Tag Archives: party in person

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.

 

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Husband to be represented by POA & counsel at Family court! MP HC

MP HC permits NRI Husband to be represented by POA & counsel (his own father!!) at Family court! This case can be used by ALL NRI / outstation husbands. Also please check this blog timeline for similar cases from various HC
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In this case, A Husband who is abroad is unable to attend court dates. He is set to ex party. Husband appeals to HC who permits husband to appear thru his father and counsel at the family court ! classic case that can be used by NRI and outstation husbands

Madhya Pradesh High Court

Jemini Bhargava vs Smt. Pranjali Parashar on 5 July, 2012

Criminal Revision No.1141/12

05.07.2012.

Shri Ajay Gupta, learned counsel for petitioner.

Heard finally.

This revision under Section 397/401 of Cr.P.C.has been filed in order to set aside Order dated 1.6.12 passed by Principal Judge, Family Court, Bhopal by which request of petitioner to appear through power of attorney holder and permission to represent by a counsel has been rejected.

Learned counsel for petitioner submits that on the given date, i.e., 26.6.12, petitioner who is working in a foreign country (Australia), could not appear so Court has proceeded ex parte and now case has been fixed for ex-parte evidence on 17.7.12.

Learned counsel for petitioner submits that application has been rejected mainly on the ground that reconciliation is must and without personal appearance no reconciliation can be made. Learned counsel for petitioner submits that there is no hope of compromise and his party is not willing to do any compromise. He submits that respondent/wife is not entitled for any maintenance allowance as she was earning. Reliance has been placed on a decision of Apex Court in Mrs.Komal S.Padukone vs. Principal Judge, Family Court at Bangalore City and another AIR 1999 Karnataka 427.

The relevant para 14 is quoted below :-

“In this case the wife is staying in United States. She left India
before the notice was served. She has stated that it will be
difficult for her to come over to India before July,1999. She,
therefore, sought permission to engage a counsel and exemption from
personal appearance till July,99. There is nothing unreasonable about
either of the requests. As a result of rejection of her applications,
she has been placed ex parte. If the order is allowed to stand, it
would cause irreparable injury to her.”

Looking to the circumstances of the case together with the ratio of the above decision, Order dated 1.6.12 is hereby quashed and learned Principal Judge, Family Court, Bhopal is directed to permit petitioner Jemini Bhargava to be represented by power of attorney holder who is his father and by his counsel. Petitioner shall be permitted to take part through his counsel and power of attorney holder. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

With the above directions, this petition stands disposed of.

(M.A.Siddiqui) Judge.

Jk.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Seek Xemption from persnl aperanc @ famlycourt. IF oneside represnt by counsel otherside 2 b allowed.KarHC

In this case  The husband sought leave of the Family Court to be represented through a Counsel. Accordingly, the Court permitted the husband to be represented by Counsel from the inception of the case. Wife who was at Mumbai gets a job and goes to USA. So she seeks both permission to be represented by counsel and exemption from personal appearance. Family court disallows both. Karnataka HC appreciates the facts and decrees.

“10. There is nothing in Act or rules which prohibits a petition being filed by an authorised agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an agent (attorney holder). Even a Legal Practitioner who holds a power of attorney to present the petition, may ‘present’ a petition, but may not be able to ‘represent’ the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an authorised agent on the date fixed for appearance. A respondent can enter appearance through an authorised agent (who can also be a Legal Practitioner) with an application seeking permission to be represented by a Legal Practitioner…” and

11. A party may choose to appear through and be represented by an authorised agent other than a Legal Practitioner, in which event permis-sion under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a Legal Practitioner, the parties may be represented by authorised agents other than a Legal Practitioner. But, if one side has been permitted to be represented by a Legal Practitioner, the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To do so would be in violation of principles of natural justice….”
Since this procedure is gender neutral, Husbands should be able to use this to their benefit !!


