Gayathri Kharade vs Milind V. Desai

B.S. Patil, J.—In this writ petition, Petitioner is calling in question the order dated 16.08.2011 passed by the Principal Judge, Family Court, Bangalore, in M.C. No. 1949/2011.

Petitioner is the wife of the Respondent. She has alleged emotional, financial and physical harassment and acts of cruelty against the Respondent - husband and his family members. Apart from the same, allegations of adultery are made against the Respondent. M.C. No. 1949/2011 was filed on 13.06.2011. The same was posted before the Court on 29.06.2011, Petitioner was permitted to engage the services of an Advocate by allowing I.A. No. 1. Counsel for the Petitioner submitted that the parties had settled the matter and that they would report settlement on 07.07.2011. The Court below inferred that, there was collusion between the parties and hence notice was issued to the Respondents by registered post returnable by 14.09.2011.

On 29.07.2011, the Respondent - husband filed an application seeking to advance the case for permission to engage an Advocate to represent him. The said application was allowed. The case was taken up on 29.07.2011. Petitioner also filed an application u/s 151 CPC to recall the earlier order dated 29.06.2011 by enclosing the copy of the FIR and the complaint.

The Court below had suspected the bonafides of the Petitioner as it was submitted that there was settlement between the parties on the day when the matter was first listed before the Court. However, in the light of the complaint lodged by the wife against, the husband, the Court felt that the parties might have settled the matter. But as regards the urgency pleaded to advance the case, the Court felt that as the allegations of adultery had been made, petition itself was not maintainable unless the adulterer was impleaded as party Respondent to the petition. It is in this background that the Court below has passed the impugned order on 16.08.2011 allowing the application filed u/s 151 CPC seeking to recall the order passed on 29.06.2011 noting that the petition was a collusive petition. However, the Court directed the Petitioner to implead the adulterer as Respondent in the petition and for the purpose of impleading the adulterer, the matter was adjourned to 29.08.2011.

Learned Counsel for the Petitioner submits that there was no collusion between the parties and that in view of the serious differences between them leading to lodging of the complaint against the Respondent and his parents, the parties decided to settle the matter. He submits that without there being any material and without even hearing the other side, the Court below had formed art opinion, that it was a collusive proceeding and therefore the Petitioner filed an application u/s 151 CPC to recall the said order. However, while recalling the order, an observation was made stating that the petition was not maintainable without impleading the adulterer as Respondent No. 2. His submission is that in the facts and circumstances of the case where allegations of cruelty are also made and as parties are trying to settle their matter, it was unnecessary for the Court below to issue a direction to implead the adulterer. At any rate, counsel submits that the Petitioner was not given any opportunity to address arguments with regard to the legal requirement to implead the adulterer.

Learned Counsel appearing for the Respondent submits that as the Petitioner has filed a criminal complaint tinder Section 498-A IPC resulting in the Respondent being apprehended by the police and as the Petitioner has gone to the extent of implicating the parents of the Respondent and had made wild allegations by filing a divorce petition, the Respondent has decided to settle the matter so as to get rid of the misery.

Learned Counsel for both the parties submit that in the light of the serious differences between the parties, they must be allowed to resolve the same with the help of skilled mediators and therefore the matter may be referred to the Bangalore Mediation Centre for arriving at an amicable settlement which will be beneficial for both the parties. They have strenuously asserted before the Court that there is no collusion or any intention on the part of the parties to by-pass the requirement of law to some how secure the decree of divorce They further submit that the family of the Petitioner and the Respondent which is in distress will be really helped to resolve their dispute, if the matter is referred to the Bangalore Mediation Centre to arrive at a peaceful negotiated settlement, through the help of the mediators.

Having heard the learned Counsel for the parties and on careful perusal of the entire materials on record, I find that the submission made by the learned Counsel for the parties deserves to be favourably considered. It is not in dispute that the criminal proceedings are initiated by the Petitioner against her husband and his family members. The said complaint is filed on 14.06.2011, a day after the divorce petition was filed on 13.06.2011. It is also stated before the Court that the Respondent was in fact apprehended on 25.06.2011. This discloses that the parties have serious differences. Even though allegations of adultery are made in the petition, the fact remains that the Petitioner has also made serious allegations of cruelty against the Respondent and his family members. In such circumstances, when the parties want to thrash out their differences by approaching the Mediation Centre, there is absolutely no reason why such request cannot be considered favourably. In my view, in matters like this, the intervention of the skilled mediators to provide an opportunity to the parties to settle their dispute will be a good solution as rightly pointed out by the counsel for the parties.

At this stage, when the parties want to settle the dispute, it is unnecessary to prevent them from making such effort. As the Court has found that apparently there was no collusion between the parties, best course for the parties now is to appear before the Bangalore Mediation Centre to sort out their difference.

Hence, the impugned order insofar as it directs the Petitioner to implead the adulterer is concerned is set aside. Parties are directed to appear before the Bangalore Mediation Centre on 29.09.2011 al 3 p.m. Learned Judge of the Family Court is directed to forward the necessary papers as required to the Mediation Centre to facilitate the parties to appear and participate in the mediation process.

It is submitted by the learned Counsel for the Petitioner that the Petitioner had no occasion to show that the matrimonial case was maintainable without impleading the alleged adulterer. In fact, this question will arise later. It is made clear that if the mediation fails and the matter comes back to the Court, the Petitioner will have an opportunity to have her say regarding maintainability of the petition without impleading the adulterer and thereafter the Court below may pass necessary orders on the same.