(2012) 270 KLR 731

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS 

FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934 

OP (FC).No. 1551 of 2012 (R) 

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IA.NO.1360/2011 AND I.A.NO.1361/2011 IN OP(DA)1065/2008 of FAMILY COURT,TRIVANDRUM 

PETITIONER(S): 

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NISHA SUSAN GEORGE, AGED 37 YEARS D/O.GEORGE KURIAN, HAMLET, 11TH KILOMETER KOTAGIRI ROAD, CONOOR, NILGIRIS DISTRICT TAMIL NADU, NOW R/A HOUSE NO.4,BENCY VILLA AADHITHYA NAGAR,IST PHASE,VIDHYARANYAPURA POST BANGALORE-97 

BY ADV. SRI.RAJESH SIVARAMANKUTTY 

RESPONDENT(S): 

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ALEXANDER VADEKKEDAM S/O.LATE M.G.ALEXANDER, R/A.Q1, ASWATHY GARDENS MENAMKULAM, P.O.KAZHAKOOTTAM, THIRUVANANTHAPURAM-695005 

BY ADV. SRI.K.M.SATHYANATHA MENON 

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(FC) 1551/2012 

APPENDIX 

PETITIONER'S EXHIBITS : 

• EXT.P1:- TRUE COPY OF DEPOSITITION OF PETITIONER IN OP (DA)NO 1065/2008 RECORDED BY FAMILY COURT, THIRUVANANTHAPURAM 
• EXT.P2:- TRUE COPY OF DEPOSITION OF RESPONDENT IN OP DA NO 1065/2008 RECORDED BY FAMILY COURT, THIRUVANANTHAPURAM 
• EXT.P3:- TRUE COPY OF THE ORDER DTD 18/6/2009 PASSED BY FAMILY COURT, THIRUVANANTHAPURAM, IN OP(DA) NO 1065/2008 
• EXT.P4:- TRUE COPY ORDER IN IA NO 1360/2011 AND IA NO 1361/2011 IN OP (DA)NO 1065/2008 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM. 

RESPONDENT'S EXHIBITS : 

• NIL 

//TRUE COPY// PA TO JUDGE 

K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. 

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O.P.(F.C.) No.1551 of 2012 

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Dated this the 13th day of July, 2012 

Head Note:-

Divorce Act, 1869 - Section 10A - Family Courts Act, 1984 - Sections 7(2), 10 - Civil Rules of Practice, 1971 - Rules 145 and 146 - Heading/Signing of depositions - Nowhere in Rules it is made mandatory to put the date when the deposition is recorded. This is clearly an omission in the Rules. The Rule Committee will take note of this omission and make appropriate amendment to the Rules.

J U D G M E N T 

K.T.Sankaran, J. 

The petitioner, Nisha Susan George, and her husband Alexander Vadakkedam filed O.P.(DA) No.1065 of 2008 under Section 10A of the Divorce Act before the Family Court, Thiruvananthapuram, on 4.10.2008. The Family Court posted the petition to 6.4.2009, since a waiting period of six months is required under Section 10A of the Divorce Act. On 6.4.2009, both parties were present. On that day, counseling was also done. The case was adjourned to 28.5.2009. On that day, the wife was present, but the husband was absent. A representation was made on his behalf and the case was adjourned to 11.6.2009. On 11.6.2009, the evidence of the husband and the wife were recorded and the case was adjourned to 18.9.2009. The Family Court dismissed the Original Petition for default on 18.6.2009 on the ground that the parties were absent. 

2. The wife filed I.A.Nos.1360 of 2011 and 1361 of 2011 in the Original Petition before the Family Court for restoration of the Original Petition dismissed for default and to condone the delay of 666 days in filing the application for restoration. The Family Court dismissed those applications by the order dated 21.2.2012, which is under challenge in this O.P.(F.C.). 

3. According to the petitioner, after recording evidence, the case was posted for judgment. On that day, the parties were absent and the court dismissed the case for default. The petitioner also contends that all the formalities had been complied with and there was no justification for dismissing the case for default. 

4. When I.A.Nos.1360 of 2011 and 1361 of 2011 came up for hearing, the respondent in those applications (husband) stated that he has no objection for allowing the applications and he made an endorsement to that effect on the interlocutory applications. Still, the court below dismissed the applications. The court below held that the delay was not satisfactorily explained. It was also held that even if the case is restored to file, the prayer for divorce cannot be allowed since 18 months elapsed from the date of filing of the Original Petition. 

5. We called for the records and perused all the records. It is seen that the depositions of the husband and the wife were taken by the Family Court after administering oath. However, the deposition does not contain the date on which the evidence was recorded. Both the parties submitted that their evidence was recorded on 11.6.2009, i.e., after the expiry of the period of six months from the date of filing of the petition under Section 10A of the Divorce Act. It is seen that the deposition is recorded in a printed form, namely, Form 16 under Chapter XXII of the Code of Criminal Procedure. The following columns are seen in the printed sheet. 

"Name, Father's name, Village, Taluk, Caste, Calling, Religion, Age. Solemnly affirmed on the ..................day of ............20..." 

However, the date on which the deposition was recorded is not entered in the column. At the foot of the deposition, there is an endorsement that "read over and found correct". The seal of the court and the signature of the deponent are affixed. There also, the date is not seen put. 

6. Section 7(2) of the Family Courts Act provides that subject to the other provisions of the Act, a Family Court shall also have and exercise - 

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974) ; and 

(b) such other jurisdiction as may be conferred on it by any other enactment.

7. Section 10 of the Family Courts Act provides that subject to the other provisions of the Act and the Rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such Court. Sub Section (2) of Section 10 states that the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. Sub Section (3) of Section 10 empowers the Court to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. It is clear from Sections 7 and 10 of the Family Courts Act that in a proceeding under Section 10A of the Divorce Act, the Family Court has to follow the procedure as laid down in the Code of Civil Procedure. If so, the Family Court was not fully right in using Form No.16 under Chapter XXII of the Code of Criminal Procedure. Probably, the Form prescribed for recording the evidence in civil proceeding might not have been available before the Family Court. Anyhow, that by itself would not invalidate the recording of evidence in the case. 

8. Rules 145 and 146 of the Civil Rules of Practice provide for recording of evidence, which read as follows : 

"145. Heading of depositions :- In the heading of all depositions of witness the full name of the deponent and his or her father's or mother's or karnavan's or husband's name which the deponent usually uses as his or her surname shall be recorded. The heading shall also state the age, profession, and residence of the witness. The name of the officer who administers the oath or affirmation and name of the interpreter, if any, shall be written below the particulars stated above. 

146. Signing of depositions : (1) After a deposition has been read over to the witness the last page thereof shall be signed in full by him. The judge shall initial every page if the deposition is not recorded in his hand. A certificate in the following form shall be appended at the foot of the deposition and the Judge shall affix his signature thereto over his name. 

"Taken down by/before me in open Court, interpreted/ read over to the witness and admitted by him to be correct". 

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Presiding Judge may, instead of correcting the evidence, make a memorandum thereof or the objections made to it by the witness and shall add such remarks as he thinks necessary." 

