Karnataka High Court

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

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.