IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2010
CORAM : THE HONOURABLE THIRU JUSTICE S. MANIKUMAR
C.R.P.(NPD)No.4361 of 2010
Terance Alex … Petitioner
Mary Sowmya Rose … Respondent
This Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the order of the IInd Additional Judge, Family Court, Chennai and to entertain the petition by the petitioner in S.R.No.11590 of 2010 in I.D.O.P.No.3447 of 2009.
For Petitioner : Mr.P.Prakash Paul
O R D E R
The issue involved in this Civil Revision Petition is whether a power of attorney can represent a party to matrimonial proceedings in family Court.
Short facts leading to the Civil Revision Petition are as follows: After marriage, the petitioner went to United Kingdom for his employment, leaving the respondent-wife, at his parental house at Utchakkada. Subsequently, the respondent also joined him on 01.03.2009 and that they were leading a happy life. On the request of respondent’s father to meet her family members, she left United Kingdom on 14.05.2009 and reached Chennai. Due to the ill-advise of her father, complaints were lodged against the petitioner under various non-bailable offences, with a motive to prevent him to come down to Chennai and meet her. Without any reasonable cause, she had withdrawn from her conjugal duties and therefore, the petitioner was constrained to file a petition before the Family Court at Trivandrum, Kerala for the relief of restitution of conjugal rights, appointing Mr.Manu, as his lawful power of attorney agent. The said case is pending.
In the mean while, the respondent filed a petition for Divorce in I.D.O.P.No.3447 of 2009. Even without serving any notice to the petitioner, the respondent by way of Civil Revision Petition, has got an order, as ‘notice sufficient’ and on that basis, an ex parte order was passed against him on 01.11.2010. It is the case of the petitioner that when he has filed a Petition for restitution of conjugal rights in Case No.981 of 2010 before the Family court at Trivandram, through his Power Agent, Mr.Manu, to appear and represent on his behalf in the matrimonial case filed against him by the respondent-wife in I.D.O.P.No.3447 of 2009 before the 2nd Additional Family Court, Chennai and the said agent is also empowered to file petitions or applications before the Family Courts, Metropolitan Magistrate Courts and other Civil Courts, on his behalf or in any proceedings, Civil or Criminal or Matrimonial, arising out of the said case, the ex parte order was invalid.
However, explaining the inability to appear in person, as he is presently working in a foreign country, the petitioner has filed an application to set aside the abovesaid ex parte order, dated 01.11.2010 in I.D.O.P.No.3447 of 2009 under Order 9 Rule 13 CPC., through his power agent. In addition to the above, he has also taken out an application under Order 3 Rule 1 CPC., to grant permission to Mr.Manu, to represent in the above IDOP., on his behalf. The learned 2nd Additional Family Court Judge, by an order, dated 23.11.2010, has returned the application with an endorsement as follows:
“The application is filed by the (party-in-person) power agent. The case was set exparte on 01.11.2010. Power of Attorney not entertained to file this petition. Petition should be present. How this petition is maintainable. To be stated.”
Being aggrieved by the endorsement made by the Learned Second Additional Family Court Judge, Chennai and refusal to entertain the application filed to set aside the ex parte order, the present revision petition has been filed by the authorised power agent.
Taking this Court through the general power of attorney, executed by Mr.Terance Alex, revision petitioner, authorising Mr.Manu, his close relative and family friend to appear and represent on behalf of the revision petitioner in the matrimonial and other cases and to file applications or petitions before the Family Court and other Courts, on his behalf, arising out of the abovesaid proceedings, Mr.P.Prakash Paul, learned counsel for the petitioner submitted that since the revision petitioner is now residing in Dubai, UAE, he could not appear in person to file an application to set aside the order and also to contest the proceedings in I.D.O.P.No.3447 of 2009.
Learned counsel for the petitioner also brought to the notice of this Court that the said Mr.R.Manu, has already represented the revision petitioner, in a proceeding instituted for restitution of conjugal rights before the Family Court at Trivandum, Kerala and therefore, there is no impediment for the authorised agent to file an application to set aside the ex parte order passed by the Second Additional Family Court Judge, Chennai.