Karnataka High Court

Mrs. Komal S. Padukone vs Principal Judge, Family Court, … on 19 February, 1999

Equivalent citations: II (1999) DMC 301, ILR 1999 KAR 2811, 1999 (5) KarLJ 667

Bench: R Raveendran

ORDER

  1. The second respondent is the husband and the petitioner is the wife. The husband filed MC No. 401 of 1998, on the file of the Principal Judge, Family Court, Bangalore, against the wife, under Section 13 of the Hindu Marriage Act, 1955 for divorce, on the ground of desertion and cruelty. The husband sought leave of the Family Court to be represented through a Counsel. Accordingly, the Court permitted the husband to be represented by Counsel from the inception of the case.
  2. At the time when the divorce petition was filed, the wife was staying at Mumbai, with her parents. The Family Court issued a notice to her to her Mumbai address, calling upon her to appear before the Court on 3-8-1998. By then the wife obtained a job in USA and left the country in July 1998 itself. The notice of the proceedings was served on the wife’s father.
  3. The wife made two applications before the Family Court on 12-11-1998 – IA II under Section 13 of the Family Courts Act, 1984 (for short, ‘the Act’), seeking leave of the Court to engage an Advocate; and IA III under Section 151 of the CPC, read with Section 13 of the Act, for dispensation of her personal presence in the matter till July 1999. The husband resisted both the applications.
  4. The Family Court by a common order dated 24-11-1998, dismissed both the applications and ordered that the case be listed on 19-12-1998 for the appearance of the wife (respondent before the Family Court). The Family Court held that in a proceedings before it, the respondent will have to appear in person and then obtain leave of the Court to engage a Counsel; and without appearing in person, a respondent in a divorce petition can neither seek permission to engage, nor engage the services of a Legal Practitioner. In regard to IA III, it held that it is necessary to attempt reconciliation before the matter is proceeded with and unless the party appears, reconciliation is not possible; and therefore there is no justification for seeking exemption from personal appearance till July 1999.
  5. As a consequence of rejection of the two applications, the matter will be proceeded ex parte, as the wife will not be able to appear in person on the next date of hearing fixed for her appearance. Feeling aggrieved, the petitioner herein (wife) has filed this petition and sought quashing of the order dated 24-11-1998, rejecting IAs II and III.
  6. A preliminary objection is raised by the learned Counsel for the second respondent (husband) on the ground that a writ petition is not maintainable against an order on an interlocutory application, passed by a Family Court. Normally, this Court will not entertain writ petitions against interim orders of the Family Courts. But, a writ petition may be entertained when the order is made without jurisdiction or in violation of principles of natural justice or specific provisions of a statute, or is arbitrary and unreasonable leading to failure of justice. Having regard to the questions involved, it cannot be said that the petition is maintainable.
    • 6.1. The following questions arise for consideration:
    • (a) Whether a party cannot seek exemption from personal appearance and permission to engage Counsel, unless he/she appears in person before the Family Court.
    • (b) Whether a respondent who is unable to appear personally or who does not appear personally, has no right to contest a proceedings before Family Court.
    • (c) Whether the Family Court having granted permission to the petitioner before it, to engage a Legal Practitioner, deny such permission to the respondent in the same proceedings.
  7. Section 10 of the Act, provides that subject to other provisions of the Act and the rules, the provisions of Civil Procedure Code, 1908 and of any other law for the time being in force, shall apply to the proceedings before a Family Court and the Family Court shall be deemed to be a Civil Court for the purposes of the Code and shall have all the powers of such Court. Section 13 of the Act provides that 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. 7.1 Section 9 of the Act requires the Family Court to endeavour 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 proceedings and for that purpose the Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. Rule 7 of the Karnataka Family Courts (Procedure Rules), 1987, provides that the Family Court shall make such effort for bringing about a reconciliation or settlement between the patties in the first instance, where it is possible to do so consistent with the nature and circumstances of the case in such a manner as it deems fit, with the help of counsellors nominated by the Court. 7.2 Sub-rule (2) of Rule 1 of Order V of the CPC, provides that a defendant to whom summons has been issued under sub-rule (1) may appear in person or by a pleader duly instructed and able to answer all material questions relating to the suit, or by pleader accompanied by some other person able to answer all such questions. Order V, Rule 4 provides that no party shall be ordered to appear in person unless he resides within the local limits, of the Court’s ordinary original jurisdiction; or at a place less than fifty miles from the Court-house; or where there is an established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate, less than two hundred miles distance from the Court-house; Order III, 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 suit, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised 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.
  8. A reasonable opportunity to defend oneself, is an essential part of the principles of natural justice. Where one side is represented by a legally trained mind, refusal of permission to the other side to be represented by a legally trained mind has always been held to be in violation of the principles of natural justice.
    • 8.1 In Board of Trustees of the Port of Bombay v Dilip Kumar Raghavendranath Nadkarni and Others, the Supreme Court while dealing with the right of an delinquent employee to claim representation by a Counsel in a domestic enquiry observed thus: “Where in an enquiry before a domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a Legal Practitioner, the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice”.
    • 8.2 In J.K. Aggarwal v Haryana Seeds Development Corporation Limited, the Supreme Court held that while the right to be represented by a lawyer may not in all cases be held to be a part of natural justice, where the presenting officer is a Legal Practitioner, refusal of services of a Legal Practitioner to the delinquent employee would amount to denial of natural justice. The Supreme Court held that when a person who is not legally trained is required to defend a proceedings where the other side is represented by a legally trained mind, then the combat would be unequal entailing miscarriage or failure of justice and denial of a real and reasonable opportunity for defence.
    • 8.3 If the petitioner in a proceedings has already been permitted to be represented by a Legal Practitioner, refusal of permission to respondent to be represented by Counsel, will therefore be violative of principles of natural justice and the provisions of the Act.
  9. The provisions of Code of Civil Procedure apply to proceedings before the Family Court, except where there are provisions to the contrary in the Act or the rules. A Family Court is a Civil Court having all powers of a Civil Court, except when dealing with a proceeding under Chapter IX of Code of Criminal Procedure. The procedure to be adopted by Family Courts in dealing with and deciding cases before it will be the same as applicable to summary proceedings under Code of Civil Procedure, subject to the following modifications:
    • (a) The Family Court shall endeavour in the first instance, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceeding, where it is possible to do so consistent with the nature and circumstances of the case -[Section 9(1)];
    • (b) In addition to the general power to adjourn the proceedings, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a settlement, if it appears to the Family Court that there is a reasonable possibility of a settlement – [Section 9(2)];
