Orissa High Court
Dr. Tabindar Kaur @ Dr.Tabindra vs Dr. Harindar Singh on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 2348 of 2023
Dr. Tabindar Kaur @ Dr.Tabindra .... Petitioner
Kaur Chawla
Mr.Sanjeev Udgata, Advocate
-versus-
Dr. Harindar Singh .... Opp. Party
Mr. Pabitra Kumar Nayak, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
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Head and disposed of on 05.05.2023
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JUDGMENT
1. This matter is taken up through Hybrid mode.
2. Petitioner in this writ petition prays for a direction to set
aside the order dated 16th January, 2023 (Annexure-4) passed by
learned Judge, Family Court, Jharsuguda in CP No.91 of 2022,
wherein an application filed by the Petitioner praying inter alia
to post the matter for further conciliation between the parties,
has been rejected observing that the parties themselves by their
conduct have shown disinclination towards reconciliation,
despite efforts by the Court and the counselor.
3. Mr. Udgata, learned counsel for the Petitioner submits
that CP No.91 of 2022 was registered on the file of learned
Judge, Jharsuguda on being transferred from Family Court,
Jaipur, Rajasthan pursuant to direction of the Hon'ble Supreme
Court in Transfer Petition (Civil) No.2226 of 2019. After the
matter was received by the Family Court, Jharsuguda, the
Petitioner-Wife is making sincere attempts for reconciliation in
SASANKA Digitally signed by
SASANKA SEKHAR the matter. But the learned Judge, Family Court did not take that
SEKHAR SATAPATHY
Date: 2023.05.10
SATAPATHY 12:47:19 +05'30' matter seriously. It is his submission that Section 23(2) of the
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Hindu Marriage Act, 1955 (for brevity, 'the Act') provides that
before proceeding to grant any relief under the Act, it shall be
the duty of the Court in the first instance, in every case where it
is possible so to do consistently with the nature and
circumstances of the case, to make every endevaour to bring
about reconciliation between the parties. He further draws
attention of this Court to Section 9 of the Family Courts Act,
1984 and Rule 18 of the Family Courts (Court) Rules, 2010 and
submits that attempt for conciliation between the parties plays a
vital role in a proceeding before the Family Court. Hence, all
endeavours should be made for reconciliation of the dispute
between the parties.
3.1 In support of his contention, Mr. Udgata, learned
counsel for the Petitioner relied upon a decision of the Hon'ble
Supreme Court in the case of Balwinder Kaur v. Hardeep
Singh, reported in AIR 1998 SC 764, wherein it is held that a
duty is cast on the Court in the first instance, in every case to
make endeavour to bring about a reconciliation between the
parties. The Court can even refer the matter to any person
named by the parties for the purpose of reconciliation and to
adjourn the matter for that purpose. These objectives and
principles govern all Courts trying matrimonial matters. He also
relied upon the decision in the case of Jagraj Singh vs Birpal
Kaur, reported in AIR 2007 SC 2083 and submits that the Court
should not give up the efforts for reconciliation merely on the
ground that there is no chance for reconciliation. It is the duty of
the Court to make sincere endeavour for reconciliation. He
further submits an attempt for reconciliation between the parties
W.P.(C) No. 2348 of 2023
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should be made in the beginning and not at the end of the
matrimonial proceeding. The matrimonial Court besides being a
Court of law has to decide matters and grant relief thereon in a
very sensitive field. If an endeavour for conciliation is not made,
the order would be illegal. The intention of the Parliament
requires the Court in the first instance to make reconciliation
between the parties. In the light of the said intention and
paramount consideration an order can be passed by a
matrimonial Court asking a party to the proceeding to remain
personally present. He also relied upon the case of K. Srinivas
Rao vs D. A. Deepa, reported in 2013 (1) CLR (SC) 853,
wherein Hon'ble Supreme Court discussing Section 9 of the
Family Courts Act, held that Family Court shall make all efforts
to settle the matrimonial disputes through mediation, even if the
Counselor submits a failure report, the Family Court shall on
consent of the parties, refer the matter to mediation centre and
can always extend the time limit. He further relied upon the
decision of the Allahbad High Court in the case of Nisha Soni
v. Mukesh Soni, reported in AIR 2019 Allahabad 189, in which
the decree was set aside for not undergoing the conciliation
process. He, therefore, submits that the Court instead of
rejecting a petition filed by the Petitioner for reconciliation
between the parties, should have made endeavour for a
reconciliation, if necessary by extending the time limit.