It is interesting to note that nowhere in Rules 145 and 146 of the Civil Rules of Practice, it is made mandatory to put the date when the deposition is recorded. This is clearly an omission in the Rules. We are sure that the Rule Committee will take note of this omission and make appropriate amendment to the Rules.

9. Though the Form used by the Family Court was Form No.16 prescribed under Chapter XXII of the Code of Criminal Procedure, a column for date is specifically provided there. But, the date is not seen affixed. The question involved in this Appeal can be decided only on ascertaining whether the deposition of witnesses was recorded at the time when they filed the application under Section 10A of the Divorce Act or whether it was done after six months. For that purpose, the date of deposition is the crucial factor. From the records available, it is not clear on what date the deposition was recorded. But on verifying the various dates on which the case was posted, it is fairly clear that the evidence of the parties was recorded after the expiry of the period of six months from the date of filing of the petition under Section 10A of the Divorce Act. 

10. It is necessary for the courts to ensure that when the deposition of a witness is recorded, all the relevant particulars are entered in the form with the date on which it was recorded.

11. In the present case, the Family Court dismissed the application under Section 10A for default on 18.6.2009. The petition under Section 10A was filed on 4.10.2008. Sub Section (2) of Section 10A of the Divorce Act provides that on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to Sub Section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree. This provision enables the parties to move the court after six months of the date of filing of the petition under Section 10A. They are entitled to make motion at any time within 18 months after the date of filing of the petition. Even if a motion is made after six months and before 18 months and that attempt did not fructify because of the absence of parties, nothing prevents them from making another motion within a period of 18 months. The court cannot dismiss a petition under Section 10A before the expiry of the period of 18 months referred to in Sub Section (2) of Section 10A unless in the meanwhile the petition is withdrawn by both the parties. If on a motion made by the parties or any of them, they fail to appear, the court would be justified in closing the petition. In such an event, the parties would be entitled to move the petition under Section 10A filed by them at any time before the expiry of 18 months as provided in Section 10A. 

12. When all the formalities to be complied with were complied with by the parties, the Family Court was not justified in dismissing the application for default. It is true that on 18.6.2009, the parties were not present before court, but their evidence was recorded before that date on their motion after the expiry of six months. The parties did not withdraw the petition at any time. In these circumstances, the court below was not justified in dismissing the petition for default on 18.6.2009. The order dated 18.6.2009 is illegal and it is liable to be set aside. 

13. The wife filed the application for restoration of the Original Petition dismissed for default with a petition for condoning the delay. On going through the records, we are of the view that the reasons stated by the court below for dismissing the application are not legal and proper. Even otherwise, since the order dated 18.6.2009 is illegal and opposed to law, we are inclined to exercise our jurisdiction under Article 227 of the Constitution of India to set aside that order. 

14. Accordingly, the O.P.(FC) is allowed. The order dated 21.2.2012 in I.A.No.1360 of 2011 and 1361 of 2011 is set aside. We also set aside the order dated 18.6.2009 passed by the Family Court and restore the Original Petition to file. It is made clear that if all the other formalities are complied with, the presence of the parties is not required and their affidavit would be sufficient, in the facts of the present case.

Registry will forward a copy of the judgment to the Rule Committee. 

K.T.SANKARAN JUDGE 

M.L.JOSEPH FRANCIS JUDGE 

csl 

(2012) 258 KLR 168 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS 

WEDNESDAY, THE 27TH DAY OF JUNE 2012/6TH ASHADHA 1934 

OP (FC).No. 70 of 2011 (R) 

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C.M.P.NO.748/2010 IN MC.141/2008 of FAMILY COURT,KASARAGOD 

PETITIONER: 

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SUBAIR.K., AGED 36 YEARS, S/O.MOIDU, PAZHAYAKADAPPURAM, POST KANHANGAD SOUTH HOSDURG TALUK, KASARAGOD DISTRICT REP BY POWER OF ATTORNEY KC BASHEER, AGED 30 YEARS S/O.ISMAIL PAZHAYAKADAPURAM. 

BY ADV. SRI.SURESH KUMAR KODOTH 

RESPONDENT(S): 

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1. ASMA, AGED 34 YEARS, RESIDING AT PAZHAYAKADAPPURAM, KANHANGAD SOUTH PO, HOSDURG TALUK KASARAGOD DISTRICT 673 213. 

2. SUMAIYA.K., AGED 16 YEARS, MINOR REPRESENTED BY HER MOTHER, FIRST RESPONDENT HEREIN. 

3. SUMEERA, AGED 13 YEARS, MINOR REPRESENTED BY HER MOTHER, FIRST RESPODENT HEREIN. 

4. SUHAIRA, AGED 8 YEARS, MINOR REPRESENTED BY HER MOTHER, FIRST RESPONDENT HEREIN.  

BY ADV. SRI.SADER E.REAZ BY ADV. SRI.K.I.ABDUL RASHEED, ADDL.D.G.P. ADV.JENNIS STEPHEN, AMICUS CURIAE ADV.K.P.SUDHEER,AMICUS CURIAE 

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 31.5.2012, THE COURT ON 27-06-2012 DELIVERED THE FOLLOWING:

A P P E N D I X 

PETITIONER'S EXHIBITS : 

• EXT.P1 : TRUE COPY OF THE ORDER DT. 13.10.2010 IN CMP NO.748/2010 IN MC NO.141/2008 OF THE FAMILY COURT, KASARAGOD. 
• EXT.P2 : TRUE COPY OF THE POWER OF ATTORNEY. 
• EXT.P3 : CERTIFIED COPY OF THE ORDER DT. 28.2.2009. 
• EXT.P4 : TRUE COPY OF THE JUDGMENT DT. 18.3.2010 IN RPFC NO.263/2009. 
• EXT.P5 : TRUE COPY OF THE APPLICATION FILED FOR AMENDMENT. (TRUE COPY) 

C.R. 

K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. 

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O.P.(FC) No.70 of 2011 

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Dated 27th June, 2012. 

Head Note:-

Criminal Procedure Code, 1973 - Sections 125 and 127 - Amendment sought for to enhance the claim of maintenance - Whether Proper? 

Held:- Section 127 Cr.P.C. empowers the Magistrate to alter or modify the order of maintenance on account of (i) change in the circumstances of the party paying or receiving maintenance or (ii) any decision of a Civil Court. The party entitled to alteration of orders can always move the Magistrate when there is a change of circumstance. If, during the pendency of proceedings under Section 125 Cr.P.C., there is a change in the circumstance, which entitles the petitioner to claim enhanced maintenance and for that purpose, the amendment petition is filed for enhanced quantum of maintenance already claimed, we are of the view that there is no prohibition in allowing that amendment petition. Since there has been no specific prohibition in the Cr.P.C. for allowing the petition for amendment in the proceedings under Chapter IX and as such, the Family Court cannot be said to have committed any jurisdictional error in allowing the amendment sought for by the petitioners in the M.C. proceedings. Moreover, there is no restriction in the remand order of this Court prohibiting amendment of the petition. Both parties will get ample opportunity to substantiate their contentions by adducing further evidence. Therefore, no prejudice will be caused to the petitioner in this Original Petition (Family Court) by allowing the amendment. 