    • (c) A Family Court may lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of tbe proceedings or at the truth of the facts alleged by one party and denied by the other – [Section 10(3)];
    • (d) The proceedings may be held in camera, if the Family Court so desires and shall be so held if either party so desires – (Section 11);
    • (e) A Family Court may secure the services of Medical Experts and Welfare Experts to assist in discharging its functions under the Act – (Section 12);
    • (f) The parties are not entitled, as of right, to be represented by a Legal Practitioner – (Section 13).
    • (g) A Family Court may seek the assistance of a legal expert as amicus curiae – (Section 13);
    • (h) A Family Court may receive as evidence, any report, statement, document, information or other matter, that may, in its opinion, assist it to deal effectively with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 – (Section 14);
    • (i) Recording of oral evidence may be summary in nature (Section 15). The Family Court may receive evidence of formal character, by way of affidavit (Section 16). It is not obligatory to frame issues. The judgment shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision – (Section 17).
  10. There is nothing in Act or rules which prohibits a petition being filed by an authorised agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an agent (attorney holder). Even a Legal Practitioner who holds a power of attorney to present the petition, may ‘present’ a petition, but may not be able to ‘represent’ the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an authorised agent on the date fixed for appearance. A respondent can enter appearance through an authorised agent (who can also be a Legal Practitioner) with an application seeking permission to be represented by a Legal Practitioner.
  11. A party may choose to appear through and be represented by an authorised agent other than a Legal Practitioner, in which event permis-sion under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a Legal Practitioner, the parties may be represented by authorised agents other than a Legal Practitioner. But, if one side has been permitted to be represented by a Legal Practitioner, the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To do so would be in violation of principles of natural justice.
  12. The ideal situation under the general scheme of the Family Courts Act would be where proceedings are initiated by a husband or wife by presenting a petition in person; notice is issued to the other side; other side appears in person; neither party is represented by any lawyer, unless permitted by the Court; the Family Court at the first instance endeavours to bring about a settlement either by itself or with the assistance of welfare experts/Counsellors; When such endeavour fails, the respondent is given an opportunity to file objections and then evidence is recorded and decision is rendered; and the entire process takes only about 3 to 6 months. But an ideal situation is different from normal practical situation. For example in a place like Bangalore, each Family Court has a huge pendency. Every day, a large number of cases are listed and called for preliminary hearing, for conciliation, hearing on interlocutory matters, evidence and final arguments. Very few of them can be taken up for evidence or hearing. It is practically impossible to take up for evidence, all cases listed. The cases drag on for several years for one reason or the other. Each case undergoes thirty to forty hearing dates, in some, many more. Many of the parties are illiterate or working somewhere. Many of women litigants require the assistance of others, even to come to Court. In such circumstances, to require all parties to be personally present on every date of hearing, would add to the misery and hardship of litigants. The Family Court should therefore 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.
  13. A combined reading of the Act and the rules with relevant provisions of the CPC 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.
  14. In this case the wife is staying in United States. She left India before the notice was served. She has stated that it will be difficult for her to come over to India before July 1999. She therefore sought permission to engage a Counsel and exemption from personal appearance till July 1999. There is nothing unreasonable about either of the requests. As a result of rejection of her applications, she has been placed ex parte. If the order is allowed to stand, it would cause irreparable injury to her.
  15. The Court had permitted the husband (petitioner in the divorce petition) to be represented by a Legal Practitioner. It is a fundamental principle of natural justice that where one of the parties to the lis is permitted to be represented by a Counsel, the other party should also be permitted to be represented by a Counsel. Having permitted the petitioner-husband in the divorce petition to be represented by a Counsel, the rejection of the application of the respondent-wife for engaging a Counsel is a improper exercise of jurisdiction opposed to principles of natural justice. Neither Section 13 of the Act nor any other provisions enables the Court to permit one party to be represented by a Counsel while refusing such permission to other party. The order on IA II is therefore liable to be set aside.
  16. Learned Counsel for the second respondent submitted that the proviso to Rule 1 of Order III of the CPC enabled the Court to direct the appearance of a party in person and therefore the respondent before the Family Court was bound to appear in person. But, the said provision is a special provision, under which the Court can, by a specific order, on the facts and circumstances of the case, require the appearance of a party. There is no such special order in this case. The Family Court has proceeded on the assumption that in all proceedings before it, the respondents should appear in person and then file an application to engage the Counsel. The Family Court has inferred from Section 9, which requires the Court to attempt settlement in the first instance, and Section 13 which denies representation by a Legal Practitioner unless permitted, that there is an obligation on the parties to appear in person in response to the notice and then continue to appear in person on every hearing date. As noticed above there is no basis for such inference or assumption. Section 9 makes it clear that the duty of Family Court to make efforts for settlement in the first instance is “where it is possible to do, consistent with the nature and circumstances of the case”. Where one of the parties is abroad or is disabled, it may not be possible to attempt settlement in the first instance. But, that does not mean that the party who is unable to appear, should be denied the right to prosecute or defend the proceedings. All that it means is that the effort to make settlement, gets postponed to a later date when parties are able to appear. In some cases, it may not be possible to attempt settlement at all due to the peculiar fact and circumstances. The statutory duty cast on the part of the Family Court to attempt settlement cannot be converted by the Court into a penalising weapon to deny representation or right to contest, merely on the ground that a party has by his or her absence, has come in the way of the attempt for settlement. If the reasons are bona fide, the Family Court should permit representation through Legal Practitioner or authorised agent. In this case, as the petitioner is abroad and has stated that she will not be able to come till July 1999, the Court ought to have allowed IA III.
  17. Therefore, this petition is allowed and the order dated 24-11-1998, passed on IAs II and III in MC No. 401 of 1998, on the file of the Principal Judge, Family Court, Bangalore, is set aside. The said interlocutory applications stand allowed. Any consequential order passed by the Family Court placing petitioner herein (wife) ex parte or deciding the matter ex parte cannot stand and shall be withdrawn. The Family Court shall fix a date for filing objections by the petitioner herein. Thereafter, Family Court shall proceed with the matter in accordance with law.

