not complete. Further the nature of evidence to be adduced in that case will be different as well. Further, the question of maintainability of that case before the Family Court also has to be considered by that Court on the basis of the objections to be raised by the parties in detail as a preliminary point and we are not expressing any opinion on this aspect in this proceedings. So under such circumstances, it cannot be said that the Court below had committed any illegality in disallowing the application for joint trial in respect of O.P. No. 2396/2014 is concerned as it will only cause delay in disposal of other cases. So under such circumstances, this Court mentioned above can be set aside and the petition can be disposed of as follows: (i) I.A. No. 855/2016 is partly allowed. The Court below is directed to conduct joint trial of O.P. Nos. So under such circumstances, this Court mentioned above can be set aside and the petition can be disposed of as follows: (i) I.A. No. 855/2016 is partly allowed. The Court below is directed to conduct joint trial of O.P. Nos. 987/2012, 1989/2013 and 47/2015 and dispose of the same after conducting joint trial. (ii) As regards O.P. No. 2396/2014 is concerned, the Court below is directed to consider the question of maintainability in detail after giving an opportunity to the parties to raise the question and then decide that question as a preliminary issue and then proceed with the case in accordance with law. With the above directions and observations, this petition is disposed of. Registry is directed to communicate a copy of this judgment to the Court below at the earliest.