M.L.Joseph Francis, J. 

This Original Petition (Family Court), under Article 227 of the Constitution of India, is filed by the respondent in C.M.P.No.748/10 in M.C.141/2008 on the file of the Family Court, Kasaragod. Respondents 1 to 4 herein were the petitioners in that C.M.P. 

2. The facts of the case are briefly as follows : 

Respondents 1 to 4 herein, being the wife and minor children of the petitioner, were the petitioners in M.C.141/08 on the file of the Family Court, Kasaragod. The said proceedings were initiated by them against the petitioner herein, claiming maintenance under Section 125 of the Criminal Procedure Code, 1973 (for short, 'Cr.P.C.'). In that M.C., the petitioners therein claimed Rs.4,000/- per month, as maintenance. The respondent in the M.C. filed counter. PW1 and RW1 were examined and Ext.A1 was marked before the Family Court. The respondent offered to pay maintenance at the rate of Rs.1,500/- per month each to the first and 4th petitioners. The Family Court observed that the second and third petitioners are with the respondent and they are looked after by him. Accepting the offer of the respondent, the Family Court allowed the M.C. in part and the respondent was directed to provide maintenance to the 1st and 4th petitioners at the rate of Rs.1,500/- per month each from the date of the order, i.e., 28.2.2009. Against the said order, the petitioners 1 and 4 filed R.P.(FC) No.263/09 before this Court and this Court, as per judgment dated 18.3.2010 set aside the order and remitted the matter back to the Family Court for fresh consideration, after affording opportunity to both sides to adduce documentary as well as oral evidence in support of their respective contentions and to dispose of the matter in accordance with law. As an interim measure, this Court directed the respondent to continue to pay the amount awarded by the Family Court as maintenance, at the rate of Rs.1,500/- per month each to the 1st and 4th petitioners, till a final decision is taken. After the remand, the petitioners filed C.M.P.748/10 before the Family Court, under Order VI Rule 17 of the Civil Procedure Code to amend the M.C. petition. The amendment sought for was to enhance the claim of maintenance, from Rs.4,000/- to Rs.20,000/- per month. That petition was allowed by the Family Court, as per order dated 13.10.2010. It is stated in the order that the fact that the enhanced claim was not put forward even in the R.P.(FC) before this Court, is not a ground to reject the prayer. It was also stated in the order that quoting of the provision as Order 6 Rule 17 CPC in a proceeding under Section 125(1) Cr.P.C. is not a ground to refuse the relief. Since the parties need not be driven to another round of litigation, in the interests of justice, that petition was allowed. Against that order, the respondent in the C.M.P. filed this O.P.(FC). 

3. The main prayer in this Original Petition (Family Court) is to set aside the order dated 13.10.2010 in C.M.P.No.748/2010 of the Family Court. 

4. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Additional Director General of Prosecutions Adv.Sri.K.I.Abdul Rasheed, Adv.Sri.K.P.Sudheer and Adv.Sri.Jennis Stephen assisted this Court as amicus curiae. 

5. The learned counsel for the petitioner submitted that Order 6 Rule 17 of the Civil Procedure Code cannot be invoked in an application filed under Section 125 Cr.P.C. and that Cr.P.C. does not contemplate an application for amendment. The learned counsel for the petitioner submitted that since the case is remanded to the Family Court, the Family Court has no jurisdiction to allow the amendment of the petition in the absence of permission of this Court in the remand order. The learned counsel for the respondents supported the order under challenge. 

6. The learned Advocates, who assisted this Court as amicus curiae cited various authorities to show that there is no illegality in the order under challenge. 

7. The main object behind the enactment of the Family Courts Act, 1984 (for short, 'the Act') is the establishment of Family Courts to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. 

8. Under Section 2(d) of the Family Courts Act, "Family Court" means, a Court established under Section 3 of the Act. Section 3 of the Act states that for the purpose of exercising the jurisdiction and powers conferred on a Family Court by the Act, the State Government, after consultation with the High Court and by notification shall establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court. 

9. Section 7 is the provision which defines or confers the jurisdiction on the Family Court which reads as follows: 

7. Jurisdiction - (1) Subject to the other provision of this Act, a Family Court shall 

(i) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and 

(ii) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. 

Explanation - The suits and proceedings referred to in this Sub- section are suits and proceedings of the following nature, namely - 

(a) a suit or proceedings between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; 

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; 

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; 

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship: 

(e) a suit or proceeding for a declaration as to the legitimacy of any person: 

(f) a suit or proceeding for maintenance 

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. 

(2) Subject to the other provisions of this Act, a Family Court shall have and exercise 

(i) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure 1973 (2 of 1974); and 

(ii) such other jurisdiction as may be conferred on it by any other enactment. 

10. Section 8 excludes the jurisdiction of all other Courts to deal with all such matters in respect of which jurisdiction has been conferred on the Family Court under the Act. It also provides that every suit or proceeding of the nature referred to in Section 7 will stand transferred to the Family Court wherever a Family Court is established. Section 10 prescribes the procedure to be followed by the Family Courts. 

11. It is thus: 

10. Procedure generally - (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. 

(2) Subject to the other provisions of this Act and the rules, the provisions of the code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. 

Section 18(2) specifically provides that an order passed by the Family Court under Chapter IX of Cr.P.C. shall be executed in the manner prescribed for the execution of such order by that Code, viz., Criminal Procedure Code. Rule 3 of the Family Courts (Kerala) Rules, 1989 provides that all proceedings instituted before Family Court shall be by way of petition, however, in respect of application under Chapter IX of Cr.P.C., the provisions of that Code will apply. 

12. A perusal of the relevant provisions of the Act would clearly show that Family Court is a court established with jurisdiction of different nature. Jurisdiction exercisable by the District Court and other Subordinate Civil Courts is to be exercised in accordance with the Code of Civil Procedure and jurisdiction exercisable by the Magistrates - a Criminal Court as per Section 6 of the Code of Criminal Procedure, under Chapter 9 of the Code of Criminal Procedure is to be exercised in accordance with the provisions of that Code. 

13. A Constitution Bench of the Supreme Court, in the decision reported in Narayan Row v. Ishwarlal (AIR 1965 SC 1818) defined the two expressions, 'civil proceedings' and 'criminal proceedings', as follows : 

"......The expression 'civil proceeding' is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed...."

The provisions of Chapter IX of the Cr.P.C. are provisions specifically incorporated into the Code with the aim of preventing vagrancy. Going by the observations of the Supreme Court, it has to be held that a proceeding under Section 125 Cr.P.C. is a criminal proceeding, even though it may not be a proceeding initiated with respect to an offence and with a view to get the respondent punished for an offence. Keeping in view of the above decision and the provisions of the Act already mentioned, a Full Bench of this Court, in the decision reported in Satyabhama v. Ramachandran [1997(2) KLT 503 (FB)] held that the Family Court acts as a Criminal Court and not as a Civil Court while disposing of applications filed under Section 125 of the Cr.P.C. in exercise of its jurisdiction under Section 7(2)(i) of the Act. 