baseless allegation of adultery is an act of cruelty. Husband wins divorce. Madras HC

Wife deserts husband and goes away to brother’s house. She gives all pension and gratuity / superannuation benefits to siblings and not to husband. Attempts by husband to bring her back are not successful. Wife also makes serious allegations of adultery in written statements / counter. She claims husband having illicit relations with a servant maid. Approx 60 year old husband appears party in person and argues at HC

HC appreciates the facts and decrees that baseless and un substantiated allegation of adultery is an act of cruelty. Husband wins divorce

The HC orders and we quote

“….20. A conscious and deliberate statement levelled with pungency and that too placed on record, through the counter statement, cannot so lightly be ignored or brushed aside, to be of no consequence. The allegations levelled against the appellant, in the cases on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the wife had been persistently indulging in them, unrelated and unmindful of its impact….”

“…. In our considered view, the respondent’s baseless allegation of adultery is an act of cruelty….”

“…21. It has to be pointed out that it is the specific case of the respondent that both in her petition for Restitution of Conjugal Rights and in the counter statements filed in the OP by the appellant for divorce and in her evidence that only because the appellant had illicit intimacy with servant maid Devi, she had left the matrimonial home, but the said allegations have not been made out by the respondent by acceptable evidence. When such serious allegations have not been made out, then the irresistible conclusion that could be reached is that there was no reasonable cause for the respondent to leave the matrimonial home. Admittedly, the respondent had left the matrimonial home in August 2005 with an intention not to return back to the matrimonial home and only after the period of two years, the petition for divorce had been filed and therefore when the respondent had deserted the appellant without reasonable cause the appellant is entitled to get a decree for divorce….”


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.07.2011

C O R A M

THE HONOURABLE MR.JUSTICE K.MOHAN RAM
AND
THE HONOURABLE MR.JUSTICE M.DURAISWAMY

Civil Miscellaneous Appeal Nos.3602 and 3603 of 2010
and M.P.No.1 of 2010

I.Subramanian … Appellant in both CMAs
-Vs.-
C.Kuppammal … Respondent in both CMAs

Prayer in both the CMAs:- Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act 1984 against the orders passed by the I Additional Family Court, Chennai, in O.P.Nos.3636 of 2007 and 2737 of 2009, respectively.

For Appellant in both CMAs : Mr. I.Subramanian (Party-in-person) For Respondent in both CMAs : Mr. N.Manoharan, Amicus Curiae

