Kavitha P. vs K. Sunil Kumar Nair

R. Basant, J.—This petition has been filed by the petitioner/mother of two children, who is the respondent in a G & W petition, pending before the Family Court, Kottarakkara. The parties had settled their disputes before us in the proceedings - W.P. (Crl.) No. 312 of 2010, which was disposed of by judgment dated 17.9.2010. They had agreed that divorce by mutual consent can be applied for. They had represented that the surviving dispute regarding the custody of the children shall be attributed to settled before the Family Court, Kottarakkara. They had further stipulated that in case a settlement is not reached, they shall seek orders on merits from the Family Court, Kottarakkara, where O.P.(G.&W.) No. 791 of 2010 filed by the respondent/husband/father was already pending. It was agreed in this Court, that the children can be sent along with their father.

The petitioner has now come running to this Court with the grievance that the Court below has posted the case for evidence to 26.10.2010, as per order dated 27.9.2010.

What is the grievance of the petitioner? The learned Counsel for the petitioner first of all submits that an interim direction ought to have been issued to enable the petitioner to see her infant children, aged 6 years and 2 = years. Admittedly no petition has been filed seeking any interim relief. If the petitioner wants to seek interim relief, she must certainly file a petition before the Family Court and we have no hesitation to agree that such a request in respect of the infant children aged 6 and 2 = years if made shall have to be considered by the Family Court on merits expeditiously, not withstanding the posting of the case to 26.10.2010, for adducing evidence. But without filing any petition to seek interim relief, the grievance of the petitioner before this Court, is found to be without any merit.

The next grievance raised is that the Court below did not attempt a harmonious settlement of the disputes between the parties. That grievance appears to be justified. It is true that efforts for conciliation/settlement were made before this Court in a habeas corpus petition. We were partly successful, but regarding the custody of the children, the dispute was not settled. Notwithstanding this fact that such efforts were made by this Court, the course adopted by the Family Court of dispensing with the requirement of counseling/attempting for conciliation is not correct. The petitioner can move the Family Court and the Family Court must certainly proceed with efforts to persuade the parties to come to a harmonious settlement.

We do not think that any further directions are necessary in this Writ petition. With appropriate observations this Writ petition can be disposed of.

In the result, this Writ petition is dismissed. But, we, however observe that it shall be open to the petitioner to file an appropriate application before the Family Court for interim direction regarding the interim custody/visitorial rights and the Family Court must dispose of the same as expeditiously as possible. We further observe that the petitioner can request and the Family Court must endevour to persuade the parties for a harmonious settlement between them by invoking the provisions of Family Court Act for counseling or any other ADR option available before the Family court. The fact that this Court attempted a harmonious settlement and partly succeeded while disposing of W.P.(Crl.) No. 312 of 2010, shall not justify the Court below not making any such attempts.

Hand over a copy of this order to the learned Counsel for the petitioner for immediate production before the Family Court.