IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 36610 of 2007(S) 1. T.VINEED, SON OF C.P.THANKAPPAN, ... Petitioner Vs 1. MANJU S.NAIR, D/O.LALITHAMBIKA, ... Respondent For Petitioner :SRI.K.B.PRADEEP For Respondent :SRI.J.JAYAKUMAR The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice HARUN-UL-RASHID Dated :29/01/2008 O R D E R C.R. KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------- W.P.(C) No.36610 of 2007 ---------------------------------------------- Dated 29th January, 2008. J U D G M E N T
Kurian Joseph, J.
"My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men's hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby
- not even money, certainly not my soul." [M.K.Gandhi-An Autobiography or The story of My Experiments with Truth (page
Motivated and inspired, we have also realized that by settling one case in this court, quite a few litigations between the parties and their families before various other courts or forums can also be either closed or settled. The recent litigation trend in matrimonial disputes indicates that a matrimonial dispute between the parties could generate at least half-a-dozen cases. WP(C) NO.36610/07 2 Access to justice shall not be a handle to multiplication of litigations by taking recourse to all possible legal remedies before all available forums. Easy access to the remedies shall not be permitted to be used as a weapon for harassing the other party. The attempt and effort should be to avoid a possible litigation. But unfortunately, the trend seems to be as to how to multiply the litigation between the parties. The case we are dealing with is a classic example for the same. Within one year, there were eleven litigations before various forums. Unless we had arrested that unhealthy competition, at this pace and by this time they would have been parties to at least another eleven cases. We have also realized that one case settled is ten cases avoided because in settlement, peace is purchased and both parties part as friends. Attempt for alternate redressal is hence not only the statutory obligation of the court under Section 89 of the Civil Procedure Code, but it is their duty to the public also; since being judicial officers they have the expertise in peace making. Once the parties to litigations are objectively able to realize the strength and weakness of their cases, get a fairly realistic picture of the legal position, and when they also realize that what is morally wrong cannot be legally right, they would normally opt WP(C) NO.36610/07 3 for settlement. In the process, as Mahatmaji said, ..."....both sides are happy and they rise in the public estimation".
2. The petitioner married the respondent on 20.6.1995. It was a love marriage against the stiff opposition of the parents. A child was born to them on 14.5.1999. The parties continued their studies and sought employment in different places. The initial infatuation, it appears, slowly faded and the relationship got strained, leading to O.P.642/07 filed by the respondent before the Family Court, Nedumangad seeking permanent custody of the child Adithya. The respondent also filed O.P.641/07 before the said court for dissolution of marriage alleging matrimonial cruelty. She filed a criminal complaint before Judicial First Class Magistrate Court-II, Thiruvananthapuram under Section 23 of the Protection of Women from Domestic Violence Act, as M.C.26/07. Yet another complaint was filed before the police alleging offence under Section 498A of the Indian Penal Code. Thereafter, the petitioner filed O.P.744/07 before the Family Court, Nedumangad for declaring him as permanent guardian and custodian of the child Aditya V.Nair born to the petitioner in the respondent. The respondent filed O.P.799/07 before the Family Court, WP(C) NO.36610/07 4 Nedumangad for recovery of gold ornaments, cash etc. She also filed O.P.1071/07 before the Family Court, Nedumangad for permanent prohibitory injunction. In turn, the petitioner filed O.P.1126/07 before the Family Court praying for recovery of money and articles. At the instance of both parties, the following complaints were registered by the police : (1) FIR 258/07 of Peroorkkada police station, (2) FIR 355/07 of Peroorkkada police station, (3) FIR 555/07 of Peroorkkada Police Station, (4) FIR 603/07 of Medical college police station and (5) FIR 553/07 of Peroorkkada police station. The mother of the petitioner filed a complaint before the Kerala Women's Commmission. The mother of the respondent also filed a complaint before the same Commission.
