Shymol Shivadas v. Manoj T K

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 O.P.(FC) NO. 707 OF 2022** **AGAINST THE ORDER DATED 03.12.2022 IN I.A.NO.5 OF 2022 IN O.P.NO.726 OF 2017 ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR** ## **PETITIONER:** **SHYMOL SHIVADAS,** **AGED 41 YEARS, WIFE OF MANOJ T.K., RAVI SADANAM HOUSE, RUBI NAGAR P.O., MORKLANGARA, CHANGANASSERRY, KOTTAYAM DISTRICT, KERALA, PIN – 686103.** **BY ADV LUKE J CHIRAYIL** ## **RESPONDENT:** **MANOJ T K** **AGED 43 YEARS, SON OF T.G.KUNJUMON, THADATHIL HOUSE, PANACHIKADU, KUZHIMATTOM P.O., KOTTAYAM DISTRICT, KERALA, PIN – 686533.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.707 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The respondent herein has filed O.P.No.726 of 2017 before the Family Court, Kottayam at Ettumanoor, seeking a decree of dissolution of marriage between the petitioner and the respondent, which was solemnized on 13.09.2003. The petitioner herein filed I.A.No.5 of 2022 in that O.P. seeking to refer the parties for an effective mediation. The Family Court dismissed I.A.No.5 of 2022 as per Ext.P12 order. The petitioner challenges the said order in this Original Petition filed under Article 227 of the Constitution of India. 2. Heard the learned counsel appearing for the petitioner in detail. 3. The learned counsel for the petitioner would contend that the dispute being one between the spouses relating to their marital discord, it is the obligation of the Family Court to make every endeavour to resolve the dispute through alternative disputes resolution processes. Since there is every possibility for an amicable settlement, the petitioner 3 O.P.(FC) No.707 of 2022 has filed I.A.No.5 of 2020. The Family Court, however, did not consider the matter in its proper perspective and that resulted in dismissal of I.A.No.5 of 2022. 4. The learned counsel in order to fortify his contention places reliance on **Srinivas Rao K. v. D.A.Deepa [2013 (5) SCC 226], Bhavana Ramaprasad v. Yadunandan Parthasarathy [AIR 2015 Karnataka 6]** and **George P.Cherukoth v. Mariyumma and another [2015 (5) KHC 152]** . 5. The Apex Court in **Srinivas Rao** (supra) held that in terms of Section 9 of the Family Courts Act, 1984 the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. 6. In **Bhavana Ramaprasad** (supra), a Single Judge of the Karnataka High Court held that earnest efforts have to be made to resolve the disputes amongst the litigants by having recourse to alternative dispute resolution processes, 4 O.P.(FC) No.707 of 2022 more particularly the matrimonial disputes, by referring them to Mediation Centre. 7. This Court in **George P.Cherukoth** (supra) held that Section 89 of the Code of Civil Procedure,1908 empowers the Court to adopt the Alternate Dispute Resolution mechanism at any stage and does not prohibit a mediation post decree, and even at execution stage. 8. There is no reason for any quarrel to the proposition that in the matrimonial disputes, there shall be every endeavour on the part of the Family Court to resolve the dispute through alternative dispute resolution processes. But the same shall be in accordance with the law. Any such process shall not be at the peril of one of the parties. A mediation process can be had only if both sides agree for the same. 9. Ext.P13 is a copy of the case details of O.P.No.726 of 2017. It contains the proceedings of the case upto 15.12.2022. The petitioner has no case that the parties did not attend counselling. She also does not have a case that mediation talks did not take place in the case. O.P.No.726 of 5 O.P.(FC) No.707 of 2022 2017 was tried jointly with O.P.No.987 of 2017 and 817 of 2017 and M.C.No.193 of 2017. Entire evidence in those cases was recorded. Both sides were heard and on completion of the court proceedings on 15.12.2022, the learned Judge, Family Court reserved the matters for pronouncing the judgment/ order. It is in the said circumstances I.A.No.5 of 2022 was filed. The reason why no such petition was filed before completion of the trial is not explained. The obligation of the court to explore the possibility of a settlement in every matrimonial dispute cannot be interpreted or used to scuttle the judicial proceedings. A process of mediation can be initiated only if both sides agree. In such circumstances, the unilateral attempt of the petitioner to refer the matter for mediation at a stage after completion of the trial in not only O.P.No.726 of 2017, but also the other three connected cases, cannot be appreciated. Such an attempt is nothing, but an abuse of the process of the court. 