Placing reliance on the orders of this Court in S.M.Syed Amina Beevi v. Thaika Sahib Alim reported in I (1994) DMC 557 and Pavithra v. Rahul Raj reported in 2003 (2) LW 431, learned counsel for the petitioner submitted that the application filed under Order 3 Rule 1 CPC., filed by the authorised agent to represent the revision petitioner, who is now residing in Dubai, UAE, ought to have been ordered. He therefore submitted that a suitable direction may be issued to the learned 2nd Additional Family Court Judge, Chennai, to grant permission to the authorised agent, Mr.R.Manu, to represent the revision petitioner in all proceedings, arising out of I.D.O.P.No.3447 of 2009.
Heard the learned counsel for the petitioner and perused the applications filed under Order 3 Rule 1 CPC., and Order 9 Rule 13 CPC. The revision petitioner, who is now residing at V-Castle Electro Mechanical Contractor, LLC, P.No.5983, Ajman-UAE, has nominated and appointed Mr.R.Manu, his close relative and Family friend to be the lawful power of attorney agent to act on his behalf and perform all or any of the acts, including,
“(i) To appear and represent me on my behalf for the matrimonial case, Criminal cases and other Civil cases filed against me by my wife Mrs.Sowmya Rose, daughter of Mr.John Rose, especially in O.P.No.3447 of 2009 Hon’ble 2nd Additional Family Court, Chennai.
(ii) To sign any forms prescribed in connection with the said matrimonial and related disputes.
(iii) To file petitions or applications before the Family Courts, Metropolitan Magistrate Courts and other Civil Courts in my name and on my behalf or any proceedings Civil or Criminal or Matrimonial arising out of the said case and to prosecute the same and for the said purpose to sign and verify all vakalth and petition, appeals, pleadings and other documents that may be necessary thereof.”
The general power of attorney seemed to have been executed before the Consulate General of India, Dubai and an attested copy of the same has been filed before the Family Court. Both the supporting affidavit and petitions under Order 9 Rule13 CPC and Order 3 Rule 1 CPC., have been executed before the Consulate General of India, Dubai. The concerned affidavit of Power of Attorney holder, Mr.R.Manu, has been executed on 24.11.2010 at Chennai. In his affidavit, the authorised agent has stated that he is a close friend of the revision petitioner and that he has been contesting the petitioner’s case for restitution of conjugal rights before the Family Court at Trivandrum and as such, he knows the facts and circumstances of the case. In the said affidavit, he has further prayed that he may be permitted to present the case on behalf of the revision petitioner to appear on every hearing.
It is relevant to extract few provisions of the Family Courts Act.
“Sec 10. Procedure generally.-
(1) Subject to the other provisions of this Act and rules, the provisions of the Code of Civil Procedure, 1908(5 of 1908), and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974), before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), or the rules made thereunder, shall apply to the proceedings under Chapter IX of the Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.
Sec 13. Right to legal representation.–
Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right to be represented by a legal practitioner:-
Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right to be represented by a legal practitioner:
Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.
Sec 20. Act to have overriding effect.-
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
In S.M.Syed Amina Beevi v. Thaika Sahib Alim reported in I (1994) DMC 557, wife sent a petition for divorce by registered post to the Family Court. The Sherishtadar of the Family Court, Chennai, returned the papers, with the following endorsement, “Returned, Received by post. To be presented in person by the concerned party”. Being aggrieved by the same, wife filed an unnumbered revision petition before this Court, contending inter alia that none of the provisions of the Act or the rules made thereunder specifically provide the mode of presentation and in view of the provisions contained in the Code of Civil Procedure, 1908, the papers can be presented by a recognised agent or party in Court and that at any rate, in view of the fact that the petitioner therein belongs to a category of ‘exempted persons’ in respect of personal appearance before the Court, the right of the petitioner to present the papers either through a recognised agent or by registered post should be considered and consequently, permission to that extent ought to have been granted, if necessary and that therefore, the manner in which the papers of the petitioner therein were returned cannot be said to be either appropriate or valid in law. After considering the statutory provisions stated supra, this Court, at Paragraph 12, held as follows:
