Category Archives: Agent 2 appear @ family court

Parties can be represented thru lawyer at family court ! Raj HC

Family courts are expected to attempt at reconciliation, shorten the length of trial etc, and so take a radically different “party in person approach” . However in specific cases, considering the situation of the parties, their difficulties to travel and reach the courts, the need for a counsel (with legal knowledge) etc., parties may be permitted to be represented thru a lawyer. Reasonable opportunity to defend considered as an essential part of principles of natural justice.
In this classic case, the Hon court summarises that “….(iv) in case the conciliation fails and both or either of the parties submits an application of leave to be represented through a Lawyer, it should normally be granted more particularly in a case where the parties are to travel from outside the place of sitting of Court….”

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Rajasthan High Court

Laxmi Kanwar vs Laxman Singh on 19 May, 2004

Equivalent citations: I (2005) DMC 745

Author: N Mathur

Bench: N Mathur, K Acharya

JUDGMENT N.N. Mathur, J.

  1. This miscellaneous appeal filed under Section 19 of the Family Courts Act, is directed against the order of the Judge, Family Court, Jodhpur dated 1.4.2003 dismissing the appellant’s application filed under Section 13 of the Family Courts Act, 1984, hereinafter referred to as “the Act of 1984” read with Rule 22 of the Rajasthan High Court Family Court Rules, 1990, hereinafter referred to as “the Rules of 1990” seeking leave to be represented through a Counsel.
  2. This respondent-husband filed a petition in the Court of Judge, Family Court, Jodhpur against the appellant-wife under Section 13 of the Hindu Marriage Act, 1955, hereinafter referred to as “the Act of 1955” for divorce. The notice of the petition was served on the appellant-wife at her Kapadganj address in the State of Gujarat, where she is residing with her parents. She used to travel from Kapadganj to Jodhpur for attending the Family Court on dates of hearing, escorted by her parents. On account of illness, she could not appear on 17.5.2001, which led to ex parte proceedings against her. However, the ex parte proceedings were recalled by order dated 19.7.2001. It was a great harassment to her parents and herself to travel from Kapadganj to Jodhpur on every date of hearing. In these circumstances, leave was sought to be represented through Counsel. The application was opposed by the respondent-husband on the ground that the appellant-wife being an educated lady holding the qualification of M.A., B.Ed. and also a student of LL.B. final, could travel alone and defend her case. The respondent-husband placed reliance on a decision of the learned Single Judge of this Court in Smt. Kailash Bhansali v. Surendra Kumar, reported in 2000 (3) WLC (Raj.) 543. In the said case, the Judge, Family Court, Udaipur granted leave to the party to be represented through a Counsel. On appeal, the learned Single Judge of this Court set aside the said order with a cost of Rs. 10,000/-. The said judgment has been set aside by the Division Bench in special appeal being D.B. Special Appeal No. 550/2000 decided on 15.12.2000. However, the Judge, Family Court preferred to rely on the judgment of the learned Single Judge in utter disregard to the Division Bench judgment. In the opinion of the learned Family Judge, the difficulty of visiting Jodhpur for attending the Family Court on dates of hearing, could be redressed by directing respondent-husband to pay the actual expenses incurred. It was further observed that she is not only M.A., B.Ed. but also student of LL.B. The learned Judge, Family Court made a personal remark against the appellant-wife that she can defend her own case much more effectively than a Lawyer. Thus, the learned Judge, Family Court made a personal remark against the appellant-wife that she can defend her own case much more effectively than a Lawyer. Thus, the learned Judge by the impugned order dated 1.4.2003 rejected the application filed by the appellant under Section 13 of the Family Courts Act.
  3. The core question which arises for consideration in the instant appeal is that in the facts of the case as to whether the appellant-wife is entitled to appear through Counsel? In this connection, it would be apt to read Section 13 of the Act of 1984 as follows;
    • “Section 13. Right to legal representation-
    • -Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. It would be further relevant to refer to Rule 22 of the Rules of 1994, which is extracted as follows:
    • “Permission for representation by a Lawyer-
    • -The Presiding Officer of a Family Court, in his discretion, may permit a lawyer/Advocate to appear in the Court wherever he feels that it is necessary in the interest of justice.”
  5. The object of the Family Courts Act appears to be to establish such Counts with a view to promote conciliations and to secure speedy settlement of disputes relating to marriage and other family affairs and all other matters indicated therein. Thus, the Family Courts are supposed to adopt a radically different approach than what is adopted in ordinary civil proceedings. Section 9 of the Act of 1984 imposes a duty on a Family Court to assist and persuade the party to arrive at a settlement in respect of the subject matter of the suit or proceedings. Section 10 provides that subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being to force shall apply to the proceedings before the Family Court and the Family Court shall be deemed to be a Civil Court for the purpose of the Code and shall have all powers of such Court. However, Section 13 prohibits appearance of a lawyer in the proceedings as of right. It is significant to notice that while in all other civil proceedings as provided under Sub-rule (2) of Rule 1 of Order 5, C.P.C., the defendant may appear in person or by a pleader duly instructed and able to answer all material questions relating to suit but such a liberty is not available to a defendant in proceedings civil in nature in Family Court. It is further significant to notice that Order 5 Rule 4, C.P.C. provides that no party shall be ordered to appear in person unless he resides within the local limits of the Court’s ordinary jurisdiction or at a place less than fifty miles distance from the Court-house where there is an established public conveyance for one-sixths of the distance between the place where he resides and the place where the Court is situated or less than two hundred miles distance from the Court-house. Order 3 Rule 1 provides that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any laws for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing applying or acting, as the case may be, on his behalf : provided that any such appearance shall, if the Court so directs, be made by the party in person. Thus, a reasonable opportunity to defend has always been considered as an essential part of principles of natural justice. Unfortunately, there is a class of people, without having first hand experience of the working of Mufassil Courts, blames Lawyers for the delay in Court proceedings. In our opinion, far from delaying the proceedings, the presence of Lawyer makes it more smooth to expedite because of his knowledge of law and procedure and his training. The experience shows that in the matter of reconciliation in the matrimonial matters, the Lawyers have played a significant role. It is difficult to conceive a Court without a Lawyer. A Lawyer is gifted with natural quality, ability and experience not only to persuade the Judges on a point of fact or law, but also the parties to settle their dispute.