C O M M O N J U D G M E N T

(JUDGMENT OF THE COURT WAS DELIVERED BY JUSTICE K.MOHAN RAM

  1. The appellant in the above appeals is the husband of the respondent. The marriage between the appellant and the respondent took place on 18.04.1975 as per Hindu Rites and Customs. On 29.03.1976 a son was born to them. Both of them are employed. On 10.07.1999 their son died.
  2. It is the case of the appellant that from August 2005 onwards the respondent started living with her brother in order to give all her retirement benefits to his family, as she was to retire from service on super-annuation on 31.12.2005. Since the respondent refused to come to the matrimonial home, the appellant filed HMOP No.529 of 2006 against the respondent on 02.03.2006 seeking Restitution of Conjugal Rights. As the respondent expressed her unwillingness to live with the appellant, the appellant withdrew the OP and the same was dismissed on 18.12.2007. On the same day, the appellant filed OP No.3836 of 2007 seeking a decree of divorce on the ground of cruelty and desertion. It is the further case of the appellant that the respondent never cooked meals regularly and the respondent would leave to her brothers’ and sisters’ house very often and the respondent would make untrue allegations about the character of the appellant to relatives and family friends as an excuse to leave home often and thus the respondent made the life of the appellant miserable and because of such conduct of the respondent, the health of the appellant was affected. She used to abuse the appellant in vulgar and filthy language in the presence of others. The respondent behaved in a rude and uncaring manner towards the son also. On 19.08.2005, the respondent with an intention to give all the retirement benefits to her brothers and sisters, without the consent of the appellant, deserted the appellant without any reasonable cause. The respondent retired from Government Service on 31.12.2005 and the respondent had given all her retirement benefits and the monthly pension to her brothers and sisters. All the efforts taken by the appellant with the help of the family members and friends to bring the respondent back to the matrimonial home proved futile. She lodged a police complaint against the appellant with G-5 All Women Police Station, Ayanavaram. In O.P.No.529 of 2006 filed by the appellant seeking Restitution of Conjugal Rights, the respondent filed a counter statement making untrue allegations regarding the character of the appellant and alleged that the appellant had brought one servant maid, by name, Devi, with whom he had illicit intimacy. It was further alleged in the counter statement by the respondent herein that the appellant sometimes used to live at the residence of the servant maid, Devi, and that was the reason why the respondent had to leave the matrimonial home. During counselling, the respondent firmly stated that she has no intention to reunite with the appellant and she openly challenged the appellant in the court premises that she would not allow the appellant to live peacefully. The reckless and untrue allegations made by the respondent and her uncaring attitude has caused inexplicable mental agony due to which the appellant’s health got deteriorated and he was mentally disturbed. The respondent had deserted the appellant without any reasonable cause and has caused great mental cruelty by her acts. On the aforesaid grounds, the appellant sought for divorce.
  3. In the counter statement filed by the respondent, the respondent herein denied the allegation that she did not care for the appellant and their son. She had stated that as a dutiful wife she did all the household work and never let the appellant and their son starve for food. The respondent would never leave the house or make wild and reckless allegations against the appellant. It is specifically stated in the counter statement that the appellant had illegal relationship with a servant maid, named Devi, who was residing very next to the ICF quarters and because of that lady only, the respondent left the matrimonial house and before leaving the house, she had given a police complaint at All Women Police Station (W-6), Ayanavaram. The police authorities advised the appellant to mend his ways, but he did not change his behaviour and because of that reason only, the respondent left the matrimonial home. The appellant filed OP No.529 of 2006 seeking Restitution of Conjugal Rights, but when the respondent expressed her willingness to live with the appellant, the appellant changed his attitude and withdrew the OP and immediately had filed the divorce petition. During the time when the respondent was living with the appellant, she had tolerated all the ill-treatment meted out to her with the hope of leading a happy marriage life with the appellant and now, at the age of 61, she does not need a divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. When the respondent was to be examined as a witness in the OP, she filed OP No.2737 of 2009 seeking Restitution of Conjugal Rights. In that OP also, similar allegations, which are made in the counter statement in OP No.3836 of 2007, have been repeated. Denying all the allegations contained in the OP, a counter statement was filed by the appellant. Both the OPs were tried together.
  5. Before the Court below, the appellant was examined as P.W.1 and Exs.P-1 to 4 have been marked on his side. On the side of the respondent, the respondent was examined examined as R.W.1 and Exs.R-1 to R-5 have been marked. On a consideration of the evidence on record, the Court below came to the conclusion that the appellant had not established cruelty and desertion on the part of the respondent and accordingly dismissed the petition for divorce and consequently allowed the petition filed by the respondent for Restitution of Conjugal Rights. Being aggrieved by the dismissal of OP No.3836 of 2007, CMA No.3602 of 2010 has been filed. Being aggrieved by the order passed in OP No.2737 of 2009 ordering Restitution of Conjugal Rights, the appellant has filed CMA No.3603 of 2010.
  6. Heard the appellant, who is appearing in-person. As the respondent had been served and her name shown in the cause list, she is neither appearing in-person, nor through counsel, Mr.N.Manoharan, learned counsel, was appointed as Amicus Curiae to assist this Court and he was heard.
  7. The appellant submitted that from August 2005, the respondent had deserted him without any reasonable cause and she left the matrimonial home and started living with her brother. The appellant submitted that in OP No.529 of 2006 filed by him seeking Restitution of Conjugal Rights, the respondent filed a counter statement containing the following allegations:-
