Madras High Court
Dr. K. Malathi vs Dr. S. Rajasekaran on 21 March, 2003
Equivalent citations: AIR2003MAD322, II(2003)DMC415, (2003)2MLJ33, AIR 2003 MADRAS 322, (2003) 2 MAD LJ 33, (2003) 3 CIVLJ 484, (2003) 2 DMC 415, (2003) 3 MAD LW 870, (2003) 7 ALLINDCAS 498 (MAD)
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the order of the Principal Judge, Family Court, Chennai dated 08.11.2002 made in I.A. No. 2388 of 2002 in O.P. No. 126 of 1999, dispensing with the presence of the respondent herein till the final disposal of O.P. No. 126 of 1999, the petitioner - wife has filed the above revision under Article 227 of the Constitution of India.
2. Heard, Mr. R. Sundarrajan, learned counsel for the petitioner and Mr. B. Thanikachalam, learned counsel for the respondent.
3. The grievance of the petitioner - wife is that the Family Court has passed an order immediately on receipt of the petition from her husband even without ordering notice. The husband had filed O.P. No. 126 of 1999, for divorce against the petitioner herein - wife on the ground of cruelty. It is stated that the husband examined himself as P.W.1 and while his cross examination was in progress, he filed a petition in I.A. No. 2388 of 2002, stating that he is going abroad, therefore his presence may be dispensed with. By the impugned order, the Family Court allowed his application and dispensed with his personal appearance. In the meanwhile, the petitioner - wife has filed an application to dismiss the main O.P., for non prosecution, since her husband is not attending the Court. She also filed another application for maintenance of her minor daughter. It is also the grievance of the petitioner that the Family Court has not taken up those applications. As per the Family Courts Act and Rules made thereunder, the personal appearance of the parties cannot be dispensed with, particularly at the time of enquiry.
4. One N. Subramanian, registered Power of Attorney of the respondent has filed a counter affidavit stating that from November, 1999, his son had been pressing for early disposal of the case, since he is expecting orders of Foreign Assignment through proper channel. His son was examined from 08.03.2002 to 11.11.2002. P.Ws.2 and 3 were also examined and evidence on the side of his son was closed. The revision petitioner itself was examined in chief on 03.12.2002, 09.12.2002 and 11.12.2002. Since his son got the posting at Saudi Arabia, his son informed the Court and filed a petition in I.A. No. 2388 of 2002 in O.P. No. 126 of 1999. After hearing the parties, the learned Principal Judge, Family Court allowed the petition on 08.11.2002. The examination, cross examination, re-examination and further examination in chief, cross examination of his son was completed as early as on 11.11.2002. He left India after 14.11.2002. After examination of the revision petitioner, the revision petitioner informed the Court that P.W.1 is going to be recalled for further cross examination. So, the oblique motive of the petitioner can be ascertained from her own conduct. Now, the petitioner has come forward with this revision. The petitioner filed a petition under Section 26 of the Hindu Marriages Act, claiming a sum of Rs.10,000/- per month towards permanent alimony and for maintenance of a female child. His son filed a counter affidavit opposing the petition. From 08.11.2001, his son has been making sincere attempts to get the matter disposed of as early as possible. It is only due to the conduct of the revision petitioner, the main O.P. could not be disposed of, hence the revision petitioner is not entitled to take advantage of her own wrongful conduct in delaying the matter to find fault with the orders of the Family Court. The delay is due to her own making.
5. The only point for consideration in this revision is, whether the Family Court is justified in ordering I.A. No. 2388 of 2002 in O.P. No. 126 of 1999, dispensing with the presence of the husband till the final disposal of O.P. No. 126 of 1999?
6. Mr. R. Sundarrajan, learned counsel for the petitioner vehemently contended that in the light of the procedure contemplated under the Family Courts Act and Rules, 1984, the presence of both parties cannot be dispensed with, accordingly, the impugned order dispensing with the presence of the husband till the disposal of the O.P. No. 126 of 1999 cannot be sustained.
7. On the other hand, Mr. B. Thanikachalam, learned counsel for the respondent would contend that after completion of husband's evidence as P.W.1 and in the light of the foreign assignment through proper channel, he has to leave India forthwith, the Family Court is justified in dispensing his personal appearance.