  6. Lord Denning in a leading case Pett v. Grayhound Racing Association Ltd., reported in (1968) 2 All England Reporter 545, observed thus: “I should have thought, therefore, that when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth, he has also a right to speak by Counsel or solicitors.”
  7. The Apex Court in Board of Trustees, Port of Bombay v. Dilip Kumar, reported in AIR 1983 SC 109, after referring to its earlier decisions in Kalindi v. Tata Locomotive, reported in AIR 1960 SC 914; Brooke Bond (India) Ltd. v. Subba Raman, reported in 1961 (2) LLJ 417; Dunlop Rubber Company v. Workman, reported in AIR 1965 SC 1392; and C.L. Subramaniam v. Collector of Customs, reported in AIR 1972 SC 2178, took a forward march to fair play in action and held that refusing to grant request defended by a Lawyer would amount to denial of reasonable opportunity to defend himself and the principle of natural justice would be violated.
  8. A learned Single Judge of the Gujarat High Court (Mathur, J.) in Mitesh Manubhai Sheth v. Secretary, Govt. of India, reported in AIR 1998 Gujarat 60, while considering the validity of the proviso to Regulation 28(5) of the Securities and Exchange Board of India Act, 1992, which provided complete embargo on inquiry officer even to consider request of stock broker to permit him to be defended through Lawyer, struck down the provision having found it to be violative of Articles 19 and 21 of the Constitution of India. It was held that the statutory provisions are required to be in consonance with the principles of natural justice inasmuch as the rights of a person having serious civil and pecuniary consequences, are not deprived except by a fair procedure. A bare reading of Section 13 of the Act of 1984 shows that a Lawyer has no absolute right to appear on behalf of the party before the Family Court but it is in the discretion of the Family Court to permit the Lawyer to appear. The use of words “as of right” in Section 13 is of significance. If the intention of the Parliament was to debar the Advocates absolutely from appearing in the proceedings of the Family Courts, the words “as of right” would not have been there. It has been left to the discretion of the Family Court.
  9. The Bombay High Court in Leela Mahadeo v. De Mahadeo Sitaram Joshi, reported in II (1991) DMC 125 (SC)=AIR 1991 SC 105, has taken the view that the Family Court should permit representation by Lawyers where complicated questions of law and facts are involved. However, the Allahabad High Court in Prabhat Narain Tickoo v. Mamta Tickoo, reported in II (1998) DMC 333, observed that such an approach will lead to unnecessary wrangles in almost every case on the question whether complicated question of law and fact are involved or not, and this will take a lot of time, and parties will very often go upto the Higher Court on this preliminary issue, causing great delay. In the opinion of the Allahabad High Court, whether complicated questions are involved or not will differ from Judge to Judge and hence a simpler, clearer, and more objective guideline is required to be adopted. It will be relevant to extract para 7 from the said judgment:
    • “7. In our opinion, the correct approach should be that the Family Court should not permit lawyers to appear before it when it is trying to seek reconciliation between the parties under Section 9 of the Family Courts Act. It may be mentioned that it is the first duty of the Court hearing matrimonial cases to try to reconcile the parties as envisaged by Section 9 of the Act. At this stage, Lawyers are not at all necessary, and it is for the Court to try to persuade the husband and wife to get reconciled. Lawyers may also not be allowed to appear on cases under Section 13B of the Hindu Marriage Act (divorce by mutual consent). However, if the reconciliation attempt fails, and the matter has to be adjudicated, in our opinion, the Court should ordinarily allow Lawyers to appear in behalf of the parties. This is necessary because Divorce Law and other Family Law has now become a complicated branch of law, and an ordinary layman cannot be expected to know this law. It may be mentioned that there is a catena of decisions both in England and India on this branch of law, and without a knowledge of the same, a party cannot represent himself/herself in the case, and only a trained Lawyer can do so. For example, Section 13(1)(ib) of the Hindu Marriage Act provides that separation for two years is a ground for divorce. A layman would probably think that proof of two years of physical separation alone is required for divorce on this ground, but the case law on this point is that mere physical separation for 2 years is not sufficient and the petitioner has also to prove animus diserendi i.e., intention to bring cohabitation permanently to an end. Similarly, cruelty is a ground for divorce, and the layman would ordinarily regard cruelty to mean physical cruelty, but by judicial decisions it has been interpreted to mean mental cruelty also. There is a catena of case law on this subject, and no layman can be expected to know this case law as it takes years to study and understand it. Moreover, a layman would be ignorant of procedural rules also. Hence it is obvious that a layman cannot ordinarily represent himself properly in such cases. Representation by Lawyers will not only be of great assistance to the parties, it will also be of great assistance to the Court to do justice expeditiously. Some people say that Lawyers will cause delay in the proceedings. In our opinion, far from delaying the proceedings, a Lawyer will greatly expedite it because by his knowledge of law and procedure and this training he can quickly come to the relevant points. Moreover, lawyers know the art of the cross-examination, and the rules of procedure, which a layman does not. Hence we are of the opinion that the discretion in granting/refusing representation by Lawyers must be exercised in the manner aforementioned, namely that at the stage when the Court is trying to reconcile the parties or when divorce is sought by mutual consent no Lawyer should ordinarily be permitted but otherwise when the matter is being adjudicated Lawyers should ordinarily be allowed to represent the parties.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  10. The Karnataka High Court in the case of Komal S. Padukone v. Principal Judge, Family Court reported in AIR 1999 Karnataka 427, observed that the Family Courts should adopt a practical and humane approach and arrange its work suitably having regard to the workload, in such a manner that the parties before it are not put to unnecessary inconvenience. The Court provided guidelines for the Family Court as follows:
    • “13. A combined reading of the Act and the rules with relevant provisions of C.P.C. make the following evident:
    • (i) A petition to the Family Court may be presented by a petitioner either in person or through an authorised agent. The petition may be presented even by an Advocate as an authorised agent. But, if the petitioner wants ‘representation’ by a legal practitioner, he/she should seek and obtain the permission of the Family Court.