    • “….. Actually the petitioner had illegal relationship with the servant named Devi who was residing very next to the ICF quarter’s and because that lady only the respondent left the matrimonial house and before leaving the house she had given a police complaint at All Women Police Station (W-6) at Ayanavaram, were enquiry was conducted and adduced the petitioner to mend his ways. But after that incident the petitioner had never stopped his misbehaviour and only for that reason the respondent left the matrimonial home.” 
    • It is further stated in the counter statement as follows:-
    • “… the respondent left the house only due to the misbehaviour of the petitioner with the servant. …. on 23.8.2005 the respondent gave the Police complaint after knowing the illegal relationship of the petitioner.”
  8. The appellant further submitted that it was suggested to the appellant / P.W.1 during the cross-examination that in his house the servant maid by name Devi was employed, but the said suggestion was denied by the appellant. The appellant further submitted that in OP No.2737 of 2009 filed by the respondent seeking Restitution of Conjugal Rights the respondent had stated as follows:-
    • “5. …. Moreover the respondent developed illegal relationship with one of the servant maid and this came to the knowledge of the petitioner. When the petitioner questioned about the same to the respondent, he started beating the petitioner due to which she was forced to give a Police complaint in G-5, All Women Police Station. After that the respondent developed vengeance against the petitioner and did not allow the petitioner to live in the matrimonial house.”
  9. The appellant submitted that the aforesaid very same allegations have been repeated in the proof affidavit filed by the respondent. During her cross-examination it was suggested to R.W.1 / the respondent herein that on the basis of the complaint lodged by her against the appellant before Ayanavaram Police Station the servant maid Devi was not enquired the suggestion has been admitted, but the suggestion put to her that there is no relationship between the appellant and the servant maid Devi had been denied; a further suggestion was put to R.W.1 that because of the complaint lodged with the police and the allegations made before the relatives, the reputation of the appellant was spoiled, but the said suggestion has been denied; she has further denied the suggestion that because of the false allegations made by her against her husband, he was put to great mental cruelty; it has been further suggested to R.W.1 that there is absolutely no proof for the allegation that the appellant had illicit intimacy with Devi, but the same has been denied. According to the appellant, the aforesaid unfounded and serious allegation maligning the character of the appellant made in the police complaint, made before the relatives and friends and made in the counter statements filed in OP No.529 of 2006 and in OP No.3836 of 2007 and in the counter statement filed in OP No.3836 of 2007 and in her evidence has caused great mental agony and strain and the same will amount to cruelty; having made such serious allegations against the appellant and without any justifiable cause, the respondent had deserted the appellant from 19.08.2005, but these aspects have not at all been considered by the Court below.
  10. Mr. N.Manoharan, learned Amicus Curiae, appointed by this Court submitted that the allegations regarding the character of the appellant had been made by the respondent in her counter statement and in her OP No.2737 of 2009 only by way of defence and the same will not amount to mental cruelty. He further submitted that there is no acceptable evidence to show that the respondent is living away from the appellant for over two years and therefore, even if the respondent was living away from the appellant, he is not entitled to seek divorce on the ground of desertion; only because of the ill-treatment and harassment meted out to the respondent and because of the unbearable behaviour of the appellant the respondent had to leave the matrimonial home. He further submitted that the appellant has not examined any other witness to corroborate his evidence and therefore the finding recorded by the Court below does not call for any interference; simply because the respondent had lodged the complaint against the appellant that will not amount to causing mental cruelty. He further submitted that admittedly the respondent is aged about 62 years and the appellant is 60 years of age and at this fag end of their life a decree for divorce may not be granted and the respondent may be allowed to spend the rest of her life as wife of the appellant; these aspects have been rightly taken into consideration by the Court below and has rightly rejected the petition for divorce filed by the appellant and rightly granted the decree for Restitution of Conjugal Rights in favour of the respondent.
  11. We have carefully considered the aforesaid submissions made by the appellant, who appeared as party-in-person, as well as the learned Amicus Curiae and perused the materials available on record.
  12. The Court below has observed that P.W.1 has not stated any specific incident of cruelty, but R.W.1 has deposed that she was driven out from matrimonial home by the petitioner on 23.08.2007; Ex.P-4 will show that the petitioner’s health deteriorated because of the respondent; there is no proof to show that the respondent is responsible for the death of their son; there is no proof to show that the respondent treated the petitioner cruelly; there is no proof that the respondent used filthy language against the petitioner; there is no proof for any harassment by the respondent; the allegations stated by the petitioner are general and vague and the allegations stated by the petitioner are only wear and tear of the family life. The Court below has further observed that there is no evidence that the petitioner has taken steps to live together; the withdrawal of the petition for Restitution of Conjugal Rights by the appellant is not bona fide and it will clearly show that his intention is to get divorce only; the general allegations made by the petitioner have not been proved. The Court below has further observed that the appellant had not produced any material evidence in support of his allegations of cruelty and the appellant has not proved cruelty and desertion; the appellant had relied upon the decision reported in 2009 (3) CTC 15 (D.Nagappan v. T.Virgin Rani) in support of his contention that making false allegations of living in adultery against the appellant will amount to cruelty, but the Court below, without considering the allegations made by the respondent against the appellant, has simply stated that in the present case, there is no proof for continuing accusation against the husband. The Court below has observed that the appellant has not taken any steps for reunion, whereas the respondent wants reunion. On the aforesaid observations, the Court below has dismissed the petition for divorce and ordered the petition for Restitution of Conjugal Rights.