14. Following that Full Bench decision of this Court, another Full Bench of this Court in the decision reported in Peter v. Sara [2006(4) KLT 219 (FB)] held that proceedings under Section 125 Cr.P.C. for maintenance before Family Court is criminal in nature. In view of the above decisions, there cannot be any doubt that in a proceedings under Section 125 Cr.P.C. before the Family Court, the provisions of Cr.P.C. would apply. Therefore, the provisions under Order VI Rule 17 C.P.C. cannot be made applicable for amendment of a petition in a proceeding under Section 125 of the Cr.P.C. 

15. The 2nd proviso to Section 125 of Cr.P.C. for grant of interim maintenance during the pendency of proceedings was inserted in the Cr.P.C. by the Criminal Procedure Code Amendment Act, 2001 (Act 50 of 2001) which came into effect from 24.9.2001. Before that amendment, there was no provision in Section 125 Cr.P.C. for granting interim maintenance. 

16. In the decision reported in Smt.Savitri v. Govind Singh Rawat (1985(4) SCC 337), it was held : 

"It is true that there is no express provision in the Code which authorises a Magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order."

In paragraph 5 of that decision, it was further observed : 

Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil Court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties. Chapter IX of the Code does not in reality create any serious new obligation unknown to Indian social life. 

In paragraph 6, it was further held : 

Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. 

17. In the decision reported in Shail Kumari Devi and another v. Krishan Bhagwan Pathak [(2008)9 SCC 632], at paragraph 22, it was held : 

So far as 'interim' maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make such order and direct payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had 'implied power' to make such order. 

18. In the present case, had the Family Court dismissed the petition for amendment, petitioners could have withdrawn their original application under Section 125 of the Cr.P.C. or allowed the same to be dismissed for default and the petitioners could have filed a second application for maintenance under Section 125 Cr.P.C. claiming a higher amount as maintenance and this procedure would only have entailed further lapse of time and incurring further costs. 

19. Section 127 Cr.P.C. empowers the Magistrate to alter or modify the order of maintenance on account of (i) change in the circumstances of the party paying or receiving maintenance or (ii) any decision of a Civil Court. The party entitled to alteration of orders can always move the Magistrate when there is a change of circumstance. If, during the pendency of proceedings under Section 125 Cr.P.C., there is a change in the circumstance, which entitles the petitioner to claim enhanced maintenance and for that purpose, the amendment petition is filed for enhanced quantum of maintenance already claimed, we are of the view that there is no prohibition in allowing that amendment petition. Since there has been no specific prohibition in the Cr.P.C. for allowing the petition for amendment in the proceedings under Chapter IX and as such, the Family Court cannot be said to have committed any jurisdictional error in allowing the amendment sought for by the petitioners in the M.C. proceedings. Moreover, there is no restriction in the remand order of this Court prohibiting amendment of the petition. Both parties will get ample opportunity to substantiate their contentions by adducing further evidence. Therefore, no prejudice will be caused to the petitioner in this Original Petition (Family Court) by allowing the amendment. Accordingly, this O.P.(FC) is dismissed, as it is without any merits. We record our deep appreciation for the valuable assistance rendered by all the counsel, including the amicus curiae. 

Sd/- K.T.SANKARAN, JUDGE. Sd/- 

M.L.JOSEPH FRANCIS, JUDGE. 

tgs (true copy) 

(2012) 251 KLR 537

 IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS 

THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934 

OP (FC).No. 1241 of 2012 (R) 

---------------------------- 

M.P.950/11 IN M.P.834/11 IN MC.135/2011 of FAMILY COURT,ERNAKULAM 

PETITIONER(S)/PETITIONER/RESPONDENT IN MC:: 

------------------------------------------ 

C.C.ALEXANDER,, AGED 51 YEARS S/O CHACKO, PALAKKATHADATHIL HOUSE NEAR ST. THOMAS CHURCH, ARONOOTTIMANGALAM P.O. KADUTHURUTHY, KOTTAYAM DISTRICT. 

BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.A.KRISHNAN SRI.GILBERT GEORGE CORREYA SMT.O.V.BINDU SRI.NISHIL.P.S. SRI.J.VIMAL 

RESPONDENTS/RESPONDENTSIN M.C.:: 

---------------------------------------------- 

1. JACOB ANTONY PALAKKATHADATHI @ AMITH, S/O. C.C. ALEXANDER (MINOR) REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN C.K. OMANAKKUNJAMMA @ ANGEL ROSE D/O. LATE VIJAYAPPA PANICKER, SOWPARNIKA KRPS 182 A, RAPHEL MASTER LANE, PIONEER JUNCTION KANNADIKKADAVU, MARADU, KOCHI.682304. 

2. JACOB SEBASTIAN PALAKKATHADATHIL @ AMAR, S/O. C.C. ALEXANDER (MINOR) REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN C.K. OMANAKKUNJAMMA @ ANGEL ROSE D/O. LATE VIJAYAPPA PANICKER, SOWPARNIKA KRPS 182 A, RAPHEL MASTER LANE, PIONEER JUNCTION KANNADIKKADAVU, MARADU, KOCHI.682304. 

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

APPENDIX 

PETITIONER'S EXHIBITS: 

• EXT.P1 : TRUE COPY OF THE M.C.135 OF 2011 FILED BY THE RESPONDENTS HEREIN BEFORE THE FAMILY COURT ERNAKULAM DT.3.5.11 
• EXT.P2 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN IN M.C.135 OF 11 BEFORE THE FC ERNAKULAM DT.14.10.11 
• EXT.P3 : TRUE COPY OF THE PETITION M.P.834/11 FILED BY THE RESPONDENTS HEREIN BEFORE THE FAMILY COURT, ERNAKULAM DT.29.12.11 
• EXT.P4 : TRUE COPY OF THE PETITION M.P.950/11 FILED BEFORE THE FAMILY COURT, ERNAKULAM FOR EARLY HEARING OF EXT.P3 PETITION DT.18.10.11 
• EXT.P5 : TRUE COPY OF COUNTER AFIDAVIT FILED BY THE PETITIONER HEREIN TO EXT.P3 PETITION DT.19.1.12 
• EXT.P6 : TRUE COPY OF THE ORDER IN M.P.950/11 IN M.P.834/11 IN M.C.135/11 OF THE FAMILY COURT, ERNAKULAM DT.19.1.12. 

RESPONDENTS' EXHIBITS: 

NIL // TRUE COPY // 

C.R. 

K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - 

O.P.(F.C.) No.1241 of 2012 R 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

Dated this the 12th day of April, 2012 

Head Note:-

Family Courts Act, 1984 - Section 7(1) Explanation (f) - Code of Criminal Procedure, 1973 - Section 125 -  Maintenance - There is no petition filed for declaration of legitimacy or illegitimacy - Petitioner submit that the Court would have to give a declaration of illegitimacy indirectly, which is impermissible - Held, Family Court  have the power to decide the question of paternity incidentally.

J U D G M E N T 

K.M. Joseph J., 

The petitioner is the respondent in M.C. No.135 of 2011, which was filed before the Family Court, Ernakulam by two children, who are twins represented by their mother. They filed the petition invoking Section 125 of Code of Criminal Procedure and Section 7(1) Explanation (f) of the Family Courts Act, 1984 (hereinafter referred to as 'the Act'). The prayer is one for maintenance. 