    • (ii) A respondent, who is served with notice of the proceedings, may either appear in person or enter appearance through an authorised agent (including a legal practitioner). But, if the respondent wants to be represented by a legal Practitioner in the proceedings, he/she should seek and obtain the permission of the Family Court.
    • (iii) In regard to proceedings before the Family Court, ‘entering appearance’ in response to a notice/summons through an authorised agent (including a Legal Practitioner), is different from being represented in the proceedings by a legal practitioner.
    • (iv) While representation through Legal Practitioner without permission is barred, entering appearance in a case, in response to a notice/summons, through a Legal Practitioner is not barred, if a Legal Practitioner, having entered appearance, wants to represent party in the proceedings, permission of the Family Court should be obtained for such representation.
    • (v) When one party has been permitted to be represented by a Legal Practitioner, such permission cannot under any circumstances, be denied to the other party.
    • (vi) The authorised agent (or the Legal Practitioner permitted to represent a party) can prosecute or defend the proceedings and represent the party unless and until the Family Court makes a specific order to the parties to appear in person, either on a specified date or on further hearing dates, depending on the facts of the case and stage of the case. Once an order for personal appearance has been specifically made, a party will have to seek exemption from appearance, if he/ she is not able to appear in the matter.
    • (vii) Where a Family Court has a large backlog of cases, and there is no possibility of taking up all cases, listed on a day, it may restrict the requirement of personal appearance of parties to specified stages like conciliation and evidence.
    • (viii) Where it is possible to do so, consistent with the nature and circumstances of the case, the Family Court, either directly or through Counsellors, in the first instance, assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceedings.”
  11. The experience of Family Courts in the State of Rajasthan in absence of the Lawyers has been painful. It has become torturous for the parties, their parents and Presiding Judges as well. A Division Bench of this Court in Smt. Nandana v. Pradeep Bhandari, reported in I (1996) DMC 285=(1996) 2 WLC (Raj.) 234, has observed to the extent that the remedy has proved more harmful than the disease itself. It was desired that the Legislature should take a second look at the provisions of Section 13 contained in the Family Courts Act. We can do no better than extract the feelings of the Hon’ble Judges as contained in para 18 of the said judgment:
    • “18. Before parting with the case we feel it necessary to record that the way in which this litigation is being conducted by the parties leaves us sad. The purpose of keeping the Lawyers away from such litigation seems to be completely defeated in this case. Parties have to take upon themselves the task of pleading their respective cases as Lawyers have not been allowed. The decorum and dignity with which cases are normally conducted before the Civil Court with the aid of professionals steeped in the age-old traditions of the Bar are totally lost and unrestricted and relentless acrimony has taken their place. It cannot be believed that parties to such litigation prosecute it without the aid of Lawyers. If that is so, no useful purpose can be served by keeping the Lawyers out of the Court. When the Lawyers appeal before the Court as proxy to their clients, they are expected to have a subtle, studied sense of detachment from the cause of their respective clients and they are expected not to personally involve themselves in the cause. They have a responsibility towards the Court also. When the roles are reversed and the Lawyer is only expected to act behind the scenes, the litigant willy-nilly may become a proxy and the battle may be fought between the two Lawyers using the litigants as puppets or cat’s paw. The result is fierce no-holds-barred battle between two hapless persons estranged from each of the party. The purpose of keeping the Lawyers out of the Court is defeated and a litigant who finds himself unequipped and unable to plead his own case and who has in any case to depend on Lawyer for advice is deprived of the services in Court of a competent and responsible professional. It appears to be a case where the remedy has proved more harmful than the disease itself. It is high time, the Legislature takes a second look at the provision contained in Section 13 of the Family Courts Act, 1984.”
  12. We fully associate with the feeling expressed by the learned Judges in Smt. Nandana’s case (supra).
  13. Thus, on a combined reading of the provisions of the Act of 1984 and the Rules of 1990 with relevant provisions of the Code of Civil Procedure, it emerges that–
    • (i) a petition may be presented before the Family Court by a petitioner either in person or through an authorized agent;
    • (ii) a respondent, who is served with notice of the proceedings, may either appear in person or enter appearance through an authorized agent;
    • (iii) on appearance of the defendant, the Judge of the Family Court should proceed to hear the plaintiff and the defendant without looking into their pleadings with a view to understand their problem and persuade the parties to arrive at a settlement in respect of the subject matter of the suit or proceedings;
    • (iv) in case the conciliation fails and both or either of the parties submits an application of leave to be represented through a Lawyer, it should normally be granted more particularly in a case where the parties are to travel from outside the place of sitting of Court. In such an event, it is desirable that both the parties are allowed to be represented through Lawyers. If one of the parties is not inclined to engage a Lawyer, that should not be a ground to refuse the other party to be represented through a Lawyer;
    • (v) depending upon the facts and stage of the case, a specific order should be passed on which the parties in person are required to remain present. There should not be unnecessary insistence for the presence of the parties on each date of hearing; and
    • (vi) during trial, further attempt should be made for conciliation between the parties either directly or through the Counsellor or the Lawyers.
  14. In the instant case, the appellant wife is staying in Gujarat. It is torturous for her and her parents to travel to Jodhpur on each date of hearing. The convenience cannot be compensated in terms of money. Thus, there is no reason to deny her to services of a Lawyer. She may not have a claim to be represented through a Lawyer as of right but if the convenience so required, it is obligatory on the Court to extend such facility. The proviso to Section 13 casts a duty on the Court to consider if in the interest of justice, the assistance of a legal expert as amicus curiae is necessary. The learned Judge of the Family Court in the facts of the case has committed an error in refusing the appellant to be represented through a legal practitioner.
  15. Consequently, the miscellaneous appeal is allowed. The order of the Judge, Family Court dated 1.4.2003 is set aside. The application filed by the appellant Smt. Laxmi Kanwar under Section 13 of the Act of 1984 is granted. She is allowed to be represented through a legal practitioner. Learned Judge, Family Court will pass an appropriate order with respect to her presence in the Court on the date of hearing.

