While taking a very serious note of the petitioner suppressing a very significant legal point, the Orissa High Court has in a most remarkable, robust, rational and recent judgment titled Mrs X v Mr Y in W.P.(C) No. 2348 of 2023 that was heard and disposed of on 05.05.2023 dismissed a writ petition that was seeking reconciliation between the parties in a matrimonial dispute. The Orissa High Court set aside the order that was passed by the Family Court of Jharsuguda while rejecting the petitioner’s application for further conciliation. In addition, we see that the Court also imposed a heavy cost of Rs. 25,000/- on the wife who is the petitioner for misleading the court and suppressing the material facts pertaining to the timeline fixed by the Supreme Court while allowing transfer of the case for disposal of the marital dispute by the Family Court.
At the very outset, this brief, brilliant and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice KR Mohapatra sets the ball in motion by first and foremost putting forth in para 1 that, “This matter is taken up through Hybrid mode.”
As we see, the Bench states in para 2 that, “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.”
Do note, the Bench notes in para 4 that, “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 endeavour to dispose of the case within six months.”
Further, the Bench mentions in para 4.1 that, “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.”
What’s more, the Bench observes in para 4.2 that, “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 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.”
Most forthrightly, the Bench propounds in para 5 that, “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 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 cooperate 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.”
It is worth noting that the Bench then notes in para 6 that, “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 cooperate 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 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.”
Most significantly, the Bench then minces absolutely no words to hold in para 7 that, “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.”
Finally and far most significantly, the Bench then concludes by holding in para 8 that, “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.”
In sum, we thus see that the Orissa High Court has taken a very strong exception to the petitioner-wife suppressing timeline prescribed by Supreme Court for disposal of matrimonial dispute by Family Court. This alone explains why it imposed a heavy cost of Rs 25,000/- on her. No denying it!
Sanjeev Sirohi