IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 36685 of 2009(R) -------------------------- OP.898/2009 of FAMILY COURT,KOZHIKODE .................... PETITIONER: --------------- RISWANA, D/O.KHALID, AGED 21 YEARS, NOOR MAHAL, PANNIYANNUR, CHOKLI, THALASSERY TALUK. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT: --------------- FASIHUDEEN, S/O.ABDUL LATHEEF, AGED 34 YEARS, LAHAF HOUSE, AZHIYOOR AMSOM, DESOM, P.O.AZHIYOOR, VATAKARA TALUK, KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(C) No.36685 of 2009 ------------------------------------- Dated this the 18th day of December, 2009 JUDGMENT BASANT, J. Against the petitioner an application has been filed before the Family Court for a decree for restitution of conjugal rights. The respondent herein claims to be her husband. According to the petitioner herein, the respondent is not her husband, but is only her brother in law. The respondent is married to the elder sister of the petitioner. According to the petitioner, the respondent had kidnapped/abducted her, and had taken her to Bangalore and rape was allegedly committed on her. She has a further complaint that her signatures were obtained on certain documents including a marriage certificate under force and duress. The respondent had filed an application before the Magistrate under Section 97 Cr.P.C. But in that application, on the statement of the petitioner that she is not married to the respondent, that petition was dismissed. To vex and harass the petitioner, the respondent has now filed an application for restitution of conjugal rights. W.P(C) No.36685 of 2009 2 2. Instead of appearing before the Family Court and raising her contentions, the petitioner has rushed to this Court with this Writ Petition. It is prayed that the powers under Article 227 may be invoked to quash the proceedings initiated by the respondent in O.P.No.898 of 2009 as the same amounts to unnecessary vexation. 3. We are unable in this Writ Petition to resolve the controversy of facts as to whether the petitioner has really married the respondent or not. That question will certainly have to be decided by the Family Court on the materials placed before it. Of course, we appreciate the request of the learned counsel for the petitioner that the Family Court may have to consider that question as a preliminary issue. At any rate, we are not persuaded to agree that the said disputed question of fact can be resolved by this Court in proceedings under Article 226/227 of the Constitution. Whether a marriage had really taken place, whether the marriage certificate is forged or obtained by force, fraud and coercion, and whether, even if there be a marriage, the second wife can be compelled to cohabit with the husband having another wife, are all questions which will have to be W.P(C) No.36685 of 2009 3 considered by the Family Court. We are not, in these circumstances, persuaded to invoke our extraordinary constitutional jurisdiction under Article 227 of the Constitution of India. 4. The learned counsel for the petitioner submits that the petitioner may be saved of the undeserved and unnecessary trauma of appearing personally before the Family Court. In the peculiar facts and circumstances, the petitioner's personal presence may be exempted, submits the learned counsel for the petitioner. 5. In the peculiar facts and circumstances of this case it is for the petitioner to make that request before the Family Court and make an appropriate application. We have no reason to assume that the Family shall not consider the same in accordance with law. At any rate, we must caution and advise the Family Court against unnecessary insistence on personal presence of the petitioner. Personal presence of the petitioner need not be insisted ritualistically. Every court must be alive to the peculiar facts and circumstances of each case and ritualistic insistence on personal presence in all cases should not be W.P(C) No.36685 of 2009 4 insisted by any court - even a Family Court. We are satisfied that the said observations are sufficient and the petitioner can make appropriate application before the Family Court. 6. This Writ Petition is dismissed with the above observations. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-