 

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Husband can appoint agent to appear at family court. Need NOT appear in person for all dates. Madras HC

Judgement of Hon Madras HC that can be used by NRIs & other husbands living out of station. Hon HC orders that a husband can appoint an agent who is not a lawyer to appear on husband’s behalf. However husband cannot completely be absent (later in the proceedings) because counseling between couples is possible only if parties appear in person. The Hon HC also quotes other cases where it is decided the power agent cannot be cross examined on intimate matters (i.e.) husband to appear only on those occasions.

The Hon HC says “…18. Thus, it is now well settled legal position that there is no legal impediment under the Family Courts Act, for a Power of Attorney to appear on behalf of the Principal and the only legal embargo is that the recognised agent should not be a legal practitioner. Any person, not being a legal practitioner, can be nominated as an agent under Order 3 Rule 2 CPC, to prosecute or defend the parties and until the Family Court passess any specific order, directing appearance of the party, depending upon the facts and circumstances of the case….”


Madras High Court

Terance Alex vs Mary Sowmya Rose on 16 December, 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.12.2010

CORAM

THE HONOURABLE THIRU JUSTICE S. MANIKUMAR

C.R.P.(NPD)No.4361 of 2010

Terance Alex                                … Petitioner

Vs.

Mary Sowmya Rose                                    … Respondent

This Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the order of the IInd Additional Judge, Family Court, Chennai and to entertain the petition by the petitioner in S.R.No.11590 of 2010 in  I.D.O.P.No.3447 of 2009.