  13. A perusal of the order of the Court below shows that it has not at all referred and considered the serious allegations made by the respondent against the appellant. As pointed out above, the respondent has in her counter statement filed in OP No.529 of 2006, in the counter statement filed in OP No.3836 of 2007 and in the petition in OP No.2737 of 2009 and in her proof affidavits filed in the above petitions, have repeatedly made an allegation that the appellant had illicit intimacy with the servant maid, by name, Devi, and he started living with her in her house. She had also alleged that only because of the illicit intimacy of the appellant with the servant maid Devi, she had to leave the matrimonial home. The Court below ought to have considered as to whether the aforesaid serious allegations levelled by the respondent against the appellant had been established by her by acceptable evidence or not. The Court below should have further considered the effect of such allegations made against the appellant. But unfortunately the Court below has not considered these aspects in the light of the decision reported in 2009 (3) CTC 15 (referred to supra) which was relied upon by the appellant. It has to be further pointed out that the Court below ought to have independently considered the OP for Restitution of Conjugal rights on the basis of the evidence on record. Simply because the Court had dismissed the OP for divorce, it ought not to have granted an order for Restitution of Conjugal Rights. The Court below ought to have independently considered as to whether the respondent / wife is entitled to get an order for Restitution of Conjugal Rights, but the Court below has granted the relief of Restitution of Conjugal Rights as a consequential relief on the dismissal of the petition for divorce. The said procedure adopted by the Court below is not in accordance with law.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  14. In these cases, a perusal of the evidence of P.W.1 / appellant shows that he had stated that the respondent had repeatedly made a false allegation that he was having illicit intimacy with Devi and the said allegation has caused mental agony to him and the same has affected his reputation; she has also lodged a complaint against him on the very same allegations before All Women Police Station, Ayanavaram. In the course of his cross-examination also, the very same allegations have been suggested to him, which he denied. R.W.1 / respondent in her evidence has repeated the same allegations and it has been suggested to R.W.1 in her cross-examination that the allegations made against the appellant by the respondent are not true. Except denying the suggestion, no other details have been given by the respondent. The respondent has not even furnished the details regarding Devi, such as her husband’s name, her house address, etc., It has not even been stated in the counter statements filed by her in the aforesaid OPs and in the petition filed by her for Restitution of Conjugal Rights or in her evidence that she had ever seen the appellant and the said servant maid Devi in a compromising position. Except making a wild allegation, no other details, whatsoever, have been furnished. Even the said wild allegation has not been proved by the respondent by acceptable evidence, but the Court below has not considered the aforesaid aspects and the effect of such allegation on the appellant.
  15. Now the question is, when the aforesaid allegations made against the appellant by the respondent have not been substantiated, that will amount to causing mental cruelty. To decide the aforesaid question, it will be useful to refer to the following decisions:-
    • (i) In the decision reported in AIR 2005 BOMBAY 180 (Manisha Sandeep Gade v. Sandeep Vinayak Gade) a Division Bench of the Bombay High Court, while considering the question as to whether the unsubstantiated and unproved allegation of adultery levelled against the husband by the wife would amount to mental cruelty, has held that it will amount to mental cruelty. It was a case where the husband has sought for divorce on the ground of cruelty and while defending the petition, the wife in her written statement, apart from defending her and refuting the allegations made against her, had made several allegations against her husband and one such allegation was that he had illicit relationship with one Leena, wife of Vivek and in fact he wanted to marry her. While considering the legal effect of such an allegation, the Division Bench has held as follows:-
      • “30. What we have to note is that when one party to the petition has sought divorce on some ground and the respondent to that petition does not merely defend it to get it defeated, but makes further serious allegations against the petitioner, it becomes a clear step towards the dissolution of the marriage. In the present matter, the petitioner has approached the Court seeking dissolution of his marriage. It is his case that there is a failure of the marriage and he seeks to point it out by invoking a ground available under the law. At that point of time, if the respondent makes a counter allegation in the written statement, that by itself shows a prima facie failure of the marriage. ….
      • 31. …. In a matrimonial matter, one cannot apply the standard of stricter evidence. Nothing prevented her from establishing her allegations. The respondent could not have established the negative by leading any further evidence that the allegations made by the wife were false. The appellant had made the allegations. The burden was on her. She had failed to prove those allegations. Once she fails to prove those allegations and if those allegations are not in consonance with matrimonial relationship, and the husband complains that they have caused him agony, the inference that they constitute cruelty has to follow.
      • 32. In the circumstances we are satisfied that the learned Judge was right in coming to the conclusion that the allegations made by the appellant wife were baseless and false and constituted a cruelty. He was, therefore, right in granting the decree of divorce on that ground. …”
    • (ii) In AIR 1989 PUNJAB AND HARYANA 310 (Kiran Mandal v. Mohini Mandal) a Division Bench of that Court, has held as follows:-
      • “14. … She made false allegations against her husband that he had illicit relations with his brother’s wife. These false allegations did have an injurious effect on the husband. 15. Cruelty within the meaning of S. 13 of the Hindu Marriage Act is not confined to physical violence but includes mental torture caused by one spouse to the other. The wife had made it insufferable for the husband to live with her. Any man with reasonable self respect and power of endurance will find it difficult to live with a taunting wife, when such taunts are in fact insult and indignities. Human nature being what it is, a reasonable man’s reaction to the conduct of the offending spouse is the test and unending accusations and imputations can cause more pain and misery than physical beating. ….”