2. Briefly put the case of the respondents before the Family Court is as follows. The petitioner herein was a business associate of the earlier husband of mother of the respondents. The petitioner prevailed upon the respondents' mother by making her believe that there is no valid marriage between her and her husband and he may desert the respondents' mother etc. Thereafter the petitioner showed deep affection and love towards the respondents' mother and started caring for the respondents' mother very much and looking after her affairs very keenly. Believing the petitioner's words, it is stated, that the petitioner is a bachelor and millionaire with lucrative business having branches in foreign countries, the petitioner and the mother of the respondents were living as husband and wife without the knowledge of the husband of the respondents' mother. Thus, the two twin children were born. There is a refusal by the petitioner to meet the requirements and expenses of the respondents since October 2010 despite demand. The maintenance claimed by the respondents is at the rate of Rs.25,000/- each per month. 

3. Ext.P2 is the counter affidavit filed by the petitioner. He denied the allegations. Ext.P3 is the petition filed by the respondents with a prayer to refer the petitioner for D.N.A. test to ascertain whether the petitioner is the biological father of the respondents/children. It appears that no counter affidavit is filed against it and the Family Court, by Ext.P6, which is impugned before us, ordered as follows: 

"Heard both sides. Petition is filed for sending the petitioner/husband and the minor children whose names mentioned herein, for DNA test to prove that whether the petitioner himself is the biological father of the said children. No objection is seen filed. But it is argued that same petition has been filed in a declamatory suit before the Sub Court, Ernakulam and it is pending under consideration. Except that, no other serious objection is received by the respondent/ petitioner in O.P. Considering the reason that the paternity of the children in question, I feel that the petition need be allowed in the ends of justice. I do so. Hence, this M.P. stands allowed. Take further steps to conduct the D.N.A. test in Rajeev Gandhi Institute of Science and Technology. Remit the fee within two weeks. The petitioner/mother will produce the children for the purpose, as and when required. Call on 3.2.2012"

4. We heard learned counsel for the petitioner. 

5. Learned counsel for the petitioner would impugn the order on the ground that the M.C. itself is not maintainable before the Family Court. According to him, on the very allegations found in the petition filed by the respondents, they are the children born to the petitioner out of illegitimate relationship during the marriage between the respondents' mother and another. Therefore, according to him, the petition itself is not maintainable before the Family Court. Learned counsel for the petitioner would refer us to the judgment of the Apex Court reported in Renubala Moharana and another v. Mina Mohanty and others (2004(4) SCC 215) and also judgment rendered by the Division Bench of this Court reported in Bharat Kumar v. Selma Mini and another (2007(1) ILR 696). 

6. As far as the judgment of the Apex Court reported in Renubala Moharana v. Mina Mohanty is concerned, that was a case where the petitioner/appellant before the Apex Court had sought the following reliefs: 

"(a) To declare that late Samuel Maharana, nicknamed as "Gulu" is the father of the minor child "Pupun" alias "Pallav Pratik Maharana" and not Kanhu Ch. Pattnaik, 2nd respondent and the birth certificate obtained obtained by the 1st respondent is not valid as the same is based on false information. Only the DNA fingerprint will prove the truth of 1st respondent. 

(b) To appoint the petitioners as guardians of the person of the said minor child. 

(c) To direct the respondents to deliver the custody of the child to the petitioners within such period as deemed fit by the Court." 

7. The facts of the said case have been set out as hereunder: 

"According to the petitioners, their son, named Samuel Maharana developed intimacy with the first respondent Mina Mohanty and both of them lived together in the departmental quarters allotted to Samuel Maharana. On account of their cohabitation, a male child was born to them on 25.1.1991 Samuel Maharana and the first respondent named the child as Pallav Pratik Maharana alias Pupun. However, the first respondent got the birth certificate issued by the hospital showing the child's name as Partha Sarathi Pattnaik and Kanhu Charan Pattnaik as his father. It is alleged that the first respondent Mina Mohanty, though married to the second respondent Kanhu Charan Pattnaik, they were living separately from 1987. Samuel Maharana died on 7.11.1994 "under mysterious circumstances". After the death of Samuel, the second respondent executed a document accepting that Pupun was born through Samuel and disclaiming his parentage. After some time, the custody of the child was entrusted to the appellants and 1st respondent was frequently visiting the house of the appellants to see the child. On one such occasion i.e., 1.4.1995, the first respondent sent one of her relations to bring the child to her place with a promise to send him back on the next day. From then onwards, the child was kept out of the reach of the appellants. A notice was sent by registered on 22.9.1995 to send back the child. However, it was returned undelivered. Hence the petition was filed as aforesaid in the Family Court." 

The Family Court found that the petition is not maintainable in the light of Section 7 of the Act. It was further found that since the first respondent is the natural mother, against whom there was no adverse allegation, there was no need to appoint any other person as guardian. The High Court agreed in respect of the findings of the Family Court that the petition is not maintainable. But the High Court reversed the order insofar as the petition related to the custody of the child. It was found that the prayer for guardianship and custody is entertainable by the Family Court under Explanation (g) to Section 7(1) of the Act. The Apex Court held as follows: 

"The view taken by the High Court as regards the first prayer has been assailed before us. Under Section 7 (1) read with clause (e) of the Explanation, a suit or proceeding for a declaration "as to legitimacy of any person" is within the jurisdiction of the Family Court. According to the appellants, the child was born on account of extramarital relationship of 1st respondent with their son, the late Samuel Maharana. Accepting the case of the appellants, the child cannot obviously be treated as a legitimate child of Samuel and Mina Mohanty (R1). The questions of status of the child in relation to the parties to the petition can be incidentally gone into by the Family Court if necessary while deciding the guardianship petition. That liberty has been granted to the Family Court. However, as rightly held by the Family Court and the High Court, the declaratory reliefs as regards the illegitimacy of the child cannot be granted. In effect that is what the appellants want under prayer (a)" 

8. In the case before us, there is no prayer for declaration, as was sought for in the case before the Apex Court. It is pertinent to note that the Apex Court itself held that the question of the status of the child in relation to the parties can be incidentally gone into by the Family Court, while deciding the guardianship petition. The decision is that the declaratory relief, as regards the illegitimacy of the child, cannot be granted. It is further noted that was the relief which the appellants prayed for under prayer (a). 

9. As far as the judgment of the Division Bench of this Court (Bharat Kumar v. Selma Mini and another) is concerned, the first respondent before the Family Court was the petitioner before the High Court. The relief claimed before the Family Court was follows: 

"Therefore, it is humbly prayed that this Court be pleased to declare that Bharat Kumar K. Palicha (the 1st respondent) is the father of Bhagat Kumar B., aged 3 years (2nd petitioner) delivered by Selma Mini (1st petitioner) on 9th day of August 2002 at Lakshmi Hospital, Diwans Road, Ernakulam". 

The facts of the case in Bharat Kumar v. Selma Mini and another, was as follows: 

The second respondent was the husband of the first respondent at the relevant time. According to the first respondent she had developed extramarital relationship with the petitioner and the child Bhagat Kumar was born in that relationship. Hence the petition was for declaration that the petitioner was the father of the said child. The contention of the petitioner was that such a petition for deciding the paternity of a person is not maintainable before the Family Court, without a matrimonial cause. 

