2. Learned counsel for the petitioner initially contended that the second respondent in the above revision, viz., the Sherishtadar of Family Court, Madras is not the competent authority to pass orders even for returning the papers and that if at all it is for the presiding officer of the Family Court to pass such orders in this regard. At this stage, this Court pointed out to the learned counsel for the petitioner that if the objection is only that the Sheristadar has passed the orders, the papers filed into this Court can be taken back and re-presented before the Family Court, so that a direction can be issued to the presiding officer himself to deal with the matter and pass appropriate orders. Learned counsel for the petitioner would at this stage submit that even the re-presentation, the petitioner is not prepared to do it in person before the Family Court, that he would like to have the same either re-presented through counsel or sent by registered post and that therefore, it becomes necessary for this Court to decide as a matter of principle, the vital question raised in the matter as to whether an applicant before a Family Court can send his application by registered post and if so sent, the Family Court is obliged to entertain the same and pass orders on such application.

3. A few facts confined to the issue in question alone may be referred to without going into the details of the merits of the claim: The petitioner claims to be the wife of Thaika Sahib and the petitioner as well as the respondents are Muslims governed by the Muslim Personal Law and the Dissolution of Muslim Marriage Act, 1939. The petitioner also claims to have married the respondent in the year 1954 at Keelakarai in Ramanathapuram District, according to Muslim Law. Both the petitioner and the respondent are stated to be residing at Madras. The petitioner would allege illtreatment and claim to have borne seven children, of which four are sons and three are daughters for the respondents and the last son was said to be 23 years old. It is also claimed that the respondent had been paying every month a specific amount of Rs. 10,000/- towards her day to day expenses, that the same has been stopped for the past one year and that all that has been done by the respondent made the life of the petitioner miserable. Consequently, the petitioner prays for a decree (a) for dissolving the marriage performed as per the Muslim Law in the year 1954 between the petitioner and the respondent, and (b) for passing appropriate orders regarding the maintenance and alimony payable by the respondent to the petitioner and for costs.

4. The above petition was admittedly sent by registered post and it is only the said original petition in the form of an ‘O.P’ that has been returned with the endorsement as hereunder:—

“Returned, Received by post. To be presented in person by the concerned party.”

5. At the time of hearing Mr. Yamunan, learned counsel for the petitioner contended that though none of the provisions of the Act or the Rules made thereunder specifically provide the mode of presentation, 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 belongs to a category of ‘exempted persons’ in respect of personal appearance before Courts the right or the petitioner to present the papers either through a recognised agent or by registered post should be considered and consequently, a permission to that extent has got to be granted if necessary and that therefore the manner in which the papers of the petitioner were returned cannot be said to be either appropriate or valid in law.

6. Learned counsel for the petitioner invited my attention to some of the relevant provisions of the Act as well as the Code of Civil Procedure to which immediate reference may be made hereinafter. S. 10 of the Family Courts Act, 1984 (Central Act 66 of 1984) which pertains to the procedure to be observed by the Family Court lays down that the Code of Civil Procedure, 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, before a Family Court, and for the purposes of the said provisions of the Code, the Family Court shall be deemed to be a civil Court and shall have all the powers of such Court. So far as the applications under Chapter IX of the Code of Criminal Procedure, 1973 is concerned, they have been made applicable to proceedings initiated thereunder. Sub-Section (3) of S. 10 of the Act lays down 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 the one party and denied, by the other. S. 13 of the very Act provides that notwithstanding anything contained 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 and the proviso to the said provision indicates 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. Even at this stage it may be noticed that the prohibition in respect of the appearance of a legal practitioner is total and complete anti the proviso only enables to have the assistance of a legal expert as amicus curiae to assist the court apparently for deciding the claim of the parties on merits by the Family Court. S. 20 of the Act lays down that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

7. S. 21 of the Act empowers the High Court, by means of a notification in the Official Gazettee to make such Rules as it may deem necessary for carrying out the purposes of the Act and also with particular reference relating to the subjects illustrated in Sub-Section (2) of S. 21. S. 22 of the Act provides that the Central Government may make Rules with the concurrence of the Chief Justice of India in respect of qualifications for appointment of a judge under S. 4(3)(c) of the Act. So far as the State Government is concerned S. 23 of the Act enables the State Government after consultation with the High Court by notification for carrying out the purpose of the Act and with particular reference to the various aspects illustrated in sub-section (1) of S. 23. The Rules framed by the High Court in R.O.C No. 2850/88 (F) known as ‘The Family Courts (Tamil Nadu) Rules, 1987 stipulate the working days in a week and the working hours and the places of sitting. A further provision has also been made that the Family Court shall made every effort to arrive at a settlement between the parties by conciliation and reconciliation methods and for that purpose the Family Courts may seek the assistance of Phychiatrists, Sociologists and local organisations also in arriving at a settlement between the parties. The Rules framed by the State Government in addition to the laying down the conditions of service of the Presiding Officers also provide for preparation of a list of persons and agencies in the field of Social Welfare, nomination of persons as counsellors and nominating substitutes and the fees of such counsellors and the staff relating to the Family Court. The fee for the legal practitioner appointed as amicus curiae has also been prescribed. The provisions of the Family Courts Act referred to supra and the Rules made thereunder would indicate that there is no specific stipulations as such, in any of those provisions providing for the manner of filing or presentation of papers before the Family Court.