3.2 It is his further submission that Hon'ble Supreme Court,
while disposing of Transfer Petition (Civil) No.2226 of 2019, has
only observed that the transferee Court shall make endevour to
dispose of the case within six months. But that does not preclude
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the Family Court from following the mandatory provisions of the
Family Courts Act and Rules framed thereunder. He, therefore,
prays for setting aside the impugned order and to direct the Family
Court to make an endeavour for reconciliation.
4. Mr. Nayak, learned counsel for the Opposite Party
submits that it is at the instance of the Petitioner, the Transfer
Petition (Civil) was filed before the Hon'ble Supreme Court for
transfer of the Civil Proceeding pending before Family Court,
Jaipur, Rajasthan to the competent Court at Jharsuguda, Odisha.
Considering the petition, Hon'ble Supreme Court, vide order
dated 28nd July, 2022, passed the following order:-
"Considering the facts and circumstances of the case, this
transfer petition is allowed. The transferrer court shall
forward the papers of the Divorce Petition within a period
of four weeks. Since, both the parties are medical
professionals, the transferee court shall permit the parties
to appear through virtual mode or at least through their
respective counsel, till such time the trial commences and
their appearance becomes necessary. The transferee
Court shall endevaour to dispose of the case within six
months."
4.1 Although at para-4 of the writ petition, the Petitioner has
stated about the transfer application, but the Petitioner has
conveniently suppressed the timeline provided by Hon'ble
Supreme Court for disposal of the civil proceeding. The order of
the Hon'ble Supreme Court has also not been annexed to the
writ petition stating that it will be produced at the time of
hearing of the writ petition.
4.2 It is his submission that while disposing of the transfer
application, Hon'ble Supreme Court has stated that since both
the parties are medical professionals, transferee Court shall
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permit the parties to appear through virtual mode or at least
through their respective counsel till such time the trial
commences and their appearance becomes necessary. In spite of
the said direction the Petitioner filed an application for a
direction for personal appearance of the Opposite Party. The
said application was rejected vide order dated 4th November,
2022 and the matter was posted to 23rd November, 2011 for
conciliation through virtual mode. On the said date, none of the
parties were present. Advocates also did not take any step in the
matter due to the resolution passed by the local Bar. As such,
the matter was posted to 2nd December, 2022, on which date
also none of the parties was present, but learned counsel for the
Petitioner filed an application praying for adjournment. Learned
Judge, Family Court rejecting the petition for adjournment,
posted the matter for filing of written statement. Thus, it cannot
be said that the Court did not make any endeavour for
conciliation. Further learned Judge, family Court, while passing
the impugned order, has observed that during course of trial,
conciliation proceeding can take place if there appears an
element of settlement of dispute between the parties. In that
view of the matter, learned Judge, family Court has not made
any error in rejecting the petition. Although a timeline has been
fixed by Hon'ble Supreme Court, the Petitioner without
cooperating with learned Judge, Family Court is filing such
petitions only to linger the proceeding and harass the Opposite
Party. As such, the writ petition being devoid of any merit
should be dismissed.
