Sethi P.V.Aged 43 Years vs Nil
2021 Latest Caselaw 6792 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                  &

          THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

   FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

                        OP (FC).No.146 OF 2021


PETITIONERS:

      1        SETHI P.V.AGED 43 YEARS,
               S/O.PADMANABHAN, 'LAKSHMI NIVA', KIZHUNNA,
               THOTTADA, KANNUR-670 007, REP BY P.A.HOLDER AND
               BROTHER SAJAN.P.V., AGED 45 YEARS, S/O.
               PADMABANHAN,'SREEPADMAM', P.O.KIZHUNNA,
               THOTTADA, KANNUR

      2        SHANSA RAMESH
               AGED 31 YEARS
               D/O. RAMESH BABU, 'RAGAM', KUZHAKKUMBHAGAM,
               PINANRAYI P.O., THALASSERY, KANNUR-670741

               BY ADV. SRI.SATHEESHAN ALAKKADAN

RESPONDENT:

               NIL



     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26-02-
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(FC) No.146/2021
                                  -:2:-

                                                             "C.R."

                          JUDGMENT

Dated this the 26th day of February, 2021

Dr.Kauser Edappagath, J.

A joint petition filed by the estranged couple for divorce by

mutual consent u/s 13B of the Hindu Marriage Act, 1955 (for short

'HMA') before the Family Court, Thalasserry was not entertained

citing reason that the husband was represented through his

power of attorney holder.

2. The petitioners got married on 8/5/2011. A male child

was born to them in the year 2013. But, their marital bliss did not

last long. Marital dispute arose and the relationship strained

resulting in institution of various legal proceedings before the

Family Court and Magistrate Court from 2014 onwards. Later on

in 2020, at the instance of the well wishers, mediation took place

and the entire dispute was settled and an agreement was

executed by the petitioners on 11/1/2020. Having realised that

they cannot pull along any longer, the petitioners took a decision

to separate. As per the terms of the said agreement, the

petitioners decided, inter alia, to file a joint petition for divorce by OP(FC) No.146/2021

mutual consent before the Family Court. Accordingly, the

petitioners jointly filed a petition for divorce by mutual consent

u/s 13B of the HMA before the court below. At the time of the

institution of such Original Petition, the first petitioner/husband

was at abroad and because of Covid-19 pandemic restrictions, he

was not in a position to come back to India to present the

petition. Hence, the first petitioner was represented by a duly

constituted power of attorney holder, who is none other than his

own brother. The Court below returned the Original petition as

per the order dated 7/12/2020, marked as Ext.P1, which reads as

follows:-

"Petition cannot be filed through P.A.H. u/s 13B of the HM Act. Hence, returned".

3. The said order is under challenge in this Original

Petition filed under Art.227 of the Constitution of India.

4. Heard the counsel for the petitioners.

5. The short question that arises for determination is

whether a power of attorney holder can sign and file a joint

petition for divorce u/s 13B of HMA.

6. The learned counsel for the petitioners relying on S.20

of the HMA and Rule 5 of the Family Courts (Procedure) Rules, OP(FC) No.146/2021

1989, argued that every petition can be filed before the Family

Court, either by the petitioner or some other competent person in

the manner required by law for the verification of plaint and that

the Act does not prohibit entertaining petition through a power of

attorney holder. The counsel further submitted that the first

petitioner has been represented by his own brother/power of

attorney holder and as such, he is a competent person. The

learned counsel also relied on the decision of the Division Bench

of this Court in Kunhi Purayil Mukundan Naveen v. Anjalika

Dinesh [2011 (3) KHC 80] in support of his contention that a

petition for divorce can be presented before the Family Court

either personally or even through a power of attorney holder.

