Renjith P.S. Vs. Kavery S .Thampi - Court Judgment

Excerpt:

.....either indo-aryan or dravidian languages" 28. it is for this reason that there is such tremendous diversity in india. there are a large number of religions, castes, languages, ethnic groups, cultures etc. in our country, which is due to the fact that india is a country of immigrants. we may compare india with china which is larger both in population and in land area than india. on the other hand, as stated above, india has tremendous diversity and this is due to the large scale migrations and invasions into india over thousands of years. the various immigrants/invaders who came into india brought with them their different cultures, languages, religions, etc. which accounts for the tremendous diversity in india. however, giving formal equality to all groups or communities in india would not result in genuine equality. the injustice done to the tribal people of india is a shameful chapter in our country's history. despite this horrible oppression on them, the tribals of india have generally (though not invariably) retained a higher level of ethics than the non-tribals in our country. .....orders passed in i.a.no.2150/10 which admittedly is an application under order 38 rule 5 cpc for attachment of property prior to judgment. the mere fact that the court below has taken steps in i.a.no.2150/10 and has passed exts.p2 and p3 orders in that application cannot persuade this court to jump to the conclusion that the family court is not following the requisite steps to refer the parties for counselling in accordance with the rules. we shall assume for the sake of arguments that such an indiscretion is being committed usually in all cases by the family court. the petitioners, if they are desirous that the proper procedure ought to be followed can certainly make an application to the family court reminding the family court of its duty to refer the parties for counselling and the omission committed by the court in not resorting to that step. we note that the presiding officer has been manning that court for a fairly long period of time and it would idle for us to assume lightly that the said court is not following the prescribed procedure relating to counselling and is unaware of the need to pursue an effort for harmonious settlement before the parties go for trial. 4. we.....

Judgment:

R. BASANT &

K. SURENDRA MOHAN, JJ.

O.P.(FC) No.632 of 2010-R

Dated this the 9th day of November, 2010

1. The petitioners are the respondents in O.P.No.987/10 pending before the Family Court, Kottayam. That O.P. is filed by the respondent/wife against the petitioners herein who are her husband and mother-in-law. Amounts were claimed from the petitioners herein by the respondent in that O.P. Along with the petition, there was an application for interim attachment. Exts.P2 and P3 orders are orders passed in that I.A. Attachment has been effected. Security has not been furnished. In that context in I.A.No.2150/10 (that is the petition for attachment), it was directed that the petitioners must file their objections, if any, on 11/11/10.

2. At this juncture the petitioners have rushed to this Court. What is their grievance? The learned counsel for the petitioners submits that the Family Court is not strictly following the procedure prescribed under the relevant rules. The Family Court is obliged to refer the parties for counselling. That step is not followed. There is frog leaping of that step and the court has directly gone to the stage of recording evidence. The learned counsel for the petitioners submits that this procedure adopted by the court below is wrong and erroneous. There may be a direction to the Family Court to follow the procedure prescribed by law and not to proceed to the stage of evidence before an attempt is made for counselling and harmonious settlement of the dispute.

3. What is there to show that the court below has omitted to take any steps for reference of the parties for counselling? Except Exts.P2 and P3 no other materials are placed. Exts.P2 and P3 are orders passed in I.A.No.2150/10 which admittedly is an application under Order 38 Rule 5 CPC for attachment of property prior to judgment. The mere fact that the court below has taken steps in I.A.No.2150/10 and has passed Exts.P2 and P3 orders in that application cannot persuade this Court to jump to the conclusion that the Family Court is not following the requisite steps to refer the parties for counselling in accordance with the rules. We shall assume for the sake of arguments that such an indiscretion is being committed usually in all cases by the Family Court. The petitioners, if they are desirous that the proper procedure ought to be followed can certainly make an application to the Family Court reminding the Family Court of its duty to refer the parties for counselling and the omission committed by the court in not resorting to that step. We note that the Presiding Officer has been manning that court for a fairly long period of time and it would idle for us to assume lightly that the said court is not following the prescribed procedure relating to counselling and is unaware of the need to pursue an effort for harmonious settlement before the parties go for trial.

4. We are not, in these circumstances, persuaded to invoke our extraordinary constitutional jurisdiction under Art.227 of the Constitution. This is not to say that the procedure for counselling cannot or need not be followed by the court below. It shall be open to the petitioners to bring to the notice of the court below that such procedure has to be followed. On such application if filed, appropriate orders will have to be passed by the court below.

5. With the above observations, this O.P.(FC) is dismissed.

6. Hand over a copy of this judgment to the learned counsel for the petitioners for production before the Family Court if and when the petitioners move an application to follow the procedure for counselling.