Kerala High Court
Mukundan Aged 32 Years vs Dr.Katyusha on 28 April, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 24TH DAY OF MAY 2012/3RD JYAISHTA 1934
OP (FC).No. 1495 of 2012 (R)
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AGAINST THE ORDER IN CMP NO.265/2012 IN MC 313/2010 of FAMILY COURT,
PALAKKAD DATED 28.4.2012
PETITIONER(S):
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MUKUNDAN AGED 32 YEARS
S/O.SUKUMARAN, 10/573, SREE KAILAS
KOPPAM AMSOM
PALAKKAD REPRESENTED BY POWER OF ATTORNEY SUKUMARAN.
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENT(S):
----------------------------
DR.KATYUSHA, AGED 29 YEARS
D/O.JANARDHANAN, THUPPALANKAD HOUSE, MARUTHAROAD
PALAKKAD, PIN-678 001.
R1 BY ADV. SRI.BINOY VASUDEVAN
R1 BY ADV. SRI.R.MANIKANTAN
R1 BY ADV. SMT.P.G.BABITHA
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24-05-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1- A TRUE COPY OF CMP NO.265/2012 IN MC NO.313/2010 OF THE FAMILY
COURT, PALAKKAD.
EXHIBIT P2- A TRUE COPY OF THE OBJECTION TO EXT.P1 APPLICATION.
EXHIBIT P3- A TRUE COPY OF THE COMMON ORDER DATED 10.8.2009 IN MC
NO.149/2008 AND OP NO.398/2008 OF THE FAMILY COURT, KOZHIKODE.
EXHIBIT P4- A TRUE COPY OF THE COMMON ORDER DATED 19.1.2010 IN OP
NO.405/2009 AND MC NO.565/2009 OF THE FAMILY COURT,
MALAPPURAM.
EXHIBIT P5- A TRUE COPY OF THE ORDER DATED 28.4.2012 IN CMP NO.265/2012 IN
MC NO.313/2010 OF THE FAMILY COURT, PALAKKAD.
RESPONDENTS' EXHIBITS; NIL.
TRUE COPY
PA TO JUDGE.
acd
ANTONY DOMINIC & P.D. RAJAN, JJ.
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O.P.(FC)No. 1495 of 2012
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Dated this the 24th day of May, 2013
JUDGMENT
ANTONY DOMINIC, J.
The petitioner and the respondent are husband and wife. Their relationship is strained and various proceedings are pending between them in the Family Court, Palakkad. These proceedings are O.P.No.117/2010 filed by the petitioner for divorce, M.C.No.313/2010 filed by the respondent for maintenance, O.P.No.675/2010 filed by the respondent for return of gold and O.P.No.604/2011 filed by her for return of money allegedly given at the time of marriage.
2. It appears that M.C.No.313/2010 was posted for evidence on 16/3/2012, when, on behalf of the petitioner, his power of attorney holder filed Ext.P1 application seeking joint trial of all the cases. That petition was opposed by the respondent. The Family Court considered the application and dismissed the same by Ext.P5 order. It is Ext.P5 order, which is O.P.(FC)No.1495/12 2 under challenge in this O.P. The reason stated by the Family Court is mainly that separate procedures have been laid down in the Family Court Acts in respect of proceedings governed by Code of Civil Procedure and Code of Criminal Procedure and therefore, joint trial is impermissible. In this context, the Family Court has made reference to Sections 10 and 19 of the Act to justify its conclusion.
3. We have heard the learned counsel for both sides.
4. Admittedly, the parties to the aforesaid proceedings are common. The evidence in all the cases will also be related and the witnesses are also likely to be common. Therefore, to avoid the possibility of conflicting conclusions, normally, the request for joint trial should have been accepted. However, the question is whether the request for joint trial is impermissible, in view of the provisions contained in Sections 10 and 19 of the Family Courts Act.
5. Section 10 of the Family Courts Act reads 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.O.P.(FC)No.1495/12 3
(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.
(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."
Reading of the Section shows that Sub Section (1) provides that any proceedings in the Family Court other than the proceedings under Chapter IX of the Code of Criminal Procedure will be governed by the Code of Civil Procedure. As against this, sub Section (2) states that proceedings under Chapter IX of Cr.P.C. initiated before the Family Court will be governed by the provisions of the Cr.P.C. After making these provisions, sub Section (3) has been incorporated to state that the aforesaid sub Sections (1) and (2) will not prevent a Family Court from laying down its own procedure for settlement of a suit or proceeding.
6. Coming to Section 19 of the Act, this Section provides for appeals and revisions. Sub Section 19(1) provides that notwithstanding anything contained in the C.P.C. or in the Cr.P.C. or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order of a Family O.P.(FC)No.1495/12 4 Court to the High Court both on facts and on law. Sub Section 19(4) provides revisional remedy against the orders passed in respect of matters governed by Chapter IX of Cr.P.C.
7. In our view, none of these provisions can be understood as placing an embargo on the Family court in permitting the joint trial of the different proceedings before it and in fact it was to take care of such multiply proceedings that Section 10(3) itself has been incorporated. After all object of the Act is to ensure to speedy justice in relation to issues arising out of family related disputes and therefore, the provisions of the Act should be interpreted bearing in mind such laudable objective that are sought to be achieved by the Act. Therefore, the fact that different appellate or revisional remedies have been provided only requires that if a person is aggrieved by any judgment or order, he will have to pursue his remedies as provided in Section 19 and that does not mean that Section 19 fetters the Family Courts' power to allow joint trial.
8. For these reasons, we are of the view that the order passed by the Family Court declining to consolidate M.C.313/2010 along with remaining other proceedings is untenable.
O.P.(FC)No.1495/12 5
9. The learned counsel for the respondent complained that the joint trial application itself was filed on the date when M.C.No.313/2010 was listed for evidence and that the attempt of the petitioner, who is employed abroad, is to delay the proceedings. We find some force in his complaint and therefore, we are inclined to think that the Family Court should take expeditious action for the disposal off the proceedings.
10. We, therefore, set aside Ext.P5 order passed by the Family Court. The parties will appear before the Family Court on 10.6.2013. The Family Court will allow the joint trial of all the cases and conclude the same on an expeditious basis.
The O.P.(FC) is disposed of accordingly.
Registry will communicate a copy of this judgment to the Family Court, Palakkad for information and compliance.
ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE.
acd O.P.(FC)No.1495/12 6 O.P.(FC)No.1495/12 7