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2023 DIGILAW 150 (KER)

Shiju Joy A. , S/o. A. v. Joy VS Nisha

2023-02-10

A.MUHAMED MUSTAQUE, C.S.DIAS

body2023
ORDER : A. Muhamed Mustaque & C.S. Dias, JJ. 1. Read our orders dated 24.6.2022, 29.7.2022 and 28.10.2022. 2. The attention of this Court is drawn by the learned counsel appearing for the parties of the practical difficulties being faced by the litigants in filing transfer petitions before this Court in view of the newly inserted R.4A (2) of the Family Courts (Kerala) Rules, 1989 (in short ‘Rules’). 3. The R.4A(1) and (2) reads as follows:- “4A. Procedure before issuance of summons:-- (1) Before issuing summons to the respondent/s, the Judge shall scrutinize the petition or application, hear the petitioner/s or his/her/their counsel and shall if he is of the opinion that there is scope for a settlement, issue notice to both parties to appear in person on a date to be fixed in that regard for the purpose of considering whether the parties can be referred for mediation. (2) A notice in form No.8 shall then be issued to the respondent/s without attaching the copy of the petition or application but intimating the date and time to appear in person before the Court. The copy of the notice shall also be issued to the petitioner/s or his/her/their counsel. xxxxx xxxxx xxxxxx” 4. As per R.4A(2), only a notice in Form No.8 shall be issued to the respondent/s without attaching the copy of the petition or application. 5. It is the submission of the learned counsel that, due to the above rule, the litigants are not in a position to ascertain the names, addresses, status of the parties and reliefs claimed in the petition filed before the Family Courts, from the notice, for the purpose of filing transfer petition before this Court under S.24 of the Code of Civil Procedure or S.407 of the Code of Criminal Procedure. Moreover, the Registry is insisting for the production of the petition filed before the Family Court along with the transfer petition. 6. This Court, by order dated 28.10.2022 in the present case, has already held that there is no conflict between the guidelines laid down by this Court in the present case and the newly inserted R.4A of the Rules. 7. Rule 4A has been incorporated in the Rules with the benevolent intention to make an attempt for reconciliation between the parties before they contest the petition on its merits. 8. 7. Rule 4A has been incorporated in the Rules with the benevolent intention to make an attempt for reconciliation between the parties before they contest the petition on its merits. 8. Nonetheless, this Court has directed that, if there are any interlocutory applications which require urgent orders, the Family Courts shall have the discretion to decide whether the application requires consideration before the commencement/ completion of the mediation/conciliation proceedings. 9. On a closer scrutiny of R.4A(2) of the Rules, it is specifically stipulated that a notice in Form No.8 shall be issued to the respondent/s without attaching the copy of the petition or application. 10. Form No.8 of the Family Courts (Kerala) Rules, 1989, is extracted below, which reads thus: FORM No.8 (See Rule 4A) In the Family Court of...................................... Original Petition No…......................................of 20.... ......................... Petitioner/s Vs. .......................... Respondent/s To ......................Respondent/s Whereas the above named petitioner/s has instituted a petition against you for the relief of ............(mention the relief), you are hereby summoned to appear in person in the court at 11.00 a.m. on .................Take notice that on the day mentioned above, after hearing the parties in person, direction will be issued by the Judge as to the date of appearance before the Counsellor/Mediation Centre. You are hereby informed that a copy of the original petition filed against you will be given to you if the process of counselling/mediation fails and the case is to be proceeded with on merits. Dated this the...................... day of 20 Chief Ministerial Officer Office Seal Copy to ........................... Petitioner/Advocate for the Petitioner/s By order of the Governor, T.K. JOSE Additional Chief Secretary to Government. 11. A bare reading of Form No.8 reveals that the form requires the petitioner/s to fill in all requisite details of the parties, including the relief prayed for in the petition. 12. In the above background, we are of the view that the Family Courts have to be directed to ensure that the petitioner/s fill in all the details in Form No.8, including the relief, while presenting a petition. If the same is done, it would redress the problem on hand. 13. 12. In the above background, we are of the view that the Family Courts have to be directed to ensure that the petitioner/s fill in all the details in Form No.8, including the relief, while presenting a petition. If the same is done, it would redress the problem on hand. 13. Likewise, if the said form is produced along with a transfer petition filed under S.24 of the Code of Civil Procedure or under S.407 of the Code of Criminal Procedure before this Court, the Registry shall accept the transfer petition, without insisting for the copy of the petition/application filed before the Family Court. The above procedure would in turn also redress the grievances of the parties regarding the filing of transfer petitions before this Court. 14. It has come to the notice of this Court that even though conciliation proceedings are being conducted by the Family Courts, in proceedings pertaining to guardianship/custody/access of the children, no effective counselling is being given to the children who are the ultimate victims of a family feud. Therefore, we are of the view that the Counsellors of the Family Courts have to be directed to impart effective counselling to children, to make them understand about the litigation between their warring parents/guardians which would in some way obviate the heart-burn of the children. 15. This Court had, by order dated 29.7.2022, directed the State of Kerala, to ensure that Civil Police Officers are deputed in all courts during the court hours to ensure the smooth functioning of the courts and to avert any untoward incident or law and order problem. 16. The State Attorney has submitted that he has received the requisite instructions and would like to place on board a counter affidavit of the Additional Director General of Police (Law and Order). The State Attorney shall ensure that the said affidavit is placed on record positively on or before the next posting date, keeping in mind its undertaking before the Hon’ble Supreme Court in Karunakar Mahalik v. Union of India and others (W.P.(C) No.1422 of 2019 and SMW (Crl) 2/2021;). Resultantly, we pass the following directions: (i) The Family Courts are directed to ensure that the petitioner/s fill in complete details in Form No.8, including the relief, while presenting a petition before the Family Court. Resultantly, we pass the following directions: (i) The Family Courts are directed to ensure that the petitioner/s fill in complete details in Form No.8, including the relief, while presenting a petition before the Family Court. It is the said Form that has to be issued to the respondent/s. (ii) The Registry of this Court is directed to accept the transfer petitions filed under Section 24 of the Code of Civil Procedure and S.407 of the Code of Criminal Procedure, arising out of the family court matters by accepting Form No.8 as an Annexure, without insisting for the petition/application filed before the Family Court. (iii) The Counsellors of the Family Courts are directed to impart effective counselling to children in matters pertaining to custody/visitation/guardianship of children. (iv) The State Attorney is directed to ensure that a counter affidavit of the competent officer of the State is filed in this Original Petition as directed by this Court on 29.7.2022.