(2013) 306 KLR 028

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN

TUESDAY, THE 21ST DAY OF MAY 2013/31ST VAISAKHA 1935

Mat.Appeal.No. 854 of 2008

-------------------------------

OP 1290/2005 of FAMILY COURT,THRISSUR

APPELLANT(S)/PETITIONER:

----------------------------

K.M. GEORGE, AGED 44 YEARS, S/O. MATHAI, KALLAKATHU HOUSE, KURAVILANGADU VILLAGE KOTTAYAM DISTRICT, PRESENTLY RESIDING AT SWITZERLAND REP. BY HIS P/A, HOLDER K.M. JOSEPH (BROTHER) S/O. MATHAI, KAILAKATHU HOUSE, KURAVILANGAD VILLAGE, KOTTAYAM DISTRICT.

BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI

RESPONDENT(S)/RESPONDENT:

---------------------------------

SHEELA, D/O. SUBHALITHAN, PADUR DESOM, VENKIDANGU VILLAGE CHAVAKKAD TALUK.

BY ADV. SRI.V.G.ARUN ADV. SRI.T.R.HARIKUMAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-05- 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MAT. APPEAL 854/2008

APPENDIX

APPELLANT'S EXHIBITS:-

1. ANNEXURE-A1: TRUE COPY OF THE DRAFT AGREEMENT ENTERED INTO ON BEHALF OF THE APPELLANT AS WELL AS THE RESPONDENT.
2. ANNEXUREA2: TRUE COPY OF THE JUDGMENT DATED 9-6-2008 IN W.P. (C) No. NO.12189/2008 OF THIS HONOURABLE COURT. 

ANTONY DOMINIC & P. D. RAJAN, JJ.

=.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.=

Mat. Appeal No. 854 of 2008

=.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.=

Dated this the 21st day of May, 2013

Head Note:-

Family Courts Act, 1984 - Section 10 - Kerala Family Courts (Procedure) Rules, 1989 - Rule 5, 7 & 9 - Power of Attorney - Personal appearance of the party - It is open to a party to present a petition either in person or through a power of attorney holder - therefore, the right of the party to be represented by his power of attorney holder in a proceedings before the Family Court has already been recognized - permitting a party to be represented through his power of attorney holder will not detract from the power of the court to insist on the personal appearance of the party concerned at any subsequent stage of the proceedings for counselling or for evidence.

J U D G M E N T

ANTONY DOMINIC, J.

Appellant challenges the order dated 19th August, 2008 passed by the Family Court, Thrissur deciding the preliminary issue of maintainability raised by the respondent in O.P. No.1290/2005 against him.

2. The appellant filed O.P.No.1290/2005 seeking a declaration that the respondent is not his legally wedded wife. He also sought consequential reliefs. In the said proceedings the petitioner was represented by his power of attorney holder, his brother. Maintainability of the proceedings through a power of attorney holder was raised by the respondent before the Family Court and later, before this court in W.P.(C) No.12189/2008. This Court by judgment dated 9th of June, 2008, directed the Family Court to decide the maintainability as a preliminary issue. Accordingly, the Family Court heard the parties and passed order dated 19th August, 2008 holding that the O.P. being a case for declaring the marital status, presence of the appellant in person is highly essential for counselling purposes and that he failed to attend the counselling. It is also held that the power of attorney holder waited to proceed with the case without completing the counselling. The Family Court also held that the appellant did not approach the court with clean hands. For these reasons, the Family Court held that the power of attorney holder was not entitled to continue the prosecution and for that reason the petition was dismissed, which is under challenge in this appeal.

3. The counsel appearing for the appellant referred to the provisions of the Family Courts Act, Family Courts (Procedure) Rules, the Family Courts (Kerala) Rules and also the provisions of the Code of Civil Procedure. She also made reference to a Division Bench decision of this court in Mukundan Naveen V. Anjalika Dinesh (2011(3) KLT 175) wherein, according to her, a similar issue has been decided in favour of the appellant. On the other hand, the learned counsel for the respondent contended that in the nature of the controversy that is arising for adjudication, both for counselling and also for the purpose of evidence, the presence of the appellant in person is necessary to. It is stated that to avoid the presence of the appellant, the proceedings were instituted through the power of attorney holder. He also contended that, as rightly found by the Family Court, the petition was instituted suppressing various material facts. Therefore, according to him, the Family Court was justified in dismissing the petition.

4. We have considered the rival submissions and also gone through the statutory provisions as well as the impugned order. Since the very issue of maintainability of a similar proceedings filed through a power of attorney holder was considered by a Division Bench of this Court in 2011(3) KLT 175 (Supra), we do not think it necessary to refer to all the statutory provisions once again. This was also a case where the Family Court declined to entertain a petition filed through a power of attorney holder. In the above decision, the Division Bench, after making reference to all the statutory provisions and also the relevant precedents, held that it is open to a party to present a petition either in person or through a power of attorney holder. Therefore, the right of the party to be represented by his power of attorney holder in a proceedings before the Family Court has already been recognized by this Court in the decision referred above. However, this Court has clarified that permitting a party to be represented through his power of attorney holder will not detract from the power of the court to insist on the personal appearance of the party concerned at any subsequent stage of the proceedings for counselling or for evidence.

5. In such circumstances, the view taken by the Family Court that since the case involves a declaration of marital status, the appellant cannot be permitted to be represented by his power of attorney holder is untenable. As far as the other conclusion that the appellant did not approach the court with clean hand is concerned, that is a matter on the merits of the controversy and was irrelevant at the preliminary stage. In such circumstances, we are unable to sustain the order of the Family Court.

6. Therefore, we set aside the order dated 19th August, 2008 of the Family Court dismissing O.P. No.1290/2005. However, we notice from the order that on more than one occasion the appellant failed to appear for counselling. Counselling is part of the statutory duty of the Family Court and such a procedure cannot be dispensed with. The failure of the appellant to respond to the orders of the Family Court in this behalf is certainly a lapse on his part.

7. Taking note of all these facts, we dispose of the appeal directing that the Family Court shall entertain the petition and clarify that it will be free to call upon the appellant to be personally present for counselling or at any stage of the proceeding. We also clarify that it shall be the duty of the appellant to co-operate and to be present on all such occasions and that in the event of his failure, the Family Court will be free to pass appropriate orders as it deems fit.

ANTONY DOMINIC, JUDGE.

P. D. RAJAN, JUDGE.

nkm.