For Petitioner    :   Mr.P.Prakash Paul

O R D E R

  1. The issue involved in this Civil Revision Petition is whether a power of attorney can represent a party to matrimonial proceedings in family Court.
  2. Short facts leading to the Civil Revision Petition are as follows: After marriage, the petitioner went to United Kingdom for his employment, leaving the respondent-wife, at his parental house at Utchakkada. Subsequently, the respondent also joined him on 01.03.2009 and that they were leading a happy life. On the request of respondent’s father to meet her family members, she left United Kingdom on 14.05.2009 and reached Chennai. Due to the ill-advise of her father, complaints were lodged against the petitioner under various non-bailable offences, with a motive to prevent him to come down to Chennai and meet her. Without any reasonable cause, she had withdrawn from her conjugal duties and therefore, the petitioner was constrained to file a petition before the Family Court at Trivandrum, Kerala for the relief of restitution of conjugal rights, appointing Mr.Manu, as his lawful power of attorney agent. The said case is pending. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. In the mean while, the respondent filed a petition for Divorce in I.D.O.P.No.3447 of 2009. Even without serving any notice to the petitioner, the respondent by way of Civil Revision Petition, has got an order, as ‘notice sufficient’ and on that basis, an ex parte order was passed against him on 01.11.2010. It is the case of the petitioner that when he has filed a Petition for restitution of conjugal rights in Case No.981 of 2010 before the Family court at Trivandram, through his Power Agent, Mr.Manu, to appear and represent on his behalf in the matrimonial case filed against him by the respondent-wife in I.D.O.P.No.3447 of 2009 before the 2nd Additional Family Court, Chennai and the said agent is also empowered to file petitions or applications before the Family Courts, Metropolitan Magistrate Courts and other Civil Courts, on his behalf or in any proceedings, Civil or Criminal or Matrimonial, arising out of the said case, the ex parte order was invalid.
  4. However, explaining the inability to appear in person, as he is presently working in a foreign country, the petitioner has filed an application to set aside the abovesaid ex parte order, dated 01.11.2010 in I.D.O.P.No.3447 of 2009 under Order 9 Rule 13 CPC., through his power agent. In addition to the above, he has also taken out an application under Order 3 Rule 1 CPC., to grant permission to Mr.Manu, to represent in the above IDOP., on his behalf. The learned 2nd Additional Family Court Judge, by an order, dated 23.11.2010, has returned the application with an endorsement as follows:
    • “The application is filed by the (party-in-person) power agent. The case was set exparte on 01.11.2010. Power of Attorney not entertained to file this petition. Petition should be present. How this petition is maintainable. To be stated.”
  5. Being aggrieved by the endorsement made by the Learned Second Additional Family Court Judge, Chennai and refusal to entertain the application filed to set aside the ex parte order, the present revision petition has been filed by the authorised power agent.
  6. Taking this Court through the general power of attorney, executed by Mr.Terance Alex, revision petitioner, authorising Mr.Manu, his close relative and family friend to appear and represent on behalf of the revision petitioner in the matrimonial and other cases and to file applications or petitions before the Family Court and other Courts, on his behalf, arising out of the abovesaid proceedings, Mr.P.Prakash Paul, learned counsel for the petitioner submitted that since the revision petitioner is now residing in Dubai, UAE, he could not appear in person to file an application to set aside the order and also to contest the proceedings in I.D.O.P.No.3447 of 2009.
  7. Learned counsel for the petitioner also brought to the notice of this Court that the said Mr.R.Manu, has already represented the revision petitioner, in a proceeding instituted for restitution of conjugal rights before the Family Court at Trivandum, Kerala and therefore, there is no impediment for the authorised agent to file an application to set aside the ex parte order passed by the Second Additional Family Court Judge, Chennai.
  8. Placing reliance on the orders of this Court in S.M.Syed Amina Beevi v. Thaika Sahib Alim reported in I (1994) DMC 557 and Pavithra v. Rahul Raj reported in 2003 (2) LW 431, learned counsel for the petitioner submitted that the application filed under Order 3 Rule 1 CPC., filed by the authorised agent to represent the revision petitioner, who is now residing in Dubai, UAE, ought to have been ordered. He therefore submitted that a suitable direction may be issued to the learned 2nd Additional Family Court Judge, Chennai, to grant permission to the authorised agent, Mr.R.Manu, to represent the revision petitioner in all proceedings, arising out of I.D.O.P.No.3447 of 2009.
  9. Heard the learned counsel for the petitioner and perused the applications filed under Order 3 Rule 1 CPC., and Order 9 Rule 13 CPC. The revision petitioner, who is now residing at V-Castle Electro Mechanical Contractor, LLC, P.No.5983, Ajman-UAE, has nominated and appointed Mr.R.Manu, his close relative and Family friend to be the lawful power of attorney agent to act on his behalf and perform all or any of the acts, including,
    • (i) To appear and represent me on my behalf for the matrimonial case, Criminal cases and other Civil cases filed against me by my wife Mrs.Sowmya Rose, daughter of Mr.John Rose, especially in O.P.No.3447 of 2009 Hon’ble 2nd Additional Family Court, Chennai.
    • (ii) To sign any forms prescribed in connection with the said matrimonial and related disputes.
    • (iii) To file petitions or applications before the Family Courts, Metropolitan Magistrate Courts and other Civil Courts in my name and on my behalf or any proceedings Civil or Criminal or Matrimonial arising out of the said case and to prosecute the same and for the said purpose to sign and verify all vakalth and petition, appeals, pleadings and other documents that may be necessary thereof.”
