Karnataka High Court
Sri Praveen S vs Smt K R Prathiba on 15 December, 2018
Author: B.Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.55560 OF 2018 (GM-FC)
BETWEEN:
Sri. Praveen .S
S/o Sri. Satya Reddy,
Aged about 33 years,
R/at 'Lakshmi', H.No.412,
4th 'B' Main Road, Bhuvanagiri,
Bengaluru - 560 043.
Represented by his
General Power of Attorney Holder
Mr. Sathya Reddy,
S/o Sri. Venkataswamappa,
Aged about 64 years,
R/at 'Lakshmi', H.No.412,
4th 'B' Main Road, Bhuvanagiri,
Bengaluru - 560 043. ... Petitioner
(By Sri. Kalyan .R, Advocate)
AND:
Smt. K.R. Prathiba
W/o Sri. Praveen .S,
D/o Sri. T.S. Ramachandragowda,
Aged about 33 years,
R/at 'Jayalakshmi Nilaya',
2nd Main Road, 5th Ward,
Rajkumar Nagara,
2
Kanakanapalya,
Kolar - 563 101. ... Respondent
(By Sri. Harish H.V., Advocate)
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
order dated 22.11.2018 on I.A. No.8 filed under Order 3
Rules 1 and 2 of CPC in G & WC No.09/2018 passed by the
Principal Family Court at Kolar, as per Annexure-A to the
writ petition and consequently to allow the I.A. No.8 filed by
the petitioner under Order 3 Rules 1 and 2 of CPC and etc.
This Petition coming on for Preliminary Hearing this
day, the Court made the following:
ORDER
The petitioner-husband filed the present writ petition against the order dated 22.11.2018 on I.A. No.8 made in G and WC No.09/2018 rejecting the application filed by the Power of Attorney Holder to represent his son- Sri. S. Praveen in G and WC case.
2. The respondent-wife filed the petition under the provisions of Sections 7, 9 10, 12 and 25 of the Guardian and Wards Act before the District Family Court, Kolar, for custody of minor children Pradyumna Praveen and Dhanvi 3 Pranathi raising various contentions. She also filed interim application for custody of children.
3. The present petitioner represented by the Power of Attorney Holder, his father-Sathya Reddy, aged about 64 years filed I.A. No.8 under Order 3 Rules 1 and 2 of the Code of Civil Procedure, to permit him to be appointed on behalf of respondent therein as GPA Holder to conduct G and WC case. The Power of Attorney Holder filed an affidavit and contended that the respondent and the petitioner are husband and wife and they have two minor children namely Master Pradyumna Praveen, aged about 6 years and Kumari Dhanvi Pranathi, aged about 4 years and they are currently in the custody of respondent-father. The respondent-father is a permanent resident of Bengaluru and minor children are also studying and living happily with the respondent-father at Bengaluru. He further contended that at the time of filing vakalathnama and application under Section 13 of the Family Courts Act by 4 the Power of Attorney Holder, the petitioner's counsel objected that the Power of Attorney Holder has no power to file vakalathnama on behalf of respondent and there is no provision to entertain the same. The application produced along with the documents and also Power of Attorney Holder to appoint advocate may be permitted under Order 3 Rules 1 and 2 of the Code of Civil Procedure. Therefore, he sought to allow the application.
4. The said application was resisted by the present respondent-wife. Considering the application and objections, the Principal Judge, Family Court, Kolar by the impugned order dated 22.11.2018, rejected the application on merits. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri. Kalyan .R, learned counsel for the petitioner-husband contended that the impugned order 5 passed by the Family Court rejecting the application filed under Order 3 Rules 1 and 2 of the Code of Civil Procedure by the Power of Attorney Holder is erroneous and contrary to the materials on record. He would further contend that the impugned order passed by the Family Court is not a speaking order and the Power of Attorney Holder is none other than the father of the present petitioner. The petition filed before the Family Court by the respondent is only to harass the petitioner herein and further contended that the petitioner-husband is working at Bengaluru and it would be difficult for him to appear personally on all dates of hearing. The Family Court without application of mind and without appreciating all these aspects has mechanically proceeded and dismissed the application. He would further contend that even under Section 13 of the Family Court Act, a party to the proceedings may appear through a representative. There is no bar either under the Code of Civil Procedure or under the Family Courts Act. Therefore, the impugned order passed by the Family Court cannot be 6 sustained in law. Hence, he sought to allow the writ petition.
7. Per Contra, Sri. Harish, learned counsel for the respondent-wife sought to justify the impugned order passed by the Family Court and contended that the petitioner-husband has filed M.C. No.206/2015 before the Family Court, Bengaluru, under the provisions of Section 13(1)(1a) of Hindu Marriage Act, for divorce and the respondent-wife also filed M.C. No.182/2015 under the provisions of Section 9 of the Hindu Marriage Act before the Family Court, Bengaluru and she has also filed C.Mis. No.15/2015 under the provision of Section 12 of the Domestic Violence Act at Bengaluru. The petitioner- husband himself is conducting those proceedings. The only grievance made by the Power of Attorney Holder of the petitioner in the affidavit filed along with I.A. No.8 and as well as in the General Power of Attorney by the petitioner is that, there is life threat to the petitioner-husband and he is 7 not in a position to appear before the Kolar Court on all dates of hearing and that he wont get leave to attend the case, is not a ground to consider since he alone is conducting the proceedings pending between them in Bengaluru by taking leave. He would further contend that the petitioner-husband also filed Criminal Petition No.5381/2018 before this Court to quash the proceedings in Crime No.147/2018. The said proceedings are stayed and matter is still pending. The petitioner-husband also filed Civil petition in CP No.279/2018 to transfer G and WC case from Kolar to Bengaluru, which is also pending. The respondent-wife also filed writ of Habeas Corpus in WPHC No.75/2018, which is dismissed as withdrawn. It is also contended that the Power of Attorney Holder of the present petitioner also filed I.A. No.7 with regard to jurisdiction of Kolar to entertain G and WC case and the said application came to be rejected on 22.11.2018 and has reached its finality.
