The petitioner herein is the respondent in HMOP No. 193 of 2002 on the file of Family Court, Coimbatore. The respondent/husband has filed the above HMOP under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 praying for dissolution of the marriage solemnised on 17-05-2000.
2. Due to misunderstanding, the petitioner herein stayed with her parents, later she left India to pursue her studies in United States of America. In the meanwhile, she has executed a registered power of attorney dated 14-12-2001 in favour of her father, who is representing this case. The respondent/husband has filed HMOP after she has left India. The court below issued summons to the petitioner herein directing her to appear before the court on 20-05-2002, which was received by her mother. On 20-05-2002, the petitioner's father filed an application under Order III Rule 2 and Section 151 of CPC seeking permission of the Court to defend the HMOP NO. 193 of 2002 on behalf of the petitioner. The said application was returned by the court below and the petitioner herein was set ex-parte on 20-05-2002 itself. The petitioner's father has represented the above petition on 21-05-2002 with an endorsement that the petitioner has executed a power of attorney in his favour and in 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, the present revision is filed.
3. The point for consideration in this petition is whether the petitioner can take advantage of Order III Rule 1 or 2 of CPC or Section 132 of CPC?
4. Mr. Ramamoorthy, learned counsel appearing for the petitioner submitted that the lower court failed to take note of the prevailing circumstance that the petitioner has left India well before filing of HMOP No. 193 of 2002; that the petitioner herein has executed a registered power of attorney to defend all the court proceedings in favour of her father; that the family court ought to have granted permission to the petitioner's father to defend her case in virtue of the power of attorney; that the court below ought not to have returned the application filed by the petitioner's father under Order III Rule 2 and Section 151 of CPC; that the trial court ought not to have set the petitioner ex-parte on the first hearing itself despite an application filed by her father seeking permission of the court to defend the suit.
5. Mr. Sivagnanam, learned counsel appearing for the respondent argued that the power of attorney was executed by the petitioner only to manage her assets but not to contest the cases; that the petitioner cannot take advantage of the provisions of Order 3 Rule 1 and 2 of CPC or Section 132 of CPC; that under Section 10 (3) of the Family Court Act, the court is empowered to lay down its own procedures notwithstanding the provisions of Section 10 (1) (2) of the Family Courts Act and prayed for dismissal of the revision.
6. The learned counsel appearing for the petitioner relied on a decision of this Court reported in 1996 1 L.W 222 (S. Venkataraman v. L. Vijayasaratha) wherein the Division Bench of this Court held that there is no bar for the paties to have assistance through counsel, however, it is the discretion of the family courts to allow legal assistance, such discretion may be exercised by the court in the interest of justice and after taking into consideration of the nature of the case and on the condition under which the parties are placed. The Division Bench further held that Section 13 of the Family Courts Act does not prescribe a total bar for representation by a legal practitioner which bar would itself be unconstitutional. However, the Division Bench held that the intentment of the legislature obviously was that the problems or grounds for matrimonial breakdown or dispute being essentially of a personal nature, that it may be advisable to adjudicate these issues as far as possible by hearing the parties themselves and seeking assistance from counsellors. Here, the issue is as to whether the father of the petitioner in the capacity of a power of attorney could represent the petitioner or not.
7. The learned counsel for the petitioner has also relied on a decision of the Karnataka High Court reported in AIR 1999 Karnataka 427 (Mrs. Komal S. Padukone v. Principal Judge, Family Court at Bangalore City and another). In the said case, the wife was staying in United States of America has left India before notice in divorce proceedings were served. She felt it would be difficult for her to come over to India before a particular period, hence sought for permission to engage a counsel and exemption from personal appearance till that period. The Karnataka High Court has held that there is nothing unreasonable in the said request and ultimately the exparte order passed on her application by the court below was set aside, since the court felt that it would cause irreparable injury to her.
8. Yet another decision relied on by the counsel for the petitioner is 1 (1994) DMC 557 (S.M. Syed Amina Beevi v. Thaika Sahib Alim) wherein the wife has sought for dissolution of the marriage which was performed under the Muslim law. The said petition was sent by registered post which was returned by the Court with an endorsement that to be presented in person by the party. The Court held 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 papers cannot be said to be patently illegal or unwarranted or uncalled for. In the said case, this court expressed the view that 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 III Rule 1 of CPC, which is rendered applicable by the provisions contained in Section 10 of the Family Courts Act to the extent to which there is no provision otherwise contained to the contra. In the said judgment, it is also observed that the petitioner was entitled to have the papers filed or presented before the Family Court through a recognised agent in terms of order III Rule 1 of CPC and such a recognised agent at any rate cannot be a legal practitioner and parties cannot take advantage of the provisions of Order III, Rule 1 or Order IV Rule 1 to avoid personal appearance once and for all.
9. One another judgment of the Hon'ble Apex Court was relied on by the learned counsel for the petitioner reported in AIR 1982 SC 710 (A.K Roy v. Union of India) wherein in Para-95 it was held thus: —
“95. Another aspect of the matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.”
In this case the Apex Court observed that embargo on the appearance of legal practitioners that they should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner and denial of legal representation is not a denial of natural justice per se and therefore if a statute excludes the facility expressely, it would not be open to the Tribunal to allow it. However, the Hon'ble Supreme Court observed that the person affected is entitled to be assisted by a friend, who is not a legal practitioner.
10. Now, we look into the relevant provisions of the Family Courts Act and Civil Procedure Code touching the subject matter of this case;-
Family Courts Act
“9. Duty of Family Court to make efforts for settlement (1) In every suit or proceeding, 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 proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the family court that there is a reasonable possibility of a settlement between the parties, the Family Courts may adjourn the proceedings for such period as it thinks fit to enable attempts to be made effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings
10. Procedure generally. - (1) Subject to the other provisions of this Act and the 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 purposes 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 that 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 one party and denied by the other.
13. Right to legal representation.- Notwithstanding anything contained in an 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.
Code of Civil Procedure
Order III Rule 1 of CPC Appearances, etc., may be in person, by recognised agent or by pleader 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.
2. Recognised Agents The recognised agents of parties by whom such appearnces, applications and acts may be made or done are -
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.
11. It is evident from various provisions of the Family Courts Act and Rules that the Family Courts have been estab-1 ished to adopt different approach to dispose the cases expeditiously, besides for taking reasonable efforts for settlement before commencement of trial.
12. As per the provisions of Section 9, in every proceedings, at any stage, endeavour shall be made by the Court in the first instance to persuade the parties in arriving at a settlement and if it appears to the Court there is a reasonable possibility of settlement, may adjourn the proceedings to enable attempts to be made to effect such a settlement.”
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.
15. A reasonable opportunity to defend the case essential is a fundamental principles of natural justice. The Family Court has hastily set the petitioner exparte in the first hearing despite representation by authorised agent/father was made. The Family Court has returned the petition without passing order on merits and simultaneously passed ex-parte order against the petitioner when there was no neglect on her part. Hence, the ex-parte order dated 20-05-2002 is set aside. Considering the facts and circumstance of the case, it would be more appropriate to afford reasonable opportunity to the petitioner by ordering fresh notice by the Family Court.
The revision is ordered to the extent indicated above. No costs. Connected CMP is closed.
VCJ/VCS