IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8954 OF 2009
Neelam Dadasaheb Shewale .. Petitioner
Vs.
Dadasaheb Bandu Shewale .. Respondent
Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner.
Mr. R. T. Lalwani for the Respondent.
CORAM : MRS. R. S. DALVI, J.
DATE : 17TH FEBRUARY, 2010
JUDGMENT:
1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.
2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.
3. Two orders are passed upon three applications of the parties.
4. One application was filed by the exhusband (husband) seeking to restrain his exwife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.
5. The Advocate on behalf of the wife argued that the separate
petition only should have been filed. Both these reliefs,
permanent and interim, are between the same parties
pursuant to the same marital relationship which has since
ceased. Under Section 7 of the Family Courts Act the Family
Court has jurisdiction to decide the petitionapplication as
well as a suit or proceeding (permanent or interim), for
injunction arising out of the marital relationship. The
husband can, therefore, file a separate application/petition
for injunction or take out an application in the wife’s
application/petition already filed. In fact, the husband can 3
file a counterclaim in any petition with regard to any relief
arising out of the marital obligation. An application which
may be in the nature of counterclaim, can therefore be
allowed an interim application.
6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.
7. The Advocate on behalf of the wife fairly concedes that since
the marriage has been dissolved by a decree for divorce
which has become final, the wife cannot use the name of the
husband. That is the only substance to be considered by the
Family Court. Under the impugned order dated 23rd
September, 2009 the Family Court has considered that
aspect as an application arising out of a marital relationship.
It is correctly considered. The order needs no interference.
8. In fact, the Advocate on behalf of wife mentioned that the
bank account of the wife stands in both her names. That 4
statement itself shows that the wife uses the name of the
husband even after their marital relationship has been
dissolved by an order of the Court. The description of the
bank account is therefore improper. It is, therefore, clarified
that the wife cannot use the husband’s name anywhere
including in her bank account. The injunction granted by
the Family Court in the application of the husband shall be
effectuated for all purposes.
9. The writ petition also challenges another order of the same
date between the same parties but in two different
applications. One was the application filed by the wife for
her to be represented by her constituted attorney on the
ground that she is ill, does not know English, she has been
mentally tortured at the hands of the husband and she
would not be able to stand the court proceeding. The other
application is filed by her constituted attorney asking for
permission to represent the wife as she cannot financially
afford a lawyer, lawyers are otherwise not permitted and that
she would be entitled to assistance of the person she has faith in.
10.The legal right of a party in Family Court to be represented
by her constituted attorney in place of her Advocate who is
registered legal practitioner is required to be seen. Under
Section 13 of the Family Courts Act no party is entitled as of
right to be represented by a legal practitioner. However, the
Court may appoint legal expert as amicus curie to assist
her/him. A party has full right to appear before the Family
Court. None can object to such appearance. The wife does
not desire to have an Advocate. She has refused legal aid
offered to her. She contends that she has faith only her
constituted attorney. The extent of the right of a constituted
attorney is laid down in Order III Rule 1 of the Civil
Procedure Code as follows :
ORDER III :
1. Appearances, etc., maybe in person, by recognized agent
or by pleader. Any appearance, application or act in or to any
Court, required or authorized by law to be made or done by a
party in such Court, 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 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. (emphasis supplied)
11.What is appearance, application or act has been considered
by Chief Justice Chagla, as he then was, in the case of Aswin
Shambhuprasad Patel and others Vs. National Rayon
Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of
the aforesaid order was considered taking into account the Bar
Councils Act and the Bombay Pleaders Act. It has been held
that the aforesaid rule would not apply where a law for the
time being in force otherwise expressly provided. It is held
that pleading is not included in the expression “appearance,
application or act in or to any Court”. This is so because, the
right of audience in Court, the right to address the Court, the
right to examine and crossexamine the witnesses are dealt
with in other parts of the Civil Procedure Code and not under
Order 3. It was further held the right of audience in Court is a
part of pleading in Court and not “acting” as provided under
Order 3. It is further observed that a party in person would
have a right of audience in Court and not his recognized agent
who would be “appearing, applying or acting” on his behalf. 7
12.Further the right of pleaders to plead in a Court of law
under authority of the client and to have a right of audience in
Court as a member of Bar is not dealt with under Order 3. The
members of the Bar have a right in clause 10 of the Letters
Patent as they are qualified to plead in Court as required by
specific legislation and rules. Under that clause no person
except Advocates, Vakils or Attorneys would be allowed to act
or plead for and on behalf of any suitor except the suitor
himself. Considering Section 8 of the Bar Councils Act under
which no person was entitled to practice as an Advocate
unless his name was entered in the roll of Advocates, it was
observed that the expression “practice” is wider than the
expression “plead”. Similarly Section 9 of the Bombay Pleaders
Act, which was similar to the above section, was considered.
The proviso to that section allowed a party to appear, plead or
act on his own behalf but a recognized agent of the party was
allowed to only appear or act (and not plead). It was therefore
observed that proviso made a distinction between appearing,
pleading or acting and appearing or acting. Whereas the party
could do all three of the above her/his constituted attorney 8
could do only the above two. Consequently it was held that in
the District Courts a recognized agent had no right to plead by
relying on provision 9 of the Bombay Pleaders Act. It was
observed that the right of audience is a natural and necessary
concomitant of the right to plead and as the recognized agent
had no right to plead, it follows that he has no right of
audience in Court.
13.The law that is laid down in the aforesaid judgment holds
true and good till now and even within Section 13 of the
Family Courts Act. The object of Section 13 of the Family
Courts Act is to allow a party to represent her/his case and
consequently right of the lawyer to plead, appear and have
audience in Court is limited but the right given to the party to
appear is not extended to that parties’ constituted attorney.
Hence, the general law of procedure under Order 3 Rule 1 as
also the special laws contained in the Bar Councils Act and the
Bombay Pleaders Act would apply even in a Family Court. The
object of that provision is that only qualified persons are
entitled to appear in Courts and represent the case of their
parties. The qualification is of the knowledge of the law and 9
the enrollment under the Act. If constituted attorneys of all
the parties are allowed to appear, the Court would be overrun
by any number of unqualified, unenrolled persons. Since Civil
Procedure Code would generally apply to a Family Court
under Section 10 of the Act, the restraint upon appearance
under Order 3 of the Code must hold good.
14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138
it has been held that the recognized agent of the party in a
Family Court proceedings cannot be allowed to prosecute it.
Considering the various provisions of the Family Courts Act
which follow the procedure different from the Civil Courts, it is
observed that the parties themselves can be heard. Some
times legal assistance can be provided. However, personal
appearance of the parties is inevitable to comply with the
mandatory provisions of the Family Courts Act. Though the
authorized agent, who is not a legal practitioner can file a
petition, he can only prosecute or defend it or represent the
party only until the Family Court passes an order directing the
party to appear in person depending upon the facts and stage
of the case. In that case the constituted attorney sought 10
permission to defend the case on the ground that she was not
able to come to India to contest the case. Such a permission, it
was held, could not be granted.
15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik
(AIR 2005 GUJARAT 244) upon considering the law under
normal circumstances as aforesaid it was held since that case
the petitioner’s life was in danger his father was allowed to
represent his son in the interest of justice though it was held
that in normal circumstances any citizen or party is not
allowed to be represented by his power of attorney unless he is
an Advocate of the Court.
16.Consequently both the orders of the Family Court, Bandra,
Mumbai dated 23.09.2009 are correct and cannot be interfered
with. Writ petition is dismissed.
(R. S. DALVI, J.)