3. It is in the above mentioned litigating mood of the parties, the petitioner approached this court aggrieved by an order passed by the Family Court, Nedumangad. As per the said order, the custody of the child was given to the petitioner/father for two hours on all Saturdays except second Saturdays. In the interim application, the prayer was for custody of the minor at least for 8 hours on Saturdays or Sundays. On going through the pleadings, we felt that instead of treating the symptoms, we WP(C) NO.36610/07 5 should catch at the root cause. We issued a direction to the parties to be present before this court on 17.12.2007. On that day, we appointed Adv.Smt.Prabha R.Menon as conciliator. After an initial round of talk with the conciliator and after elaborate discussions with the parties, we felt that the entire litigations between the parties are to be and can be put an end to. The case was again posted on 21.1.2008, 22.1.2008, 23.1.2008 and finally to this day. In the light of the discussions the court and the conciliator had between the parties and thanks to the cooperation extended by the learned counsel appearing on both sides, it is heartening to note that peace could be purchased not only between the parties to the marriage, but also between the families of both parties. True, they have agreed to disagree. But we could convince them that on disagreement also, the parties to the marriage can still be friends. For the only reason that the matrimonial bond is terminated and the marriage is dissolved, the parties to the marriage need not be strangers and enemies; they can still continue to be friends, and they have to continue as good friends in this case for the additional reason that they have a child. The husband loses the wife and wife, the husband in a dissolution. But the child does not lose either father or mother. WP(C) NO.36610/07 6 He has only one father and one mother, and he is entitled to have love, care and protection of both parents. The parents in such situation should educate the child that difference of opinion and the inevitable parting between the parties to the marriage shall not in any way affect the status of the child. The child should be taught and trained to acknowledge, respect and love both the father and mother.
4. We are happy to note that both parties have mutually agreed to settle the disputes with regard to the custody of the child also. After several rounds of discussions, we directed the parties to reduce the terms of compromise to writing and file a compromise petition. Accordingly, they have filed I.A.1215/08 incorporating the terms of compromise. We have recorded the terms of compromise. In terms of the compromise, O.P.Nos.641/07, 642/07, 799/07, 1071/07, 744/07 and 1126/07 are struck off from the files of the Family Court, Nedumangad. FIR Nos.258/07, 355/07, 555/07 & 553/07 of Peroorkkada police station are also quashed. Since peace has been purchased between the parties, we are of the view that for securing the ends and in the interests of justice, the proceedings in FIR 603/07 of Medical College Police Station, Thiruvananthapuram and the WP(C) NO.36610/07 7 proceedings in M.C.No.26/07 before the JFCM Court-II, Thiruvananthapuram are to be quashed. Ordered accordingly.
5. As part of the settlement, the parties have filed a petition under Section 28 of the Special Marriage Act, 1954. We are convinced that the said interlocutory application satisfies all the ingredients of Section 28 of the Special Marriage Act, 1954. In the background of the long pending disputes between the parties we are of the considered opinion that a further lie over period is not necessary or required in this case. Therefore, we allow I.A.1216/08 and the marriage between the petitioner and the respondent is dissolved by a decree of divorce on mutual consent. I.A.Nos.1215 and 1216 of 2008 will form part of this judgment. Registry is directed to communicate a copy of this judgment to the Family Court, Nedumangad and also to the Peroorkada and Medical College Police Stations, Thiruvananthapuram and JFCM-II, Thiruvananthapuram.
6. Before we part, we would like to mention that, advocates have a great role and a vital role too in the process of settlement of the cases. But for the sincere cooperation of the advocates on both sides, we could not have succeeded in settling these cases. To a great extent, it is for them to convince their WP(C) NO.36610/07 8 parties that it is in their better interest to go for a settlement and give a quietus to the litigations. In the process they are in fact conciliators and mediators. By settling a case they do not lose anything. They gain the goodwill and appreciation also of the opposite side, since both sides go with the satisfaction that they have not lost but won their case. We also record our appreciation for the earnest efforts taken by Smt.Prabha R.Menon as conciliator in this case.
KURIAN JOSEPH, JUDGE.
KURIAN JOSEPH & HARUN-UL-RASHID, JJ
W.P.(C) NO.36610 OF 2007
J U D G M E N T Dated 29th January, 2008.