IMPORTANT POINT
A Family Court must adhere to procedural rules before declaring a litigant ex parte, ensuring proper notice and opportunity for mediation.

JUDGMENT :

DEVAN RAMACHANDRAN, J.

The bone of contention – in a manner of speaking - in this case is whether a Family Court can declare the litigant before it ex parte, if he/she refuses to appear before it in response to a notice issued by it under the provisions of Rule 4A of the Family Court (Kerala) Rules, 1989 (‘Rules’ for short), which authorises it to refer the parties to mediation.

2. As per Rule 4A(2) of the Rules, every Family Court is enjoined, before issuing summons to the respondents, to scrutinize the petition/application; and then, if it is of the opinion that there is scope for settlement, it may issue notice in Form 8 – but without annexing to it the Original Petition/Application to both sides to appear in person on a date to be fixed in that regard, to consider whether they can be referred for mediation.

3. The genesis of the controversy in this case is that the appellant herein did not appear consequent to the notice issued to him under the afore provision; and apparently, solely for that reason, he was set ex parte by the learned Family Court, subsequently leading the Original Petition to be allowed.

4. The petitioner assails this as being impermissible, singularly pleading that, even assuming that there was any deliberate failure on his part to appear, the declaration of him set ex parte was illegal.

5. Even though the appellant challenges the judgment and decree of the learned Family Court, Kasaragod, in O.P.No.337/2023, the thrust of his assertions are, in fact, against an earlier order (shown as a judgment) issued by it on 13.12.2023, setting him exparte.

6. The learned counsel for the petitioner – Sri.T.Madhu, took us through the chronology of events leading to the afore orders, to argue that O.P.No.337/2023 was filed by the respondent herein, seeking maintenance; and that the parties were asked by the learned Court to appear before it in person, so as to enable them to be referred to mediation on 13.12.2023. He conceded that his client did not appear on that day - but explaining that this was solely because he did not receive the notice, since he was abroad and the same having been published in a local newspaper - and that the Court, thereupon, declared him exparte, proceeding to the trial of the case, listing it on 18.12.2023. He showed us that, immediately the day thereafter, namely on 19.12.2023, the learned Trial Court issued judgment, allowing the Original Petition and asking his client to pay certain amounts as past maintenance. He contented that this procedure is contrary to the statutory scheme, since, even if his client had remained absent deliberately – without admitting it - he ought to have been issued further notice as per Rule 4A(5) of the Rules, before he could have been set exparte. He thus prayed that the order (shown as judgment) of the learned Family Court dated 13.12.2023, be set aside; and consequently, that the judgment and decree in O.P.No.337/2023, dated 19.12.2023, be also quashed.

7. Sri.P.V.Anoop – learned counsel for the respondent, however, responded, arguing that the true facts are not as stated by the petitioner because, after notice to him in Form 8 was published in a newspaper, he entered appearance through a counsel; but still refused to appear for mediation online – though so ordered by the learned Family Court. He added that the learned Court, therefore, could have done no more than to have set the petitioner exparte; but argued that this was done not through the order dated 13.12.2023, but only on 19.12.2023 - when the final judgment was delivered. He predicated that, therefore, the challenge to the order (shown as judgment) of the learned Family Court, dated 13.12.2023, is untenable; and hence that subsequent judgment and decree are irreproachable.

8. We are afraid that we cannot find favour with the afore submissions of Sri.P.V.Anoop because, as we have already indicated above, the learned Family Court, on 13.12.2023, issued an order - styled as a judgment - recording tha