7. The power of attorney is an authority whereby "one is

set in the turne, stead or place of another" to act for him". In

Black's Law Dictionary, "power of attorney" is described as the

instrument by which a person is authorized to act as an agent of

the person granting it. The relation between the donor of the

power and the donee of the power is one of principal and agent

as recognised u/s 182 of the Indian Contract Act. The relation of

agency arises whenever one person called the agent has OP(FC) No.146/2021

authority to act on behalf of another called the principal and

consents so to act. The relationship has its genesis in a contract.

S.2 of the Power of Attorney Act, 1882 empowers the donee of a

power of attorney to do anything "in act with his own name and

signature" by the authority of the donor of the power. Once such

authority is granted, the said Act recognizes that everything done

by the donee "shall be as effectual in law as if it had been done

by the donee of the power in the name and with a signature of

the donor thereof". The above provision is statutory recognition

of the maxim "qui facit per alium facit per se"which means that

he who does anything by another does it by himself. In other

words, the general rule is that whatever a person may do himself,

he may authorize another to do for him.

8. Law is well settled that a power of attorney holder can

appear, plead and act on behalf of a party in all proceedings in

any Court of civil jurisdiction. Relevant statutory provisions are

Order VI Rule 14, Order III Rules 1 and 2 of the Code of Civil

Procedure, 1908 (for short 'CPC') and Rules 22 and 23 of the

Kerala Civil Rules of Practice,1971.

Order VI Rule 14 of CPC reads thus:

OP(FC) No.146/2021

"14. Pleading to be signed.--Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf."

Order III Rules 1 and 2 of CPC reads thus:

"1. Appearances, etc., may be in person, by recognized agent or by pleader.--Any appearance, application or act in or to any Court, required or authorized 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 recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognized agents - The recognized agents of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing 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 authorized to make OP(FC) No.146/2021

and do such appearances, applications and acts." Rules 22 and 23 of the Civil Rules of Practice reads thus:-

"22. Party appearing by agent. (1) When a party appears by an agent other than a pleader, the agent shall, before making any appearance or application, or doing any act before the Court, file in Court the power of attorney, or other written authority thereunto authorising him or a properly authenticated copy thereof: or, in the case of an agent carrying on a trade or business on behalf of a party without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorised to make such appearance, or application or do such act. (2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and until the said permission is granted, no appearance, application or act of the agent shall be recognised by the Court.

23. Signing or verification by agent - If any proceeding which under any provision of law or these rules, is required to be signed or verified by a party, is signed or verified by any other person on his behalf, a written authority in this behalf signed by the party, except in the case of persons under disability, shall be filed in Court, with an affidavit by such person verifying the signature of the party, and stating the reasons for the inability of the party to sign or verify the proceeding."

9. Order VI of CPC deals with contents of pleadings and

Order VI Rule 14 of Order VI provides for signing of the pleadings. OP(FC) No.146/2021

It specifically provides that every pleading shall be signed by the

party and his pleader, if any, and where a party pleading is

unable to sign the pleading, it may be signed by any person duly

authorized by him to sign the same or to sue or defend on his

behalf. Rule 15 of Order VI deals with verification of pleadings

which says that the verification to a plaint must be either by a

party pleading or by some other person proved to the satisfaction

of the Court to be acquainted with the facts to which a person is

verifying. Thus, it can be seen from the conjoint reading of Rules

14 and 15 of Order VI that the pleading can be signed either by

the party or his pleader or by a duly authorized agent and the

pleadings can be verified by either the person pleading it or by

some other person who is acquainted with the facts of the case.

Further, by virtue of Order III Rule 1 of CPC, any appearance,

application or act in or to any Court, required or authorized by

law, to be made by a party in person is allowed to be done by his

recognized agent. This, however is subject to an exception where

any law expressly forbids this to be done. Going by sub-rule (2) of

Order III, a recognized agent would cover a person who is a power

of attorney holder specifically authorized to act on behalf of the OP(FC) No.146/2021

original party. Thus, an appearance, application or act in any

Court or to any Court can be effectively made or done by a party

either he himself or by his power of attorney holder.