8. It is seen that the marriage of the petitioner and the respondent was performed on 20.05.1990 and a female child Selvi. Bhagya was born in 1991, alleging desertion and cruelty, the husband filed H.M.O.P. No. 68 of 1998 on the file of Principal Subordinate Judge, Cuddalore and thereafter, under the orders of this Court the same was transferred to the file of Principal Judge, Family Court, Chennai and re-numbered as O.P. No. 126 of 1999. The impugned order shows that the document produced by the petitioner therein - husband that he got an appointment at Saudi Arabia and his flight for departure on 14.11.2002 has also been confirmed. Considering all these aspects and of the fact that he had completed his evidence by examining himself as P.W.1, the Family Court passed the order dispensing his presence. Though the said order does not say whether his dispensation is for a particular period or not, in the light of the relief prayed for in the petition, namely I.A. No. 2388 of 2002, it is presumed that his presence has been dispensed with till the final disposal of the O.P., The said petition has been filed under Section 151 of the Code of Civil Procedure read with Section 13 of the Family Courts Act. Section 151 of CPC relates to inherent powers of the Court; Section 13 of the Family Courts Act relates to representation by legal practitioner. Fair reading of Section 13 of the Family Courts Act indicates that there is no total prohibition of being represented by a legal practitioner. The provision clearly provides that if the Family Court considers it necessary in the interest of justice may seek assistance of legal expert as amicus curiae. However, whenever any proceeding is initiated or filed into a Court (Family Court), it has to be either in person or by recognised agent or by a legal practitioner, wherever there is a prohibition for a legal practitioner for appearance in the matter, personal appearance or presence of the party concerned becomes inevitable and necessary at any rate from the stage of hearing after the appearance of the other side to the proceedings.
9. Mr. R. Sundarrajan, learned counsel for the petitioner has very much relied on the decision of Raju, J., (as His Lordship then was) reported in the case of S.M. Syed Amina Beevi vs. Thaika Sahib Alim in I (1994) DMC 557. The learned Judge had an occasion to consider similar question. After referring Section 13 of the Family Courts Act and relevant provisions from the CPC, the Hon'ble Judge has held, " 12. ...... I have already expressed the view that the prohibition contained in Sec. 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 Courts 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 filing 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 Sec. 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 acquired significance for consideration in this regard. Section 9 of the Act specifically provides that in every suit or proceedings, endeavor 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 endeavor of efforts shall be in accordance with the Rules. Personal appearance or present 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 behavioral 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. "
10. Apart from the above decision, the learned counsel for the petitioner has also relied on the decision of A. Kulasekaran, J., reported in the case of Pavithra rep. by Power Agent S. Rajkumar Kalingarayar vs. Rahul Raj reported in 2003 (1) M.L.J. 182. In that decision, the learned Judge after referring the case of S.M. Syed Amina Beevi vs. Thaika Sahib Alim reported in 1994 DMC 557 has explained that, "8. ..... 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 O.3, Rule 1 of C.P.C. And such a recognised agent at any rate cannot be a legal practitioner and parties cannot take advantage of the provisions of O.3, Rule 1 or O.4, Rule 1 to avoid personal appearance once and for all. "
11. It is clear that in the light of Section 13 of the Family Courts Act, Order 3 Rule 1 and Order 4 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. In our case, there is no dispute that the husband was appearing before the Court for all the earlier hearings. It is also seen from the Court proceedings that he was examined as P.W.1 from 08.03.2002 to 11.11.2002 exhaustively. It is also brought to my notice that two more witnesses, namely P.Ws.2 and 3 were all examined and ultimately, the evidence on the side of the husband was closed. It is further seen that the revision petitioner was also examined in chief on 03.12.2002, 09.12.2002 and 11.12.2002. Since the husband got posting at Saudi Arabia, after informing the Court, filed a petition in I.A. No. 2388 of 2000. The Principal Judge, Family Court, taking note of all the above aspects, though has not passed a considered order, after referring the relevant materials, allowed his petition on 08.11.2002.
12. In the light of the dispute, I have also summoned all the materials from the Family Court and it show that in so far as the husband is concerned, his chief, cross and re-examination was completed even on 11.11.2002. The power of attorney holder, father of the husband has informed this Court that his son left India on 14.11.2002. In such a circumstance, while holding that at the stage of enquiry, the parties to the Family Court are necessarily to be present, in the light of the peculiar circumstance and also of the fact that the evidence on the side of the husband was closed, the revision petitioner has cross examined him at length, in the light of the foreign assignment, I do not find any valid reason to interfere with the impugned order of the Family Court. As a matter of fact, learned counsel for the respondent - husband asserted that if the Court insist, at any time he will come back and appear before the Family Court.
In the light of what is stated above and in view of the peculiar circumstance, I do not find any valid ground to interfere with the impugned order. Consequently, the revision fails and the same is dismissed. No costs.
In view of the dismissal of the main revision, connected CMP., is also dismissed.