  10. The general power of attorney seemed to have been executed before the Consulate General of India, Dubai and an attested copy of the same has been filed before the Family Court. Both the supporting affidavit and petitions under Order 9 Rule13 CPC and Order 3 Rule 1 CPC., have been executed before the Consulate General of India, Dubai. The concerned affidavit of Power of Attorney holder, Mr.R.Manu, has been executed on 24.11.2010 at Chennai. In his affidavit, the authorised agent has stated that he is a close friend of the revision petitioner and that he has been contesting the petitioner’s case for restitution of conjugal rights before the Family Court at Trivandrum and as such, he knows the facts and circumstances of the case. In the said affidavit, he has further prayed that he may be permitted to present the case on behalf of the revision petitioner to appear on every hearing.
  11. It is relevant to extract few provisions of the Family Courts Act.
    • “Sec 10. Procedure generally.-
    • (1) Subject to the other provisions of this Act and rules, the provisions of the Code of Civil Procedure, 1908(5 of 1908), and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974), before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.
    • (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), or the rules made thereunder, shall apply to the proceedings under Chapter IX of the Code before a Family Court.
    • (3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.
    • Sec 13. Right to legal representation.
    • Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right to be represented by a legal practitioner:-
    • Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right to be represented by a legal practitioner:
    • Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.
    • Sec 20. Act to have overriding effect.-
    • The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
  12. In S.M.Syed Amina Beevi v. Thaika Sahib Alim reported in I (1994) DMC 557, wife sent a petition for divorce by registered post to the Family Court. The Sherishtadar of the Family Court, Chennai, returned the papers, with the following endorsement, “Returned, Received by post. To be presented in person by the concerned party”. Being aggrieved by the same, wife filed an unnumbered revision petition before this Court, contending inter alia that none of the provisions of the Act or the rules made thereunder specifically provide the mode of presentation and in view of the provisions contained in the Code of Civil Procedure, 1908, the papers can be presented by a recognised agent or party in Court and that at any rate, in view of the fact that the petitioner therein belongs to a category of ‘exempted persons’ in respect of personal appearance before the Court, the right of the petitioner to present the papers either through a recognised agent or by registered post should be considered and consequently, permission to that extent ought to have been granted, if necessary and that therefore, the manner in which the papers of the petitioner therein were returned cannot be said to be either appropriate or valid in law. After considering the statutory provisions stated supra, this Court, at Paragraph 12, held as follows: “I have already expressed the view that the prohibition contained in Section 13 of the Family Courts Act is only vis-a-vis a legal practitioner and not in respect of a recognised agent permissible under the provisions of Order 3 Rule 1 of the Code of Civil Procedure, which is rendered applicable by the provisions contained in Section 10 of the Family Court Act to the extent to which there is no provision otherwise contained to the contra. The petitioner in my view therefore is entitled to have the papers filed or presented before the Family Court through a recognised agent in terms of Order 3, Rule 1, and such a recognised agent at any rate cannot be a legal practitioner. This in my view, has got to be limited or confined to the stage of presentation or tiling of the matters only. The petitioner cannot take advantage of the other provisions contained in Order 3, Rule 1 or Order 4, Rule 1 or Section 132 of the Code of Civil Procedure, once and for all, to avoid personal appearance before the Family Court and claim to have the adjudication through such a recognised agent, on account of the peculiar provisions of law governing the adjudication in the Family Courts. The provision of Section 9 of the Family Courts Act looms large and acquires significance for consideration in this regard. Section 9 of the Act specifically provides that in every suit or proceedings, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceedings and the endeavour of efforts shall be in accordance with the Rules. Personal appearance or presence of the party concerned becomes therefore inevitable and necessary, at any rate from the stage of hearing after the appearance of the other side to the proceedings, and the efforts contemplated to be made by the Family Court under the statute cannot be effectively carried out through a recognised or authorised agent of the party and having regard to the sensitive nature, personal feelings and behavioural attitudes to be assessed by the Court in carrying out the mandate contained in Section 9 of the Family Courts Act. Personal appearance, though, not initially required, becomes absolutely necessary after the appearance of the respondent to the proceedings- I am of the view that the petitioner shall be at liberty to present the application through a recognised or an authorised agent other than the legal practitioner as contemplated under Order 3, Rule 1 of the Code of Civil Procedure, and the Family Court at the same time is entitled to insist upon the personal appearance of the petitioner or any party concerned for the matter for all subsequent or further stages of the hearing, after the appearance of the respondent or from the stage of hearing even when the respondent, fails to appear or remains ex parte to the proceedings. Subject to the above declaration of the. position of law regarding the procedure to be followed and the duties and obligations of the petitioner to make personal appearance in Court before the family Court, as and when so stipulated or directed or indicated by that Court the petitioner shall have the right to present the papers through a recognised agent other than a legal practitioner, as contemplated under Order 3, Rule 1 of the Code of Civil Procedure.”