“I have already expressed the view that the prohibition contained in Section 13 of the Family Courts Act is only vis-a-vis a legal practitioner and not in respect of a recognised agent permissible under the provisions of Order 3 Rule 1 of the Code of Civil Procedure, which is rendered applicable by the provisions contained in Section 10 of the Family Court Act to the extent to which there is no provision otherwise contained to the contra. The petitioner in my view therefore is entitled to have the papers filed or presented before the Family Court through a recognised agent in terms of Order 3, Rule 1, and such a recognised agent at any rate cannot be a legal practitioner. This in my view, has got to be limited or confined to the stage of presentation or tiling of the matters only. The petitioner cannot take advantage of the other provisions contained in Order 3, Rule 1 or Order 4, Rule 1 or Section 132 of the Code of Civil Procedure, once and for all, to avoid personal appearance before the Family Court and claim to have the adjudication through such a recognised agent, on account of the peculiar provisions of law governing the adjudication in the Family Courts. The provision of Section 9 of the Family Courts Act looms large and acquires significance for consideration in this regard. Section 9 of the Act specifically provides that in every suit or proceedings, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceedings and the endeavour of efforts shall be in accordance with the Rules. Personal appearance or presence of the party concerned becomes therefore inevitable and necessary, at any rate from the stage of hearing after the appearance of the other side to the proceedings, and the efforts contemplated to be made by the Family Court under the statute cannot be effectively carried out through a recognised or authorised agent of the party and having regard to the sensitive nature, personal feelings and behavioural attitudes to be assessed by the Court in carrying out the mandate contained in Section 9 of the Family Courts Act. Personal appearance, though, not initially required, becomes absolutely necessary after the appearance of the respondent to the proceedings- I am of the view that the petitioner shall be at liberty to present the application through a recognised or an authorised agent other than the legal practitioner as contemplated under Order 3, Rule 1 of the Code of Civil Procedure, and the Family Court at the same time is entitled to insist upon the personal appearance of the petitioner or any party concerned for the matter for all subsequent or further stages of the hearing, after the appearance of the respondent or from the stage of hearing even when the respondent, fails to appear or remains ex parte to the proceedings. Subject to the above declaration of the. position of law regarding the procedure to be followed and the duties and obligations of the petitioner to make personal appearance in Court before the family Court, as and when so stipulated or directed or indicated by that Court the petitioner shall have the right to present the papers through a recognised agent other than a legal practitioner, as contemplated under Order 3, Rule 1 of the Code of Civil Procedure.”
Accordingly, this Court directed the Registry to return the original papers, pertaining to the original petition enclosed with the revision petition filed in the Court to the Learned Counsel for the petitioner therein, so as to enable the petitioner to present the same before the Family Court for further course of action.
In Pavithra v. Rahul Raj reported in 2003 (2) LW 431, petitioner’s father filed an application under Order III Rule 2 and Section 151 of CPC seeking permission of the Court to defend HMOP.No193 of 2002 on behalf of the petitioner therein. The said application was returned by the court below and the petitioner therein was set ex-parte on 20-05-2002 itself. The petitioner’s father re-presented the above petition on 21-05-2002 with an endorsement that the petitioner therein had executed a power of attorney in his favour and by virtue of the same, the application has been filed. Again, the said application was returned by the family court relying upon the unreported Judgment of this Court in a Transfer CMP that the presence of the parties on each date of hearing is mandatory. Aggrieved by the same, a revision petition has been filed. The point for consideration in the reported case was whether the petitioner therein,who was abroad and not able to come to India, can authorise an agent to defend the case on her behalf and whether the personal appearance of the parties was required, at each and every stage. After considering the statutory provisions and the decisions made in S.Venkataraman v. L.Vijayasaratha reported in 1996 (1) LW 222, Mrs.Komal S. Padukone v. Principal Judge, Family Court Bangalore City and another reported in AIR 1999 Kant. 427 and S.M.Syed Amina Beevi v. Thaika Sahib Alim reported in I (1994) DMC 557, this Court, at Paragraphs 13 and 14, held as follows:
“13. In Section 10(3) it is contemplated that “Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.”
Similar provisions are seen in Order 32 A Rule 3 and 4 of CPC for conciliation. The said provisions of Order 32 A were incorporated by C.P.C. Amendment Act 1976 with effect from 01-02-1997, however operate retrospectively to all pending cases. It is evident that Parliament has been consistent in speedy disposal and settlement of Family Cases. It is the onerous duty of the family courts to make endeavour for conciliation and it is not right to say that the opposite party did not appear in person and no scope for reconciliation. Even in such a case, the court is required to again issue notice to the party to appear.
