Puthiyapurayil Abdul Salam vs P.P. Mariyumma and Others

K.A. Abdul Gafoor, J.—A petition was filed before the Family Court by the husband represented by his father, the power of attorney holder to set aside the ex parte order and to prosecute the petition representing through the power of attorney holder. The reason for dismissal of the petition is that "the petitioner is not at all having any locus standi to file either an application to permit him to represent the counter petitioner on the strength of a power of attorney or to pray for setting aside the ex parte order passed against the counter-petitioner in M.C. No. 443/03". When the party was away abroad, necessarily his duly constituted power of attorney holder can represent him for the purpose of prosecuting the case and to seek to set aside the ex parte order. Those should have to be decided on merit. In case, the presence of the husband is required for counselling or conciliation, necessarily at that time his presence can be insisted.

Permission to be represented in a suit by a duly constituted power of attorney does not disable in any manner, the Court to pursue efforts for settlement of a case as provided in Section 9 of the Family Courts Act, 1984. Of course, in terms of Section 13 no party shall be entitled as of right to be represented by a legal practitioner. Right to be represented by a legal practitioner in a case and to be represented to prosecute or defend a case through a power of attorney holder when the incumbent is out of India, are different. The respondent has no case that the father of her husband, the duly constituted power of attorney, is a legal practitioner. In case the petitioner/husband does not appear in person for settlement talk or conciliation, upon direction by the Family Court or fails to attend counselling on the dates notified by the counsellor, nothing prevents the court to take action against him on such default as provided in Rule 25 of the Family Courts (Kerala) Rules, 1989.

On the aforesaid reason, Ext. P2 is set aside and the Family Court is directed to consider both the applications on merit afresh on payment of Rs. 25,000/- towards the maintenance accrued to the respondent within a period of one month from today. The writ petition is disposed of accordingly.