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5. Considering the rival contentions of the parties and on
perusal of record, this Court finds that the Petitioner has not come
to the Court with clean hands. Although at para-4 of the writ
petition, it is stated that on a transfer petition being filed by the
Petitioner, the Civil Proceeding has been transferred to the Family
Court, Jharsuguda, but nothing has been mentioned about
appearance of the parties through virtual mode or the timeline
fixed by the Hon'ble Supreme Court for disposal of the Civil
Proceeding. The order of the Hon'ble Supreme Court has also not
been annexed to the writ petition. It was brought to the notice of
this Court by the learned Judge, Family Court, Jharsuguda vide its
letter No. 111 dated 20th February, 2023 (Flag-Z1). The Opposite
Party by filing counter affidavit also brought the aforesaid fact to
the notice of this Court. Considering the same, this Court, vide
order dated 19th April, 2023, vacated the interim order dated 2nd
February, 2023 passed in IA No.1107 of 2023. While disposing of
the transfer application, Hon'ble Supreme Court has observed that
both the parties being medical professionals, transferee Court shall
permit the parties to appear through virtual mode or at least
through their respective Counsel, till such time the trial
commences and their appearance becomes necessary. In spite of
the same, the Petitioner filed an application seeking personal
appearance of the Opposite Party for reconciliation which was
rejected on 4th November, 2022 and the matter was posted for
virtual conciliation. Thereafter, on two consecutive dates, i.e., 23rd
November, 2022 and 2nd December, 2022, none of the parties
appeared through virtual mode for reconciliation. It is, however,
stated at para-5 of the writ petition that the Petitioner could not
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appear on 23rd November, 2022, as the link was not provided to
her. But, no such objection appears to have been raised by the
Petitioner before learned Family Court. It further appears from the
order sheet of the Civil Proceeding that learned Family Court,
Jharsuguda had made endeavour on earlier occasions for a
conciliation between the parties. But, the conciliator submitted a
report on 29th November, 2022 stating that due to absence of the
Petitioner (Respondent before Family Court), conciliation could
not be made. In view of the above, it can never be said that learned
Judge, Family Court has not made any endeavour for
reconciliation. It appears that the Petitioner herself did not co-
operate for conciliation. Strangely, the Petitioner is shading
crocodile tears and making an attempt to blame the Family Court
for not making any attempt for conciliation.
6. There can be no quarrel over the statutory provisions
and ratio decided by different Courts with regard to the object of
conciliation and effect thereof. When the parties do not co-
operate with learned Judge, Family Court for reconciliation, the
Court has no other option than to proceed with the matter in
accordance with law. In addition to the above, in the instant
case, Hon'ble Supreme Court has fixed a timeline for disposal
of the Civil Proceeding by the transferee Court. While passing
the impugned order, learned Judge, Family Court has also
observed that even in course of trial, the conciliation proceeding
can take place, if there appears an element of settlement
between the parties. Thus, learned Judge, Family Court has not
ruled out the possibility of conciliation between the parties even
at the stage of trial. In view of the above, this Court finds that
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learned Judge, Family Court has not committed any error in
rejecting the petition filed by the Petitioner for not posting the
matter for further reconciliation between the parties.
7. Before parting with the case, this Court with pain
observes that the Petitioner has suppressed the material facts
before this Court in the writ petition, more particularly the
timeline fixed by Hon'ble Supreme Court. While moving the
interim application also, it was not brought to the notice of the
Court that Hon'ble Supreme Court while disposing of the
transfer application, has observed that the transferee Court
should make an endeavour for disposal of the matrimonial
proceeding within six months. The Petitioner without any
hesitation made attempt before this Court to get a favourable
order by misleading the Court and suppressing material facts.
8. In view of the above, while dismissing the writ petition,
this Court imposes a cost of Rs.25,000/- (rupees twenty-five
thousand only) on the Petitioner, which shall be deposited by the
Petitioner before learned Family Court, Jharsuguda before
completion of trial. On such deposit being made, the same shall be
paid to the Opposite Party. If the cost is not deposited, the learned
Judge, Family Court, Jharsuguda may take necessary steps for
realization of the same and pay the same to the Opposite Party.
Issue urgent certified copy of the judgment on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
W.P.(C) No. 2348 of 2023