14. Order 3 Rule 1 of CPC empowers a party in a suit or proceedings to be represented by a pleader, but so far as the proceedings in the Family Courts are concerned, the right of representation by the pleader does not exist. The operation of Order 3 Rule 1 is subject to any law for the time being in force. In addition to the said exclusion in the code, Section 13 of Family Courts Act prohibits the operation of Order 3 Rule 1 to the extent that the case being represented by the legal practitioner. The recognised agent appointed under Order 3 Rule 2 stands on a different footing from pleader. However, recognised agent cannot be a legal practitioner. The embargo on the appearance of legal practitioners should not be extended to recognised agent. There is no prohibition in the Act or Rules a petition being filed by an authorised agent who is not legal practitioner. The recognised agent can prosecute or defend or represent until Family Court passes specific order directing the party to appear in person, depending upon the facts and stage of the case. Personal appearance of the parties is inevitable to comply with mandatory provisions of the Act. In this case, the authorised agent has filed a petition seeking permission to defend the case on the ground that she is not able to come to India and contest the case. Such a permission cannot be granted. Hence, the said petition is liable to be rejected and rejected accordingly.”
In Nathiya Faru v. Rojan Roux reported in 2009 (6) MLJ 945, the marriage between the parties were solemnized in India on 24.04.2000 and thereafter, they moved to France. Three children were born in France. Due to difference of opinion, husband filed M.O.P.No.6 of 2008 on the file of the Family Court, Pondicherry, for dissolution of marriage. Since the children were in France, mother has necessarily to be in France. She could not come over to Pondicherry for every hearing of the case. Therefore, her mother preferred a petition for permission to represent on behalf of her daughter, Roux Pauline, as Power Agent to defend the case. Opposition was made by the husband, stating that there was no necessity to grant permission to the petitioner to defend her daughter, since she can go over to Pondicherry to defend the case. After hearing both parties, the Family Court, Pondicherry turned down the request of the petitioner, by observing that in Family Courts, appearance of the parties are inevitable, in view of the duty cast upon the Family Court to make every endeavour to settle the matter by counselling.
Being aggrieved by the same, wife filed revision petition before this Court, contending inter alia that the provisions of the Family Courts Act do not prohibit appearance of any person, on behalf of a party before the Family Court, not having any legal profession and in such circumstances, the Family Court ought to have permitted her mother to represent the case. On the facts of the case, it was contended that it would be extremely difficult for the wife to attend every hearing at Pondicherry. Reliance was also placed on a decision of this Court in Pavithra v. Rahul Raj reported in 2003 (2) LW 431, Dr.K.Malathi v. Dr.S.Rajasekaran reported in 2003 (2) MLJ 33 and Sakunthala v. Anandarajan reported in 2008 (1) MLJ 182. After considering the law laid down in the above referred judgment, a learned Single Judge, at Paragraphs 11 to 13, held as follows: “11. As far as the permission to be granted to the Power Agent is concerned, the general principles holding the field are discussed in Sakunthala’s Case (supra). Insofar as the proceedings in matrimonial cases which are being conducted under the special statutes, Family Courts Act are concerned, the peculiar circumstance available is that no legal practitioner is allowed to appear for parties. In such circumstances, if any of the party to the proceedings is prevented from appearing before the Court and which cause is satisfactory to the Court, there is no legal impediment to grant permission in this regard. The decisions of this Court have thrown much light on the subject, which go to show that the parties are at liberty to present through the authorised agents on various hearings and as and when the court is of the opinion that the presence of the party is required for the purpose of counselling or for possible or amicable settlement, then he may be directed to appear before the Court to proceed further. 12. As far as appearing as witness on behalf of the principal is concerned, the principles laid down in Sakunthala’s case (Supra) have to be followed. At the time of the examination of the parties, it is for the Court to follow the procedures and guidelines as formulated in the above said decision and other decisions on this point. 13. As for the hearings of the case earlier to the commencement of the trial, granting permission to the petitioner to represent her daughter, would meet the ends of justice. Taking note of the peculiar circumstances available here, this Court is of the considered view that the request of the petitioner has to be heeded to.”