10. The Division Bench proceeded to extract Section 7 and held that the Court was concerned with Clause (e) to the Explanation of Section 7(1) of the Act, which relates to declaration to the legitimacy of any person. Thereafter the Court held as follows: 

"The jurisdiction conferred on the Family Court is settlement of issues arising out of matrimonial causes. Matrimonial cause is a cause relating to rights of marriage between husband and wife. Paternity and legitimacy are two different concepts. Paternity by itself may not, in all circumstances, be a matrimonial cause, as in the instant case. Paternity is the state or fact of being the father of a particular child. Legitimacy of a child is its right to be officially accepted as such. Admittedly the petitioner is not the husband of the first respondent. According to the 1st respondent she had only extramarital relationship with the petitioner. The second respondent herein is the husband. He did not have a case regarding legitimacy of the child. The Family Court gets jurisdiction to go into the question of legitimacy of the child's The Family Court gets jurisdiction to go into the question of legitimacy of any person only if such a question arises in a matrimonial cause. An investigation on the paternity of a person is required only when the question of legitimacy of the person is to be decided by the Family Court. That question arises only out of a matrimonial cause where there is a claim on matrimonial relationship out of which the said person is born. It may also arise in situations covered by explanation (g) to Section 7(1), in the case of guardianship, as held by the Supreme Court in Renubala Moharana and another v. Mina Mohanty. It was also held by the Supreme Court in the said decision that the Family Court cannot entertain any proceedings for declaration as to the legitimacy of any person without any claim on marital relationship. In the case before us the petitioner before the Family Court, the first respondent herein, does not have a case of marital relationship with the petitioner herein. The case admittedly is of extramarital relationship. The dispute is with regard to the paternity of a child born in the said extramarital relationship. That is not a matter falling within the jurisdiction of the Family Court. Paternity of a child can be gone into as incidental to a dispute on the legitimacy arising only out of a claim on marital relationship between the parties. Such a question also may incidentally arise in deciding a guardianship petition. No such situation arises in this case." 

Then, on the said basis the Court proceeded to allow the Writ Petition and struck off the O.P. from the file of Family Court. 

11. Learned counsel for the petitioner placed considerable emphasis on the opening words of para 4, which we have extracted above and emphasised. He would emphasise that there must be a matrimonial relationship, without which the jurisdiction under Section 7 of the Family Court Act cannot be exercised. He would submit that it may be true that a question of paternity can be gone into in a proceeding for guardianship as was held by the Apex Court. In this case, he would submit that the Court would have to give a declaration of illegitimacy indirectly, which is impermissible. 

12. We are afraid that there is no merit in the contention of the petitioner. Section 7 of the Family Courts Act reads as follows: 

"7. Jurisdiction: (1) Subject to the other provisions of this Act, A Family Court shall.-  

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation: and 

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. 

Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely,- 

(a) suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage. 

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person. 

c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. 

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship. 

(e) a suit or proceeding for a declaration as to the legitimacy of any person 

(f) a suit or proceeding for maintenance 

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. 

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise.- 

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order of maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973(2 of 1974) and (b) such other jurisdiction as may be conferred on it by any other enactment." 

13. We are, in this case, concerned with a petition filed under Section 125 of the Code of Criminal Procedure read with Section 7(f). A perusal of the Section 7 of the Act leaves us in no doubt that it is the Family Court which has to exercise jurisdiction under chapter IX relating to the order for maintenance of wife, children and parents. The jurisdiction which has to be exercised by the Magistrate of the First Class cannot be exercised by a Civil Court. Therefore, the only court which can decide a case under Section 125 of the Code of Criminal Procedure is the Family Court at any place where the Family Court functions. Therefore in this case, it is the Family Court which alone can decide the claim for maintenance. As we have noticed the prayer in the petition filed by the respondents under Section 125 of the Code of Criminal Procedure, is only one for maintenance and that there is no petition filed for declaration of legitimacy or illegitimacy. 

14. The only Court, which has the power to entertain the application as filed is the Family Court. We may also note that in the decision of the Division Bench of this Court referred above, it is true, that the Court has made observations which we have emphasised. The Court also after referring to the Apex Court judgment held that the paternity of a child can be gone into as incidental to a dispute on the legitimacy arising only out of a claim on marital relationship between the parties. But the court also held that such a question also may incidentally arise in deciding a guardianship petition. It is true that as held by the Apex Court, a petition cannot be maintained before the Family Court in a case where allegation is one that there is an illegitimate relationship. But when there is a petition for guardianship or there is a case for maintenance under Section 125 of Code of Civil Procedure or under Section 7 of the Family Court Act, the Family Court would indeed have the power to entertain such applications. It would also have the power to incidentally decide the question of paternity. Paternity and legitimacy are distinct concepts, as held by the Division Bench. We may notice that Section 125 of the Code of Criminal Procedure entitles an illegitimate minor child also to seek maintenance. The emphasis is on paternity and not on legitimacy, in a proceeding under Section 125 brought by an illegitimate child. Since the claim is for maintenance alone and the Family Court, no doubt, has the power to decide the issue as to paternity, and the present order of the Family Court is only by way of assisting it to decide the question relating to paternity, we are of the view that there is no merit in the contention of the petitioner. 

15. We would think that the observations which were made by the Division Bench essentially flew from the facts of the case which related to declaration of illegitimacy. In such circumstances, we think that it is not necessary for us to refer the matter to Full Bench, particularly in the light of the judgment of the Apex Court. In such circumstances, we see there is no merit in the Original Petition and accordingly it is dismissed. 

Sd/- K.M. JOSEPH, (JUDGE) Sd/- 

M. L. JOSEPH FRANCIS, (JUDGE) dl/ 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.M. JOSEPH AND M.L. JOSEPH FRANCIS, JJ.

O.P. (FC) No. 93 of 2012

Dated this the 10^th day of January, 2012

Hindu Marriage Act, 1955 – Section 13B - Family Courts Act, 1984 – Section 7 - Divorce by mutual consent - Mutual consent must be there not only at the time of filing the petition but also at the time of decision is made under sub-S.2. Under sub-S.2 the Court on being satisfied, after hearing the parties and after making inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, is to pass orders.

For Petitioner: 

• J. JAYAKUMAR

J U D G M E N T

K.M. Joseph, J.

