Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 O.P.(FC) NO. 607 OF 2022 O.P.(DIV) NO.587 OF 2022 OF THE FAMILY COURT, PATHANAMTHITTA PETITIONER/1ST PETITIONER:
SINI VASANTHY AGED 36 YEARS, D/O.SURENDRAN AND W/O.HAREESH MOHANAN KOTTARATHI, ELIMULLUMPLACKAL, KONNI PO, PATHANAMTHITTA, PIN - 689691. BY ADV DIVYA B.NAIR RESPONDENT/2ND PETITIONER: HAREESH AGED 43 YEARS, S/O.MOHANAN, MEKKU PUTHENVEEDU, PANTHAPLAVU PO, PATTAZHI, KOLLAM, PIN - 691522. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Ajithkumar, J.
The petitioner and the respondent together filed O.P. (Divorce) No.587 of 2022 before the Family Court, Pathanamthitta under Section 13B of the Hindu Marriage Act,
1955. The petitioner is residing in New Delhi and the
respondent is residing in U.A.E. The petitioner, therefore, filed this Original Petition under Article 227 of the Constitution of India seeking a direction to the Family Court, Pathanamthitta to permit the petitioner and the respondent to appear before the Family Court for counseling through video conferencing.
2. When this matter has come up for consideration today, we heard the learned counsel for the petitioner in detail.
3. Marriage between the petitioner and the
respondent was solemnized on 21.01.2007. A child was born in that wedlock and the child is now aged 14 years. Since discord erupted in their marital relationship, they have been living separate. Several rounds of mediation took place, without any success. Hence, they filed a joint petition under Section 13B of the Hindu Marriage Act for divorce. The matter is now pending before the Family Court, Pathanamthitta for counseling. The petitioner in such circumstances seeks a direction to the Family Court to allow them to attend the counseling online.
4. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi- judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the
Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
5. In K.V.S. Ram v. Bangalore Metropolitan
Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of
natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court.
6. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016
(1) KHC 1] a Division Bench of this Court held that, the law
is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court.
Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.
7. The petitioner has no case that she applied before
the Family Court seeking permission to conduct the counseling online. As held in the aforesaid decisions the powers under Article 227 of the Constitution of India is expected to be exercised when there occurs infractions in the exercise of jurisdiction by the subordinate courts. Such a discretionary jurisdiction cannot be invoked for giving direction to the courts to do things in any particular manner. It is for the respective courts to decide what shall be the appropriate procedure to be followed in the situations crop up before it. As regards the conduct of the proceedings before the Family
Courts, including counseling online, the Apex Court in Santhini v. Vijaya Venketesh [(2018) 1 SCC 1] held,- “56. In view of the aforesaid analysis, we sum up our
conclusion as follows:
(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through video conferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that video conferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent.” We are therefore of the view that this Original Petition
does not merit consideration. It deserves only to be dismissed. The petitioner may approach the Family Court, Pathanamthitta for the relief claimed and it is for that Court to decide whether or not permission as claimed is to be granted. This Original Petition is accordingly dismissed.
Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr APPENDIX OF OP (FC) 607/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE MARRIAGE CERTIFICATE 03-03-2008 ISSUED BY THE REGISTRAR OF HINDU MARRIAGES, KONNI GRAMA PANCHAYAT EXHIBIT P2 TRUE COPY OF THE OP(DV) NO.587/2022 FILED BEFORE THE FAMILY COURT PATHANAMTHITTA