10. Order III 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 Court are concerned, the right or

representation by the pleader does not exist. The operation of

Order III Rule 1 is subject to any law for the time being in force. In

addition to the said exclusion in the case, S.13 of the Act

prohibits operation of Order III Rule 1 to the extent that the case

be represented by the legal practitioner. The recognized agent

appointed under Order III Rule 2 stands on a different footing

from pleader. However, recognized agent cannot be a legal

practitioner. The embargo on the appearance of legal

practitioners cannot be extended to recognized agent. There is no

prohibition in the Act or Rules for a petition being filed by an

authorized agent who is not legal practitioner.

11. Rule 22 of Kerala Civil Rules of Practice mandates that

when a party appears by an agent other than a pleader, the

agent shall file in Court the power of attorney, or other written OP(FC) No.146/2021

authority authorizing him or a properly authenticated copy

thereof and the Judge may thereupon record in writing that an

agent is permitted to appear and act on behalf of the party. Rule

23 of Kerala Civil Rules of Practice also mandate that for signing

or verification of pleadings by an agent, a written authority has to

be produced before the Court. The Single Bench of this Court in

Narayanan Nair v. John Kurien (1988 (1) KLT 673) has held

that even oral authorization would be sufficient to constitute due

authorization under Order VI Rule 14 of CPC r/w Rule 23 of the

Kerala Civil Rules of Practice.

12. The Family Courts Act, 1984 (for short 'the Act') which

was enacted to have a mechanism for settlement of family

disputes without formal trappings and with the intention to

advance the cause of matrimonial happiness and harmony

confers jurisdiction to the Family Court to try suit or proceeding

between the parties to a marriage claiming dissolution of

marriage by mutual consent u/s 13B of HMA. S.10 of the Act

provides that the provisions of CPC shall apply to all suits or

proceedings before the Family Court. It is also stated that Family

Court shall be deemed to be a civil Court for the purpose of OP(FC) No.146/2021

provisions of the CPC and shall have all the powers of such

courts. S.21 of the HMA also provides that proceedings under the

Act shall be regulated by CPC. S.141 of CPC provides that the

procedure provided in the Code in regard to suits shall be

followed, as far as it can be made applicable, in all proceedings in

any Court of civil jurisdiction. Thus, it is clear that the Family

Court is bound to follow CPC and is deemed to be a civil Court for

the purpose of the provisions of the Act and possesses the

powers of the Civil Court. Either the Family Court Act or the Rules

framed by the High Court of Kerala or the Rule framed by the

Government of Kerala u/s 23 of the Act do not prohibit in

presenting the petition before the Family Court through a power

of attorney holder. S.13B of the HMA does not contain any

provision abrogating the power of attorney holder under CPC and

therefore the procedure governing the proceedings filed under

Section 13B of the HMA would be governed by Order III as well as

Order VI of CPC. That apart, S.20(2) of HMA enables the Court to

receive petitions filed by the party either by the petitioner himself

or by some other competent person in the manner required by

law for the verification of the plaint or a petition. OP(FC) No.146/2021

13. The Single Bench of this Court in Puthiyapurayil

Abdul Salam v. P.P.Mariyumma and Others [2007 (1) KHC

156] has held that a power of attorney can represent the party

before a Family Court and it will not disable the court to pursue

efforts for settlement of the case. That was a case which arose

u/s 13 of the Family Courts Act. The husband filed a petition

represented by the power of attorney holder to set aside the ex

parte order passed against him and to prosecute the petition

through power of attorney holder. The Division Bench of this

Court in Kunhi Purayil Mukundan Naveen's case (supra) held

that it is open to the party to present the petition either

personally or even through a power of attorney holder before the

Family Court. That was a case filed u/s 13(1)(a) of the HMA for

divorce on the ground of cruelty. Again the Division Bench of this

Court in Jane Chakuprakal and Another v. Max George [2017

(1) KHC 796] took the view that there is no restriction for power

of attorney holder to file an application to set aside the ex parte

order or to file an application seeking leave of the Court for the

parties to appear through power of attorney holder before a

Family Court. In a suit filed before the Family Court for realisation OP(FC) No.146/2021

of value of jewellery and money, it was held by the Division

Bench of this Court [Suma R v. Rajan Pillai : 2007 (4) KLT 379]

that the defendant can appear through power of attorney holder.

