Madras High Court
Nathiya Faru vs Rojan Roux on 26 March, 2009
Author: S. Palanivelu
Bench: S. Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2009 CORAM: THE HONOURABLE MR.JUSTICE S. PALANIVELU C.R.P.(PD).No.163 of 2009 and M.P.No.1 of 2009 Nathiya Faru ... Petitioner Vs. Rojan Roux ... Respondent Civil Revision Petition is filed under Article 227 of the Constitution of India against the decree and order passed in I.A.No.543 of 2008 in M.O.P.No.6 of 2008 dated 6.11.2008 passed by the Family Court at Pondicherry For Petitioner : Ms. D. Geetha For Respondent : Mr. Anbarasan ORDER
The petitioner is mother of one Roux Pauline who is wife of the respondent. Both of them have got three children. Their marriage was solemnized on 24.04.2000. After the marriage, both the spouses moved to France for eking out the likelihood. All the three children were born in France and their names have been entered in the Passport of the respondent and without the help and assistance of the respondent, the children could not travel out of France.
2. Due to certain misunderstandings, the respondent filed M.O.P.No.6 of 2008 on the file of the Family Court, Pondicherry for dissolution of marriage and the same is pending. Since the children are in France, their mother has necessarily to be in France itself. She could not come over to Pondicherry for every hearing of the case and hence her mother has come forward with a petition for permission to represent on behalf of her daughter Roux Pauline as Power Agent and to defend the case.
3. In the counter affidabvit filed by the respondent, he has stated inter alia that there is no necessity for grant of permission to the petitioner to defend her daughter, since she is able to come over to Pondicherry to defend the case.
4. After hearing both parties, learned Family Court Judge, Pondicherry turned down the request of the petitioner, by observing that in the Family Courts, the appearance of the parties are inevitable, in view of the duty cast upon the Family Court to make every endeavour to settle the matter by doing counselling work.
5. Learned counsel for the petitioner would strongly contend that the Court below has carried out misreading that the names of the children have been entered into the mother's passport, which is a wrong conclusion. By an earlier order, the Family Court in I.A.No.852 of 2008 dated 9.10.2008, directed the respondent to produce xerox copy of his passport for perusal, which shows that in the passport of the respondent the names of three children have been entered besides their photographs.
6. It is her further contention that even though the provisions of the Family Courts Act prohibit appearance of legal practitioner on behalf of a party before the Family Court, still any person, not having legal profession, may be permitted to represent on behalf of a party in special circumstances. It is also urged that for the effective hearing of the case, when the presence of a party before this Court is indispensable, the Court may direct him to be present before the Court and it is the duty of the party to make himself to appear before the Court as and when it required.
7. Arguing on the other side of the coin, the learned counsel for the respondent would submit that there is no infirmity in the order passed by the Court below either factually or legally, since no Power of Attorney can appear on behalf of his principal as witness to bring the facts before the Court which are expected to be within the personal knowledge of the principal. It is his further contention that there is no impediment for the wife to appear before the Court for hearings as observed by the Court below and that the presence of the parties themselves before the Court in the matrimonial cases would be available for amicable settlement of the matter.
8. In support of his contention, learned counsel for the petitioner would place reliance upon two decisions of this Court. In 2003 (1) MLJ 182 [Pavithra rep. By P.O.A S. Rajkumar Kalingarayar v. Rahul Raj], this Court, while discussing this subject in extenso, has observed that there is no embargo for a person interested to defend a party in the matrimonial case before the Family Court and the appearance of the party can arise only at the time of particular stage of the case. The operative portion of the judgment goes thus:
"14. O.3, Rule 1 of C.P.C. 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 O.3, rule 1 is subject to any law for the time being in force. In addition to the said exclusion in the code, Sec.13 of Family Courts Act prohibits the operation of O.3, Rule 1 to the extent that the case being represented by the legal practitioner. The recognised agent appointed under O.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 to 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."
9. Learned counsel for the petitioner also garnered support from a decision of this Court in 2003 (2) CTC 166 [ Dr. K. Malathi v. Dr. S. Rajasekaran], in which it has been observed that since the appearance of legal practitioner before the Family Court is barred by statute, there is no stumbling block for the Court to permit any person to represent a party in a matrimonial matter. The following is the relevant portion of the judgment "10. It is calear that in the light of Section13 of Family Courts Act, Order 3, 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."
10. Learned counsel for the respondent cited another authority of this Court in 2008 (1) MLJ 354 [Sakunthala v. Anandarajan and another] in which a settled principle, that is to say, a Power of Attorney holder can appear as witness only in the capacity as a witness in his personal capacity and wherever knowledge he has about the case, he can state orally and he cannot appear as witness in the capacity of that party. While adverting to this position, the learned counsel for the respondent also says that since the affairs which are more specific and intimate between the spouses could not be expected to be spoken by the mother of the wife and her evidence, even if it comes to record, may not be useful. It is the crux of his contention that the mother at any cost, could not represent her daughter. This court in the above said decision has held as under:
"9. The Supreme Court has considered the judgment of the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan AIR 1998 Raj. 185, wherein it was held that the word "act" under Order 3 Rule 2, C.P.C. Does not include the act of power of attorney holder to appear as witnesses on behalf of the party. It was further held that the power of attorney holder can appear only as a witness on behalf of the party in the capacity of that party. It was further observed that even if the plaintiff is not able to appear before the Court, the plaintiff is not left in the lurch. There is a provision for appointment of Commissioner for reording evidence under C.P.C."
11. As far as the permission to be granted to the Power Agent is concerned, the general principles holding the field are discussed in Sakunthala's Case (supra). Insofar as the proceedings in matrimonial cases which are being conducted under the special statutes, Family Courts Act are concerned, the peculiar circumstance available is that no legal practitioner is allowed to appear for parties. In such circumstances, if any of the party to the proceedings is prevented from appearing before the Court and which cause is satisfactory to the Court, there is no legal impediment to grant permission in this regard. The decisions of this Court have thrown much light on the subject, which go to show that the parties are at liberty to present through the authorised agents on various hearings and as and when the court is of the opinion that the presence of the party is required for the purpose of counselling or for possible or amicable settlement, then he may be directed to appear before the Court to proceed further.
12. As far as appearing as witness on behalf of the principal is concerned, the principles laid down in Sakunthala's case (Supra) have to be followed. At the time of the examination of the parties, it is for the Court to follow the procedures and guidelines as formulated in the above said decision and other decisions on this point.
13. As for the hearings of the case earlier to the commencement of the trial, granting permission to the petitioner to represent her daughter, would meet the ends of justice. Taking note of the peculiar circumstances available here, this Court is of the considered view that the request of the petitioner has to be heeded to.
14. In such view of this matter, the order impugned, passed by the learned Judge, Family Court, Pondicherry is not sustainable, which is liable to be set aside and it is accordingly set aside.
15. In fine the Civil Revision Petition is allowed. No costs. Connected M.P. is closed.
ggs To The District Munsif Court cum Judicial Magistrate, Nannilam