8
8. He further contended that in all the cases stated supra, the petitioner-husband alone is appearing for the proceedings and certainly he can get leave to appear before the District Family Court, Kolar also, as his presence is necessary in the case. Therefore, the Family Court is justified in passing the impugned order rejecting the application filed by the Power of Attorney Holder. Therefore, he sought to dismiss the writ petition.
9. Having heard the learned counsel for the parties, it is undisputed fact that the present petitioner and respondent are husband and wife and their marriage was solemnized on 29.01.2012 at Gokul Kalyan Mantap, Kolar as per Hindu Rites and Customs. It is also not in dispute that the petitioner filed the petition for divorce, the respondent-wife filed the petition for restitution of conjugal rights as well as petition under Domestic Violence Act and those proceedings are pending before the Family Court, Bengaluru and some petitions are pending before this 9 Court. In all those proceedings, the petitioner-husband himself is appearing on every date of hearing, especially before the Family Court, Bengaluru. In the General Power of Attorney executed by the petitioner at Annexure-F, it is stated that the petitioner-husband is working as a Manager at Aegno Sports and he cannot get leave and moreover he is having life threat at the hands of respondent-wife and her family members, since the petitioner is looking after the children and therefore, he is not in a position to appear before the Court at Kolar on all dates of hearing.
10. The Family Court after considering the entire materials on record, has recorded a finding that in the complaint before the Deputy Commissioner of Police, Bengaluru dated 20.08.2018, the petitioner has specifically stated that there is life threat to him and his parents from respondent-wife and her family members and requested to take legal action in accordance with law to protect all of them. When there is life threat to petitioner as well as his 10 parents, that itself cannot be a ground to allege that he cannot appear before the Family Court, Kolar. There is life threat to his father as alleged and he cannot drive his father, who is aged about 64 years to attend Family Court, Kolar, on every dates of hearing.
11. Insofar as his work is concerned, the petitioner has not stated that he is not getting leave from his office to appear before the Family Court at Bengaluru on every date of hearing. When he is able to get leave to appear on every date of hearing before the Family Court at Bengaluru in all the three cases stated supra, his contention that he wont get leave to appear in G and WC case before the Family Court, Kolar, which is about 70 kilometers from Bengaluru, cannot be accepted and is not a ground to appoint his father as a Power of Attorney Holder. When the petitioner- husband aged about 34 years is able to conduct the cases himself, which are pending between him and his wife before the Family Court, Bengaluru, as well as before this Court in 11 CP No.279/2018 and Crl. Petition No.5381/2018, why he has executed the Power of Attorney to his father, who is aged about 64 years to conduct case in the G and WC case only before the Family Court, Kolar is not forthcoming.
12. The Family Court further recorded finding that since the dispute is between the wife and husband with regard to the custody of the minor children, personal appearance of the present petitioner is necessary and it is not inconvenient for him to appear since the father and the mother are fighting for custody of their children. Taking into consideration the paramount interest of the minor children, the Family Court has considered and found that the appearance of father is necessary as contemplated under Order 3 Rules 1 and 2 of the Code of Civil Procedure.
13. Ultimately, it is the discretion of the Court to decide under the provisions of Order 3 Rule 1 of the Code of Civil Procedure which clearly depicts that "provided that, any such appearance shall, if the Court so directs be made 12 by the party in person" since the rights of the children are involved, the power of attorney holder, who is aged about 64 years may not be aware of the personal disputes between wife and husband.
14. Considering the facts and circumstances of the present case, this Court is of the considered opinion that the impugned order passed by the Principal Judge, Family Court, Kolar rejecting the application, is just and proper. The petitioner has not made out any ground to interfere under writ jurisdictions.
15. Insofar as the contention raised by the learned counsel for the petitioner in the case of Smt. Mangala Suryadevara Vs. Dr. Srinivasa Reddy Appakondu made in W.P. Nos.8590-8591/2015 (GM_FC), there is no quarrel with regard to law laid down by this Court. The Power of Attorney Holder can appear in the proceedings where the party is not in a position to attend on all dates of hearing personally. But in the present case, when the petitioner is 13 able to appear on all dates of hearing personally, in all the three cases, pending before the Family Court at Bengaluru and is also able to conduct proceedings pending before this Court, there is no reason why he is not able to appear personally before the Family Court, Kolar. It applies to all cases either pending before the Family Court, Bengaluru or before this Court or Family Court, Kolar. Therefore, the facts are entirely different in Mangala Suryadevara's case (referred supra), which has no application to the facts and circumstances of the present case.
16. Insofar as the contention raised by the learned counsel for the petitioner in the case of Sajida Banu Vs. Halema Banu and Others reported in ILR 2015 KAR 635 wherein, the Family Court held that in exceptional circumstances the parties are permitted to represent by the Power of Attorney Holder or pleader. As already stated above, if the father was given Power of Attorney in all the cases on the ground that the petitioner is not in a position 14 to appear in the matters, the matter would have been different. He cannot choose the Power of Attorney Holder for one case and conduct other cases personally. It clearly indicates that the Power of Attorney is executed for the reasons best known to the husband-petitioner.
17. In view of the above, petitioner has not made out any ground to interfere with the impugned order passed by the Family Court in exercise of power under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/-
JUDGE MBM