The Punjab and Haryana High Court in Navdeep Kaur v.

Maninder Singh Ahluwalia (AIR 2010 P & H 90) has held that

the personal appearance of the parties at the time of

presentation of the petition for divorce by mutual consent is not

mandatory and the parties may be represented through duly

constituted power of attorney. Similar view was taken by the

Lucknow bench of Uttar Pradesh High Court in Kanwalijeet

Sachdev v. State of UP and Others [2016 (6) ALJ 589]. The

Hyderabad High Court in Dasam Vijay Rama Rao v. M.Sai Sri

(AIR 2015 Hyderabad 191) has held that power of attorney holder

can depose and also lead evidence on behalf of his principal

before the Family Court. The Madras High Court in Sudha

Ramalingam v. Registrar General, High Court of Judicature

at Madras and Another [2015 KHC 1680] has held that in a

petition for divorce by mutual consent, there is no legal

impediment for a power of attorney to appear on behalf of the

party. But, the party should make personal appearance before the OP(FC) No.146/2021

Court as and when so stipulated or directed by the Family Court.

The Bombay High Court in Harshada Bharat Deshmukh v.

Bharat Appasaheb Deshmukh (AIR 2018 Bombay 148) has

held that there is no legal impediment in filing a joint petition for

mutual consent u/s 13B of the HMA before a Family Court through

a power of attorney. The Delhi High Court in Raja Banerji v.Alka

Banerji (AIR 2019 Delhi 1) held that law permits parties to

appear and make statements through attorney before a Family

Court.

14. On analysis of the statutory provisions and precedents

discussed in detail above, there cannot be any dispute that

attorney of a party can appear in any Court of civil jurisdiction

including Family Court and do the act specified in the power of

attorney. The authorities have gone to the extent of observing

that an attorney is not incompetent witness and he can appear in

the Court and depose in the Court as a witness in respect of the

facts which are in his knowledge. The Apex Court in Janki

Vashdeo Bhojwani v. Indusind Bank Ltd (AIR 2005 SC 439)

has held that the word 'acts' employed in Order III Rules 1 and 2

of CPC confines only in respect of 'acts done by power of attorney OP(FC) No.146/2021

holder' in exercise of power granted by the instrument and it

would not include deposing in place of and instead of the

principal. It was also held that he cannot depose for the principal

in respect of a matter which only the principal can have the

personal knowledge and in respect of which the principal is

entitled to be cross-examined.

15. A perusal of the impugned order would show that no

reason has been stated by the Court below for returning the

original petition. What is stated is that joint petition for divorce

u/s 13B of the Act cannot be filed through power of attorney

holder. When two parties to a marriage come before a Family

Court and ask for dissolution of their marriage by mutual consent

u/s 13B of the HMA, the Court is required to adjourn the motion

moved by both parties for a period not earlier than 6 months as

per sub-section (2) of S.13B. Further, sub-section (2) requires

that the Court shall, on being satisfied, after hearing the parties

and after such enquiry as it thinks fit regard to the averments in

the petition are true, pass a decree of divorce declaring the

marriage to be dissolved with effect from the date of such

decree. Physical presence of both parties is generally insisted at OP(FC) No.146/2021