  13. Accordingly, this Court directed the Registry to return the original papers, pertaining to the original petition enclosed with the revision petition filed in the Court to the Learned Counsel for the petitioner therein, so as to enable the petitioner to present the same before the Family Court for further course of action. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  14. In Pavithra v. Rahul Raj reported in 2003 (2) LW 431, petitioner’s father filed an application under Order III Rule 2 and Section 151 of CPC seeking permission of the Court to defend HMOP.No193 of 2002 on behalf of the petitioner therein. The said application was returned by the court below and the petitioner therein was set ex-parte on 20-05-2002 itself. The petitioner’s father re-presented the above petition on 21-05-2002 with an endorsement that the petitioner therein had executed a power of attorney in his favour and by virtue of the same, the application has been filed. Again, the said application was returned by the family court relying upon the unreported Judgment of this Court in a Transfer CMP that the presence of the parties on each date of hearing is mandatory. Aggrieved by the same, a revision petition has been filed. The point for consideration in the reported case was whether the petitioner therein,who was abroad and not able to come to India, can authorise an agent to defend the case on her behalf and whether the personal appearance of the parties was required, at each and every stage. After considering the statutory provisions and the decisions made in S.Venkataraman v. L.Vijayasaratha reported in 1996 (1) LW 222, Mrs.Komal S. Padukone v. Principal Judge, Family Court Bangalore City and another reported in AIR 1999 Kant. 427 and S.M.Syed Amina Beevi v. Thaika Sahib Alim reported in I (1994) DMC 557, this Court, at Paragraphs 13 and 14, held as follows:
    • “13. In Section 10(3) it is contemplated that “Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.” Similar provisions are seen in Order 32 A Rule 3 and 4 of CPC for conciliation. The said provisions of Order 32 A were incorporated by C.P.C. Amendment Act 1976 with effect from 01-02-1997, however operate retrospectively to all pending cases. It is evident that Parliament has been consistent in speedy disposal and settlement of Family Cases. It is the onerous duty of the family courts to make endeavour for conciliation and it is not right to say that the opposite party did not appear in person and no scope for reconciliation. Even in such a case, the court is required to again issue notice to the party to appear.
    • 14. Order 3 Rule 1 of CPC empowers a party in a suit or proceedings to be represented by a pleader, but so far as the proceedings in the Family Courts are concerned, the right of representation by the pleader does not exist. The operation of Order 3 Rule 1 is subject to any law for the time being in force. In addition to the said exclusion in the code, Section 13 of Family Courts Act prohibits the operation of Order 3 Rule 1 to the extent that the case being represented by the legal practitioner. The recognised agent appointed under Order 3 Rule 2 stands on a different footing from pleader. However, recognised agent cannot be a legal practitioner. The embargo on the appearance of legal practitioners should not be extended to recognised agent. There is no prohibition in the Act or Rules a petition being filed by an authorised agent who is not legal practitioner. The recognised agent can prosecute or defend or represent until Family Court passes specific order directing the party to appear in person, depending upon the facts and stage of the case. Personal appearance of the parties is inevitable to comply with mandatory provisions of the Act. In this case, the authorised agent has filed a petition seeking permission to defend the case on the ground that she is not able to come to India and contest the case. Such a permission cannot be granted. Hence, the said petition is liable to be rejected and rejected accordingly.”
  15. In Nathiya Faru v. Rojan Roux reported in 2009 (6) MLJ 945, the marriage between the parties were solemnized in India on 24.04.2000 and thereafter, they moved to France. Three children were born in France. Due to difference of opinion, husband filed M.O.P.No.6 of 2008 on the file of the Family Court, Pondicherry, for dissolution of marriage. Since the children were in France, mother has necessarily to be in France. She could not come over to Pondicherry for every hearing of the case. Therefore, her mother preferred a petition for permission to represent on behalf of her daughter, Roux Pauline, as Power Agent to defend the case. Opposition was made by the husband, stating that there was no necessity to grant permission to the petitioner to defend her daughter, since she can go over to Pondicherry to defend the case. After hearing both parties, the Family Court, Pondicherry turned down the request of the petitioner, by observing that in Family Courts, appearance of the parties are inevitable, in view of the duty cast upon the Family Court to make every endeavour to settle the matter by counselling.
  16. Being aggrieved by the same, wife filed revision petition before this Court, contending inter alia that the provisions of the Family Courts Act do not prohibit appearance of any person, on behalf of a party before the Family Court, not having any legal profession and in such circumstances, the Family Court ought to have permitted her mother to represent the case. On the facts of the case, it was contended that it would be extremely difficult for the wife to attend every hearing at Pondicherry. Reliance was also placed on a decision of this Court in Pavithra v. Rahul Raj reported in 2003 (2) LW 431, Dr.K.Malathi v. Dr.S.Rajasekaran reported in 2003 (2) MLJ 33 and Sakunthala v. Anandarajan reported in 2008 (1) MLJ 182. After considering the law laid down in the above referred judgment, a learned Single Judge, at Paragraphs 11 to 13, held as follows: “11. As far as the permission to be granted to the Power Agent is concerned, the general principles holding the field are discussed in Sakunthala’s Case (supra). Insofar as the proceedings in matrimonial cases which are being conducted under the special statutes, Family Courts Act are concerned, the peculiar circumstance available is that no legal practitioner is allowed to appear for parties. In such circumstances, if any of the party to the proceedings is prevented from appearing before the Court and which cause is satisfactory to the Court, there is no legal impediment to grant permission in this regard. The decisions of this Court have thrown much light on the subject, which go to show that the parties are at liberty to present through the authorised agents on various hearings and as and when the court is of the opinion that the presence of the party is required for the purpose of counselling or for possible or amicable settlement, then he may be directed to appear before the Court to proceed further. 