8. Learned counsel for the petitioner next invited my attention to some of the provisions of the Code of Civil Procedure on the ground that in the absence of any specific provisions under the Family Courts Act or the Rules made thereunder the Code of Civil Procedure shall have to be applied. Order 3, Rule 1 of the Code 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 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. Apart from the prohibition contained in S. 13 of the Family Courts Act, the provision contained in Order 3, Rule 1 of the Code of Civil Procedure itself gets excluded on its own operation, where a provision is expressly made otherwise by any law for the time being in force. The prohibition contained in S. 13 of the Family Courts Act, in my view, therefore has the effect of excluding the applicability of Order 3, Rule 1 of the Code of Civil Procedure to the proceedings under the Family Courts Act to the extent of a provision made to the contrary. The restriction is only with reference to a legal practitioner and not the other categories of recognised agents, viz., persons holding powers of attorney, authorising them to make such appearance, application or the acts on behalf of such parties. But, such recognised agents cannot be a legal practitioner since what is specifically prohibited cannot be allowed to be subterfuged by allowing them to be indicated as recognised agents.

9. Learned counsel further invited my attention to S. 132 of the Code of Civil Procedure which lays down that women who according to the customs and manners of the country, ought not to be compelled to appear in public, shall be exempt from personal appearance in Court. Learned counsel also referred to Order 3, Rule 3 to impress upon the position that wherever the Code of Civil Procedure desired personal presentation it has been specifically provided in that an application for seeking leave of the Court to sue as an indigent person has to be presented in person, unless such a person is exempted from appearing in Court, Thereafter, O. 4, R. 1 of the Code of Civil Procedure has also been referred to show that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. The provisions of O. 4, Rules 2 and 3 and the Rules of the High Court on the appellate side have been referred, to impress upon the position that every appeal, petition or every proceeding shall be presented by the party in person or on his behalf by a practitioner duly appointed and unless the Court otherwise orders no document required to be presented or filed into Court which is sent by post or by telegram shall be received or filed into Court.

10. In the light of the above provisions, Mr. Yamunan, learned counsel for the petitioner though fairly concedes the position that he cannot assert a right in his client that the proceedings can be initiated by sending them by registered post, the right of the petitioner to present or file the same into a Family Court through an authorised or a recognised agent, in view of the restricted prohibition in respect of a legal practitioner cannot be denied.

11. I have carefully considered the submissions of the learned counsel for the petitioner made as referred to supra. In my view, whenever any proceedings have to be initiated or filed into a Court it has to be necessarily instituted either in person or by a recognised agent or by a legal practitioner, wherever there is no prohibition for a legal practitioner for appearing in the matter. It cannot be claimed that in the absence of any prohibition any party can send such proceedings by means of a registered post addressed to the Court concerned. I am unable to countenance such a tall or wild claim like the one made in this regard and the learned counsel for the petitioner has not substantiated his claim in this regard by means of any acceptable Rule or recognised practice in any Court. The proper way of looking at the matter is that unless in any particular category of case the procedure of the Court specifically enables or empowers the parties concerned, as in the case of the proceedings under the Industrial Disputes Act, to file or institute proceedings by sending them by registered post also it shall not be open to any party to claim such a privilege or right. Consequently, I am of the view that the petitioner has absolutely no right whatsoever on any principle of law or practice recognised in courts to claim a right to send the petition in question to the Family Court by registered post and therefore, the return of the papers cannot be said to be patently illegal or unwarranted or uncalled for.

12. The next question that requires to be considered is as to the other mode or manner of presentation, if any, than the one by sending them by registered post or by filing them in person by the very party concerned. I have already expressed the view that the prohibition contained in S. 13 of the Family Courts Act is only a vis-a-vis a legal practitioner and not in respect of a recognised agent permissible under the provisions of O. 3, R. 1 of the Code of Civil Procedure, which is rendered applicable by the provisions contained in S. 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, R. 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 filing of the matters only. The petitioner cannot take advantage of the other provisions contained in O. 3, R. 1 or O. 4, R. 1 or S. 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 S. 9 of the Family Courts Act looms large and acquires significance for consideration in this regard. S. 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 S. 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 O. 3, R. 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 exparte 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 O. 3, R. 1 or the Code of Civil Procedure.

13. In the light of the above order, office shall return the original papers pertaining to the original petition enclosed with the revision filed in this Court to the learned counsel for the petitioner so as to enable the petitioner to present the same before the Family Court for further course of action. As indicated supra office is directed to forward a copy of this order separately to the Presiding Officer, Family Court. Learned Counsel for the petitioner shall also present the papers after complying with the procedure indicated above with a xerox copy of the order annexed to the papers to be re-presented in the Family Court.

RR/VCS