that time and it is necessary to verify the authority of the identity

of the parties to confirm their consent. This might have obviously

weighed the mind of the Court while returning the original

petition. Of course, at the time of such enquiry, if the Court feels,

the physical presence of the parties can be insisted. Merely

because the petition is one for divorce by mutual consent u/s 13B

of HMA, it does not mean that a party cannot institute a

proceedings through a duly constituted power of attorney holder

in as much as S.13B of HMA does not contain any provision

abrogating the power of power of attorney holder under Order III

Rules 1 and 2 and Order VI Rule 14 of CPC and S.20(2) of HMA

enables the Court to receive petitions filed by the party either by

the petitioner himself or by some other competent person in the

manner required by law for the verification of the plaint or a

petition. That apart, the Family Court Act or the Rules framed by

the High Court of Kerala or the Rule framed by the Government of

Kerala u/s 23 of the Act do not prohibit the presentation of the

petition before the Family Court through a power of attorney

holder. Hence, no distinction can be taken in respect of petition

u/s 13B of HMA. For all these reasons, we hold that a power of OP(FC) No.146/2021

attorney holder can sign, file and prosecute a petition for divorce

by mutual consent u/s 13B of HMA before a Family Court.

16. It is true that in the enquiry which is to be conducted

by the Family Court u/s 13B of HMA, the answers and willingness

of the party is to be gathered directly from the party. The Court is

free to insist the personal appearance of the party at that stage

as contemplated in law. The advanced technology such as video

conferencing facility can also be made use of to conduct enquiry

contemplated u/s 13B of the HMA without insisting for physical

presence of the parties in a case where parties are unable to

appear before the Court personally. The Family Court has been

given ample power to modulate its procedure. The Supreme

Court of India in State of Maharashtra v. Dr.Praful B.Desai

[(2003) 4 SCC 601) has held that the evidence of witnesses can

be made through video conferencing. The Apex Court in

Santhini v. Vijaya Venketesh (AIR 2017 SC 5745) has held that

in Family Court proceedings, video conferencing could be allowed

if both parties file consent memorandum for hearing of the case

through video conferencing. Petition u/s 13B of HMA is filed

jointly by both parties to the marriage with mutual consent. OP(FC) No.146/2021

Hence, the enquiry contemplated u/s 13B can be conducted using

video conferencing facility. On interacting with the parties via

video conferencing, if the Family Court feels that personal/

physical appearance of the party is necessary, it would be

appropriate for the court at that juncture to direct the party to be

physically present before the Court.

17. Coming to the facts of the case, the original petition

was filed before the Family Court along with a petition to receive

the power of attorney executed by the first petitioner in favour of

his brother under Rule 22 of Civil Rules of Practice. The original

petition was verified and signed by the power of attorney holder

of the first petitioner. The petitioner specifically pleaded in

paragraph 8 of the original petition that the enquiry u/s 13B(2) of

HMA can be conducted either through the video conference or

the personal appearance of the first petitioner before the Family

Court if so insisted. The first petitioner undertakes to co-operate

with the Family Court by his physical presence or through the

video conferencing. For all these reasons, we hold that the

refusal by the Court below to entertain the application to permit

the 1st petitioner to be represented by his brother as power of OP(FC) No.146/2021

attorney holder cannot be sustained. The Court below has

committed illegality in refusing to entertain the application to

allow the first petitioner to be represented by a power of attorney

holder on the ground that it is a joint petition for divorce by

mutual consent u/s 13B of the Act.

For the reasons stated above, we allow the original petition.

We direct the Family Court, Thalassery to receive Ext.P1 Original

Petition on file and dispose of it in accordance with law. We make

it clear that permitting the petitioners to institute proceedings by

a power of attorney holder will not detract from the power of the

court to insist on personal appearance or appearance through

video conferencing at any subsequent stage as contemplated in

law.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                         Dr.KAUSER EDAPPAGATH

Rp                                              JUDGE
 OP(FC) No.146/2021





                         APPENDIX
PETITIONERS' EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE RETURNED OP FILED BY
                     THE PETITIONERS WITH THE ORDER DATED
                     07.12.2020  OF   THE   FAMILY  COURT,
                     THALASSERY