    • (iii) In Smt. Chanderkala Trivedi v. Dr. S.P.Trivedi, 1993 (3) Scale 541, the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations, His Lordship, R.M.Sahai, J., speaking for Division Bench, observed:
      • “Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.”
  16. In the light of the law laid down in the aforesaid decisions, if the facts of the present cases are considered, it could be seen that when serious allegations of adultery is made by the wife against the husband and the same stands unsubstantiated that will definitely amount to mental cruelty as far as the husband is concerned. The unfounded allegations made by the wife against her husband by itself shows the prima facie failure of the marriage.
  17. In the decision reported in 2002 (5) Law Weekly 250 (P.Natarajan v. Thamizhmani), Mr. Justice K.P.Sivasubramanian, has observed as follows:-
    • “24. ….. Husband and wife constitute a family and the house is their fort. What happens within four walls of a house has its severe impact on the mind of the respective spouse. One spouse accusing another spouse of adultery, irrespective of sex, is the worst form of mental cruelty. The relationship of a husband and wife is built upon on mutual trust, devotion and confidence with each other. An accusation of adultery either by the husband or wife is bound to have serious adverse influence on such mutual trust, confidence and mental peace. If the said element of confidence and trust is lost, there can be absolutely no peace of mind and no rapport between the two. Therefore, there is no justification in being diverted by the reasons behind why adultery was not made an offence as against woman under the Indian Penal Code which was drafted more than a century ago, which appears to have weighed with the learned Judge. Social values and ideas have undergone many changes. Further we are only concerned with the impact on personal relationship, mutual respect and confidence between spouses.”
  18. In Vijayakumar Ramachandra Bhate v. Neela V.Bhate, 2003 (2) CTC 375 (SC) : 2003 (4) LW 609, the Supreme Court held that aspersions regarding infidelity is the worst form of insult and cruelty and that a wife is likely to feel deeply hurt and reasonably apprehend that it will be dangerous to live with a husband who was taunting her like that.  http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  19. In the decision reported in 2009 (3) CTC 15 (referred to supra), the Division Bench has held as follows:-
    • “20. In the present case, the respondent seeks divorce on two grounds, one of cruelty and the other regarding desertion. The allegation of illicit intimacy is made in the counter to the petition for divorce. In her cross-examination, which has been extracted above, she had admitted that she had made such allegations and right even from the time the first child was born, she had been making these allegations and that she has the right to continue to make such allegations. There is no iota of proof that the wife of Viswanathan and the appellant had had any intimate relationship. No instances where she had seen them together or apprehended them in compromising position is spelt out either in the pleadings or in the evidence. Therefore, apart from her allegation of illicit intimacy, there is no evidence in this behalf. What is more, she has admitted in her cross-examination that she had gone and told Viswanathan that there is illicit intimacy between his wife and her husband, for which he has stated that there is nothing of that sort and that she should go with her husband. She had also made these allegations to the Chief Minister’s Cell, which had resulted in the Deputy Secretary issuing a notice to the Syndicate Bank, the employer of Viswanathan. When she is unable to prove adultery, the false allegation of adultery becomes an act of cruelty.”
    • …. In A.Jayachandra v. Aneel Kaur, 2005 (1) CTC 215 (SC) : 2005(2) SCC 22, the Supreme Court considered the various ingredients that constitute cruelty :
    • “10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as fulfil and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical... In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
    • 11. The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course of conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. … In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobha Rani v. Madhukar Reddi, 1988 (1) SCC 105. …. 
    • 14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husband and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, 1975 (2) SCC 326).”
    • In that case, the respondent / wife had used abusive language and made allegations of adultery of her husband with the nursing staff.”
  20. A conscious and deliberate statement levelled with pungency and that too placed on record, through the counter statement, cannot so lightly be ignored or brushed aside, to be of no consequence. The allegations levelled against the appellant, in the cases on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the wife had been persistently indulging in them, unrelated and unmindful of its impact. In his petition for divorce, the appellant had stated that the allegations of adultery made against him by the respondent amount to cruelty and the complaint lodged by the respondent against the appellant before the Police amount to cruelty and the same has been repeated in his oral evidence, but, as pointed out above, the Court below utterly failed to consider the same and it has not focussed its attention on the real facts in issue. In our considered view, the respondent’s baseless allegation of adultery is an act of cruelty.
  21. It has to be pointed out that it is the specific case of the respondent that both in her petition for Restitution of Conjugal Rights and in the counter statements filed in the OP by the appellant for divorce and in her evidence that only because the appellant had illicit intimacy with servant maid Devi, she had left the matrimonial home, but the said allegations have not been made out by the respondent by acceptable evidence. When such serious allegations have not been made out, then the irresistible conclusion that could be reached is that there was no reasonable cause for the respondent to leave the matrimonial home. Admittedly, the respondent had left the matrimonial home in August 2005 with an intention not to return back to the matrimonial home and only after the period of two years, the petition for divorce had been filed and therefore when the respondent had deserted the appellant without reasonable cause the appellant is entitled to get a decree for divorce.
  22. For the aforesaid reasons, the orders of the Court below passed in O.P.Nos.3636 of 2007 and 2737 of 2009, are set-aside and the Civil Miscellaneous Appeals are allowed. However there will be no order as to costs. Consequently, the connected MP is closed.

srk

To
I Additional Family Court, Chennai

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