12. As far as appearing as witness on behalf of the principal is concerned, the principles laid down in Sakunthala’s case (Supra) have to be followed. At the time of the examination of the parties, it is for the Court to follow the procedures and guidelines as formulated in the above said decision and other decisions on this point. 13. As for the hearings of the case earlier to the commencement of the trial, granting permission to the petitioner to represent her daughter, would meet the ends of justice. Taking note of the peculiar circumstances available here, this Court is of the considered view that the request of the petitioner has to be heeded to.”
  17. It is worthwhile to extract the decisions in Dr.K.Malathi v. Dr.S.Rajasekaran reported in 2003 (2) MLJ 33 and Sakunthala v. Anandarajan reported in 2008 (1) MLJ 182, reproduced in Nathiya Faru’s case.
    • “9. Learned Counsel for the petitioner also garnered support from a decision of this Court in 2003 (2) CTC 166 [Dr. K. Malathi v. Dr. S. Rajasekaran], in which it has been observed that since the appearance of legal practitioner before the Family Court is barred by statute, there is no stumbling block for the Court to permit any person to represent a party in a matrimonial matter. The following is the relevant portion of the judgment, “10. It is clear that in the light of Section 13 of Family Courts Act, Order 3, Rule 1 of Section 132, CPC, no party to the Family Court seek dispensation once for all, to avoid personal appearance and claim to have the adjudication through a recognised agent on account of the peculiar provisions of law governing the adjudication in the Family Court. Undoubtedly, from the stage of hearing, after the appearance of the either side to the proceedings, considering the peculiar and sensitive nature of the lis, personal feeling, behavioral attitudes to be assessed by the Court, it is, but proper that appearance of the parties become necessary. To put it clear that though the parties are at liberty to present through an authorised agent other than the legal practitioner as contemplated under Order 3, Rule 1 CPC, at the stage of examination/hearing, it is for them to appear in person.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    • 10. Learned Counsel for the respondent cited another authority of this Court in 2008 (1) MLJ 354 [Sakunthala v. Anandarajan and Anr.] in which a settled principle, that is to say, a Power of Attorney holder can appear as witness only in the capacity as a witness in his personal capacity and wherever knowledge he has about the case, he can state orally and he cannot appear as witness in the capacity of that party. While adverting to this position, the learned Counsel for the respondent also says that since the affairs which are more specific and intimate between the spouses could not be expected to be spoken by the mother of the wife and her evidence, even if it comes to record, may not be useful. It is the crux of his contention that the mother at any cost, could not represent her daughter. This court in the above said decision has held as under: “9. The Supreme Court has considered the judgment of the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan [AIR 1998 Raj. 185], wherein it was held that the word “act” under Order 3 Rule 2, C.P.C. Does not include the act of power of attorney holder to appear as witnesses on behalf of the party. It was further held that the power of attorney holder can appear only as a witness on behalf of the party in the capacity of that party. It was further observed that even if the plaintiff is not able to appear before the Court, the plaintiff is not left in the lurch. There is a provision for appointment of Commissioner for recording evidence under C.P.C.”
  18. Thus, it is now well settled legal position that there is no legal impediment under the Family Courts Act, for a Power of Attorney to appear on behalf of the Principal and the only legal embargo is that the recognised agent should not be a legal practitioner. Any person, not being a legal practitioner, can be nominated as an agent under Order 3 Rule 2 CPC, to prosecute or defend the parties and until the Family Court passess any specific order, directing appearance of the party, depending upon the facts and circumstances of the case.
  19. In the light of the decisions stated above, this Court wanted to ascertain from the learned counsel appearing for the revision petitioner, as to whether Mr.R.Manu, nominated as the power agent of the petitioner to represent him, in the Family Court, is a legal practitioner or not. On instructions, Mr.Prakash Paul, learned counsel for the revision petitioner submitted that the nominated agent is a legal practitioner. In view of the settled legal position, he cannot be permitted to represent the revision petitioner.
  20. Hence, on facts, the endorsement of the Family Court, cannot be found fault with. However, in future, the Family Court before returning any application filed under Order 3 Rule 1 CPC., is directed to ascertain and get a declaration from the recognised agent that he is not a legal practitioner, preferably, in the supporting affidavit, filed along with the petition under Order 3 Rule 1 CPC., so as to avoid any delay. In view of the Registry is directed to return the original papers, enclosed with the revision petition filed in this Court to the learned counsel for the petitioner, after getting the attesting copies of the same, for further course of action.
  21. In the result, the Civil Revision Petition is dismissed. No costs.

16.12.2010

skm

S. MANIKUMAR, J.

skm

To

The IInd Additional Judge, Family Court, Chennai.

C.R.P.(NPD)No.4361 of 2010 16.12.2010

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