It is worthwhile to extract the decisions in Dr.K.Malathi v. Dr.S.Rajasekaran reported in 2003 (2) MLJ 33 and Sakunthala v. Anandarajan reported in 2008 (1) MLJ 182, reproduced in Nathiya Faru’s case.
“9. Learned Counsel for the petitioner also garnered support from a decision of this Court in 2003 (2) CTC 166 [Dr. K. Malathi v. Dr. S. Rajasekaran], in which it has been observed that since the appearance of legal practitioner before the Family Court is barred by statute, there is no stumbling block for the Court to permit any person to represent a party in a matrimonial matter. The following is the relevant portion of the judgment, “10. It is clear that in the light of Section 13 of Family Courts Act, Order 3, Rule 1 of Section 132, CPC, no party to the Family Court seek dispensation once for all, to avoid personal appearance and claim to have the adjudication through a recognised agent on account of the peculiar provisions of law governing the adjudication in the Family Court. Undoubtedly, from the stage of hearing, after the appearance of the either side to the proceedings, considering the peculiar and sensitive nature of the lis, personal feeling, behavioral attitudes to be assessed by the Court, it is, but proper that appearance of the parties become necessary. To put it clear that though the parties are at liberty to present through an authorised agent other than the legal practitioner as contemplated under Order 3, Rule 1 CPC, at the stage of examination/hearing, it is for them to appear in person.”
10. Learned Counsel for the respondent cited another authority of this Court in 2008 (1) MLJ 354 [Sakunthala v. Anandarajan and Anr.] in which a settled principle, that is to say, a Power of Attorney holder can appear as witness only in the capacity as a witness in his personal capacity and wherever knowledge he has about the case, he can state orally and he cannot appear as witness in the capacity of that party. While adverting to this position, the learned Counsel for the respondent also says that since the affairs which are more specific and intimate between the spouses could not be expected to be spoken by the mother of the wife and her evidence, even if it comes to record, may not be useful. It is the crux of his contention that the mother at any cost, could not represent her daughter. This court in the above said decision has held as under: “9. The Supreme Court has considered the judgment of the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan [AIR 1998 Raj. 185], wherein it was held that the word “act” under Order 3 Rule 2, C.P.C. Does not include the act of power of attorney holder to appear as witnesses on behalf of the party. It was further held that the power of attorney holder can appear only as a witness on behalf of the party in the capacity of that party. It was further observed that even if the plaintiff is not able to appear before the Court, the plaintiff is not left in the lurch. There is a provision for appointment of Commissioner for recording evidence under C.P.C.”
Thus, it is now well settled legal position that there is no legal impediment under the Family Courts Act, for a Power of Attorney to appear on behalf of the Principal and the only legal embargo is that the recognised agent should not be a legal practitioner. Any person, not being a legal practitioner, can be nominated as an agent under Order 3 Rule 2 CPC, to prosecute or defend the parties and until the Family Court passess any specific order, directing appearance of the party, depending upon the facts and circumstances of the case.
In the light of the decisions stated above, this Court wanted to ascertain from the learned counsel appearing for the revision petitioner, as to whether Mr.R.Manu, nominated as the power agent of the petitioner to represent him, in the Family Court, is a legal practitioner or not. On instructions, Mr.Prakash Paul, learned counsel for the revision petitioner submitted that the nominated agent is a legal practitioner. In view of the settled legal position, he cannot be permitted to represent the revision petitioner.
Hence, on facts, the endorsement of the Family Court, cannot be found fault with. However, in future, the Family Court before returning any application filed under Order 3 Rule 1 CPC., is directed to ascertain and get a declaration from the recognised agent that he is not a legal practitioner, preferably, in the supporting affidavit, filed along with the petition under Order 3 Rule 1 CPC., so as to avoid any delay. In view of the Registry is directed to return the original papers, enclosed with the revision petition filed in this Court to the learned counsel for the petitioner, after getting the attesting copies of the same, for further course of action.
In the result, the Civil Revision Petition is dismissed. No costs.
S. MANIKUMAR, J.
The IInd Additional Judge, Family Court, Chennai.