10. The learned Judge of the Family Court opined that the intention behind filing I.A.No.5 of 2022 is an attempt to 6 O.P.(FC) No.707 of 2022 protract the proceedings of the cases. When the learned Judge of the Family Court, who held the entire trial proceedings, has such an opinion, it is absolutely not within the province of this Court in the exercise of the powers under Article 227 of the Constitution of India to interfere with that finding. 11. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers 7 O.P.(FC) No.707 of 2022 of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 12. In **Shalini Shyam Shetty v. Rajendra Shankar** **Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 13. 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 8 O.P.(FC) No.707 of 2022 Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasijudicial 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 9 O.P.(FC) No.707 of 2022 in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 14. 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. 15. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law 10 O.P.(FC) No.707 of 2022 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. Viewed in the light of the law laid down in the aforesaid decisions, we are of the definite view that there can have no interference with Ext.P12 order. This Original Petition lacks merits. It is accordingly dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.707 of 2022 ## **APPENDIX OF OP (FC) 707/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** - **THE TRUE COPY OF THE PETITION DATED 27.07.2017 NUMBERED AS O.P. (HMA) NO: 726 OF 2017 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM, ETTUMANOOR** - **EXHIBIT P2 THE TRUE COPY OF THE UNDATED OBJECTION IN O.P (HMA) NO. 726 OF 2017 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **EXHIBIT P3 THE TRUE COPY OF THE PETITION DATED 23.09.2017 NUMBERED AS O.P. NO. 987 OF 2017 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM, ETTUMANOOR** - **EXHIBIT P4 THE TRUE COPY OF THE UNDATED OBJECTION IN G & W O.P. NO. 987 OF 2017 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P5 TRUE COPY OF THE PETITION DATED 16.08.2017 NUMBERED AS O.P. NO. 878 OF 2017, ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P6** - **THE TRUE COPY OF THE OBJECTION DATED 10.01.2019 IN O.P NO: 878/2017 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM, ETTUMANOOR** - **EXHIBIT P7** - **THE TRUE COPY OF THE PETITION NUMBERED AS M.C. NO: 193 OF 2017 DATED 26.09.2017 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** 12 O.P.(FC) No.707 of 2022 ## **EXHIBIT P8** ## **EXHIBIT P9** **EXHIBIT P10** **EXHIBIT P11** ## **EXHIBIT P12** **EXHIBIT P13** **THE TRUE COPY OF THE OBJECTION DATED 26.11.2019 IN M.C. NO: 193 OF 2017 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR** **THE TRUE COPY OF THE PETITION DATED 30.11.2022 WHICH IS NUMBERED AS I.A NO: 5/2022 IN O.P NO: 726/2017, O.P NO: 987/2017, O.P NO: 878/2017 AND M.C NO: 193/2017 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **TRUE COPY OF THE JUDGMENT DATED 02.12.2022 IN O.P. (FC) NO. 663 OF 2022 ON THE FILES OF THE HONORABLE HIGH COURT OF KERALA** - **TRUE COPY OF THE JUDGMENT DATED 06.12.2022 IN O.P. (FC) NO. 675 OF 2022 ON THE FILES OF THE HONORABLE HIGH COURT OF KERALA** **TRUE COPY OF THE ORDER DATED 03.12.2022 IN I.A. NO. 5 OF 2022 IN O.P. NO. 726 OF 2017 ON THE FILES OF THE HONORABLE COURT OF THE JUDGE FAMILY COURT KOTTAYAM AT ETTUMANOOR** **TRUE EXTRACT OF THE CASE STATUS OF O.P. NO. 726 OF 2017 ON THE FILES OF THE HONORABLE COURT OF THE JUDGE FAMILY COURT KOTTAYAM AT ETTUMANOOR OBTAINED FROM E-COURTS WEBSITE**