1. Petitioner is the husband of the respondent. Petitioner filed a petition under Sec. 13(ia), Sec. 13(1)(iii) of the Hindu Marriage Act for dissolution of marriage under Ext. P1. Ext. P2 is the petition filed by the respondent for recovery of gold and Ext. P3 is M.C. filed by the respondent for maintenance. The respondent also filed a transfer petition which was allowed. Subsequently it is stated that the parties have amicably settled the entire issues and decided to exchange their belongings. Thereafter they filed compromise petition which is produced as Ext. P4. It is stated that they have also filed Ext. P5 which is a joint petition for divorce under Sec. 13B of the Hindu Marriage Act. The petition is allegedly filed in June, 2011. It appears that the Family Court, Kottarakkara had posted the OP for disposal on 27-12-2011. On 27-12-2011 both the petitioner and respondent were present before the Family Court for giving depositions in accordance with Ext. P5 petition, it is stated. But, the Family Court directed the parties for counseling on the same day and posted the case for awaiting counseling report on 06-01-2012. It is further stated that both the parties filed affidavit in support of Ext. P5 petition and jointly prayed for divorce. But the matter is posted as call on to 25-01-2012. It is stated that the petitioner has got a job visa for employment in Saudi Arabia and he wants to join duty on or before 22-01-2012. The employment visa is stamped in his passport. Ext. P6 is the relevant page of the passport. The prayer in the original petition is to direct the Family Court, Kottarakkara to dispose of Ext. P5 petition within a time frame.

We called for a report. The report reads as follows:

“As directed, contacted the Family Court, Kottarakkara. The learned Judge, after verification, informed that since counselling has not been successful, OP No. 604/2011 is posted for evidence to 25-01-2012. If both the parties co - operate, the original petition can be disposed of on 25-01-2012 itself. The learned Judge further informed that at any rate he will try to dispose of the original petition before the end of January, 2012.”

Learned counsel for the petitioner would point out that actually counseling took place earlier. At any rate on 27-12-2011 the parties were referred for counseling again. Such a procedure is not contemplated, he points out. It is submitted by the learned counsel that subsequently the report has also come that there is no possibility of the marriage being saved. Still the Court posted the case again to 25-01-2012. Learned counsel for the petitioner points out that the petitioner wants to join employment before 22-01-2012. Sec. 13B of the Hindu Marriage Act no doubt contemplates petition for divorce by mutual consent. Mutual consent must be there not only at the time of filing the petition but also at the time of decision is made under sub-S.2. Under sub-S.2 the Court on being satisfied, after hearing the parties and after making inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, is to pass orders. In this case, it is pointed out that, both the parties were present on 27-12-2011 and they pressed for divorce. Subsequently a report is also apparently filed by the Counsellor that the marriage cannot be repaired. In such circumstances, we feel that this is a case where we must direct the Family Court to pass orders at the earliest. In this connection we direct that if the petitioner moves a petition to advance the case from 25-01-2012 to an early date with copy served to the respondent, the Family Court will consider the same in the context of the facts and law and pass orders in the interest of justice. The Original Petition is disposed of as above.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.M. JOSEPH AND M.L. JOSEPH FRANCIS, JJ.

O.P. (FC) No. 3473 of 2011

Dated this the 6^th Day of January, 2012

Head Note:-

Family Courts Act, 1984 – Sec. 13B (2) – the rationale behind the waiting period appears to be that the parties are given an opportunity to reconsider their original decision and to save the institution of marriage which the legislature holds sufficiently dear to insist on such waiting period.

For Petitioners:-

• P.B. SAHASRANAMAN
• T.S. HARIKUMAR
• K. JAGADEESH

J U D G M E N T

K.M. Joseph, J.

1. An interesting question has been raised by the petitioners, arising from the seemingly inflexible mandate contained in sub-Section (2) of Sec. 13B of the Hindu Marriage Act, 1955 (for short, 'the Act'), requiring a waiting period of six months after the filing of the joint petition seeking dissolution of marriage by consent.

2. The petitioners, husband and wife filed O.P. No.1611 of 2011 before the Family Court, Thrissur on 19.08.2011 under Sec. 13B of the Act. They also filed Ext. P2 petition under Sec. 151 of the Code of Civil Procedure (for short, 'the Code'), praying that the Court may dispense with the six months' time to dispose of the joint petition. The Family Court, Thrissur found that there is no provision to waive the statutory period of six months and dismissed the petition. Hence, this O.P. (FC) filed under Art.227 of the Constitution of India, wherein the prayer is to direct the Family Court, Thrissur to pass appropriate final orders on the joint petition filed under Sec. 13B of the Act immediately, at any rate, within two weeks from the date of the petition.

3. We heard Sri. P. B. Sahasranaman, learned counsel for the petitioners.

4. The contention of Sri. Sahasranaman runs as follows : Sec. 13B of the Act contains two parts; viz., Sub-Section (1) and Sub-Section (2). We extract Sec. 13 B:

"13B. Divorce by mutual consent. - (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. 

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-Section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

5. According to him, Sec. 13B contains substantial right of the parties to approach the Court seeking dissolution of marriage by mutual consent. He would point out that Sec. 13B speaks about a petition being filed before the District Court. The argument is that while sub-Section (1) of Sec. 13B will apply even after the promulgation of the Family Courts Act, 1984, when the matter comes up before the Family Court in a petition under Sec. 13B, sub-Section (2) will not restrain the power of the Family Court otherwise available to it to pass appropriate orders in accordance with the powers available to it under the Family Courts Act. He would refer to the Preamble of the said Act, which reads as follows :

"An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith."

He would emphasise that the legislature was concerned to bring about a speedy settlement of disputes, as is evident from the wording of the preamble. He points out Sec. 4 of the Family Court Act, which deals with the appointment of judges of the Family Court. Sub Section (4) tends to indicate that there is a change brought about by the enactment of the Family Courts Act, he contends. Sub-Section (4) of Sec. 4 of the Family Courts Act reads as follows :

"4. Appointment of Judges. - 

xxxx xxxx xxxx 

xxxx xxxx xxxx 

(4) In selecting persons for appointment as Judges, - 

(a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and 

(b) preference shall be given to women."

Then, he would invite our attention to Sec. 8 of the Family Courts Act. Sec. 8 of the Family Courts Act reads as follows :

"8. Exclusion of jurisdiction and pending proceedings. - Where a Family Court has been established for any area, - 

(a) no District Court or any subordinate Civil Court referred to in sub-Section (1) of Sec. 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-Section; 

(b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); 

(c) every suit or proceeding of the nature referred to in the Explanation to sub-Section (1) of Sec. 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), - 

(i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate Court referred to in that sub-Section or, as the case may be, before any Magistrate under the said Code; and 

(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established."

Therefore, according to him, in a case where the Family Court is established, sub-Section (2) of Sec. 13B of the Act would not apply and in such cases, it is to the other provisions of the Family Courts Act we must turn to, particularly, Sec. 9. Sec. 9, falling under Chapter IV of the Family Courts Act speaks about the procedure to be followed by the Family Court. Sec. 9 provides inter alia that an endeavour shall be made by the Family Court to persuade the parties to arrive at a settlement. Thus, the institution of counselling, with the aid of experts is countenanced. No doubt, Sec. 10 of the Family Courts Act deals with the procedure generally. Sec. 10 inter alia provides that the provisions of the Code and other provisions shall apply to the proceedings before the Family Court, subject to the other provisions in the Act and the Rules. Sub-Section (3) of Sec. 10 of the Family Courts Act reads as follows:

"10. Procedure generally. - 

xxxx xxxx xxxx 

xxxx xxxx xxxx 

(3) Nothing in sub-Section(1) or sub-Section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject - matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."

Sec.12 speaks about the assistance of medical and welfare experts. Sec. 20, the learned counsel would point out that, deals with the overriding effect of the Family Courts Act by providing that provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the said Act.

6. Learned counsel would contend that therefore, when the matter comes up before the Family Court under the Family Courts Act, there is a change from the position obtaining when the matter is dealt with by the District Court under the erstwhile regime. Right from the composition of the Family Courts Act to the procedure to be adopted by the Family Court, the Family Court is equipped to arrive at an appropriate conclusion, depending upon the facts of each case, as to the just relief to be granted. When once that is the position, the learned counsel would contend that it is not proper to apply the provisions contained in sub-Section (2) of Sec. 13B of the Act to restrain the wide amplitude of the power available to the Family Court to deal with the facts of an individual case by relaxing the six months period, which is in fact, not applicable to a case being dealt with by the Family Court.

7. We are not in a position to accept the contentions of the learned counsel for the petitioners. It is no doubt true that a central Act was enacted in the year 1984 with a view to create a separate forum to deal with family matters. After the promulgation of the Family Courts Act, in any area, where Family Court is established, it is the Family Court alone which would have jurisdiction to deal with the matters, as indicated in Sec. 7 of the Family Courts Act. At this juncture, it is necessary to refer to Sec. 7 of the Family Courts Act. Sec. 7(1) reads as follows :

"7. Jurisdiction. - (1) Subject to the other provisions of this Act, a Family Court shall - 

(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and 

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends."

The Family Courts Act really does not deal with substantive matters in relation to various aspects of the personal laws applicable to parties. They are contained in various statutory provisions or customary laws as are applicable to the parties.

8. Sec. 13B of the Act was incorporated by amendment, in the year 1976. The Family Courts Act is made in the year 1984. Sec. 13B created a new right in favour of the parties to seek dissolution of marriage by filing a petition based on consent of the parties. Sec. 13B insists that the parties must have been living separately for a period of one year prior to the date of presentation of the petition. As to what is to be done in a petition under Sec. 13B, there is no indication in Sec. 13B(1). That is why Sec. 13B(1) itself is incomplete. Life is given to Sec. 13B only when we read Sec. 13B(1) along with Sec. 13B(2). Sec. 13B(1), on the one hand creates the right to seek dissolution, as provided therein and it will not be appropriate to say that the right is contained only in Sec. 13B. When it comes to Sec. 13B(2), it part takes both of the substantive right as also the procedure. Sec. 13B(2) indicates that the parties may move not earlier than six months and not more than 18 months. Actually, the decision of the Court dissolving the marriage is to take place on the basis of the provisions contained in Sec. 13B(2). Therefore, it encompasses both the substantive right as also the procedure for the accomplishment of the said right of the parties. In other words, Sec. 13B(1) and (2) is a complete Code as to what is to be done with a case brought under Sec. 13B(1).

9. The salutary purpose that is sought to be achieved in Sec. 13B(2) is to see that the institution of marriage may be preserved, if possible. It is deliberate choice of the legislature reflecting its value judgment. Courts are expected to implement the laws made by Parliament. While it may indulge in interpretation with reference to the various rules available to it, if the language of the law admits of no other interpretation, it is no part of the Court's jurisdiction to tinker with the legislative mandate as in such circumstances, the Court will be doing violence to the separation of powers which is envisaged in the Constitution.

10. We have no doubt in our mind, that the mandate of Sec. 13B(2) admits of no exception, that is to say, there is no power to waive the waiting period of six months contained in sub-Section (2) of Sec. 13B. We are of the view that the provision contained in Sec. 13B is clearly applicable also to a case where the Family Court deals with the matter. As is evident from Sec. 9 of the Family Courts Act, it is true that in a case where the Family Court is not established, the District Court, as contemplated under the Hindu Marriage Act will continue to have jurisdiction. It is also true that where the Family Court is not established and a petition is filed under Sec. 13B, Sec. 13B(2) will apply to a proceeding under Sec. 13B. Learned counsel for the petitioners also has no complaint about Sec. 13B(2) being made applicable before the District Court. If that is so, we are unable to understand how the mandate contained in Sec. 13B(2) will not apply when the forum of the District Court is supplanted by the establishment of the Family Court in an area. Essentially what happens under the Family Courts Act is the creation of a new forum to deal with a wide spectrum of cases exclusively on the basis of the provisions of Sec. 7 of the said Act. The mere fact that there is a change in forum will not have the effect of the said forum being free to disregard the substantive provisions of the person laws applicable to the parties. In other words, when a petition is filed under Sec. 13B of the Act, be it before the District Court or before the Family Court, both Sec. 13B(1) and (2) will apply. The resultant position would be that when a petition is filed under Sec. 13B of the Act before the Family Court, necessarily, the Family Court is enjoined upon to await for a period of six months as directed in Sec. 13B(2) and then alone it can take up the matter and deal with it, as provided in Sec. 13B(2). Neither the qualifications of the judges who are appointed as Family Court judges nor the presence of experts to aid such judges nor the declaration in the preamble about the need for the speed dilute the unambiguously clear mandate in the law contained in sub-Section (2) of Sec. 13B of the Act that the married parties cannot move for dissolution of marriage except after the expiry of the period of six months. While in individual cases it may work hardship, the merit of a law cannot be decided with reference to its operation on the rights of parties in individual cases. Law by its very essence is of general application. It is meant to apply to all situations unless legislature indicates otherwise. Therefore, the complaint of the learned counsel for the petitioners that in this case, parties have been living separately for seven years, that they had three children of which two died and any further waiting will visit them with unnecessary misery, cannot be a sound argument for us to act contrary to Sec. 13B(2). That there is no power to waive the waiting period is covered by case law, of which we need only refer to the one pronounced by the Apex Court in Poonam Vs. Sumit Tanwar, (2010) 4 SCC 460. In fact, the rationale behind the waiting period appears to be that the parties are given an opportunity to reconsider their original decision and to save the institution of marriage which the legislature holds sufficiently dear to insist on such waiting period. The wording in Sec. 7(1)(a) of the Family Courts Act makes it clear that the Family Court shall have and exercise all the jurisdiction exercisable by any District Court under any law for the time being in force and it is further stated by deeming provisions contained in Sec. 7(b) of the Act that the Family Court is to be deemed to be the District Court. Therefore, Family Court is deemed to be the District Court and the jurisdiction under the Hindu Marriage Act contained in Sec. 13B is to be exercised in accordance with the jurisdiction conferred under Sec. 13B(2) also. Sec. 8 of the Family Courts Act indicates that all matters which are inter alia pending before the District Court before the establishment of such Court which are to be required to be dealt with by the Family Court and of the nature contained in the explanation are all to be transferred to the Family Court. In fact, if the argument of the petitioners is accepted, the anomalous position of a vacuum will be created. What is to be done with a petition under Sec. 13B(1) is contained in Sec. 13B(2). We may also indicate that by the amendment in 1976 even before the Family Court Act was enacted by virtue of the provisions contained in O.32A of the Code of Civil Procedure, there is a duty with the Court to make efforts for settlement (R.3). There are provisions for securing assistance of welfare experts (R.4). Upshot of the above discussion is that there is no merit in the petition and it is only to be dismissed. Ordered accordingly.