S.M. Syed Amina Beevi vs Thaika Sahib Alim and Another

Raju, J.—The petitioner in the above revision filed under Article 227 of the Constitution of India, which is yet to be numbered but had to be

posted for orders regarding the maintainability, challenges the return of the papers said to have been made by an endorsement of the Sherishtadar

of Family Court, Madras date 15.6.1993. The Registry of this Court has entertained a doubt regarding the maintainability of this revision and hence

this revision was directed by me to be posted for orders.

Learned Counsel for the petitioner initially contended that the second respondent in the above revision ,viz., the Sherishtadar of Family Court,

Madras is not the competent authority to pass orders even for returning the papers and that if at all it is for the Presiding Officer of the Family

Court to pass such orders in this regard. At this stage, this Court pointed out to the learned Counsel for the petitioner that if the objection is only

that the Sheristadar has passed the orders, the papers filed into this Court can be taken back and re-presented before the Family Court, so that a

direction can be issued to the Presiding Officer himself to deal with the matter and pass appropriate orders. Learned Counsel for the petitioner

would at this stage submit that even the re-presentation, the petitioner is not prepared to do it in person before the Family Court, that he would like

to have the same either re-presented through Counsel or sent by registered post and that therefore, it becomes necessary for this Court to decide

as o matter of principle, the vital question raised in the matter as to whether an applicant before a Family Court can send his application by

registered post and if so sent, the Family Court is obliged to entertain the same and pass orders on such application.

A few facts confined to the issue in question alone may be referred to without going into the details of the merits of the claim. The petitioner

claims to be the wife of Thaika Sahib and the petitioner as well as the respondents are Muslims governed by the Muslim Personal Law and the

Dissolution of Muslim Marriage Act, 1939. The petitioner also claims to have married the respondent in the year 1954 at Keelakarai in

Ramanathapuram District, according to Muslim Law. Both the petitioner and the respondent are stated (o be residing at Madras. The petitioner

would allege ill-treatment and claim to have borne seven children, of which four are sons and three are daughters for the respondents and the last

son was said to be 23 years old. It is also claimed that the respondent had been paying every month a specific amount of Rs. 10,000/- towards her

day to day expenses, that the some has been stopped for the past on year and that all that has been done by the respondent made the life of the

petitioner miserable. Consequently, the petitioner prays for a decree (a) for dissolving the marriage performed as per the Muslim Law in the year

1954 between the petitioner and the respondent and (b) for passing appropriate orders regarding the maintenance and alimony payable by the

respondent to the petitioner and for costs.

The above petition was admittedly sent by registered post and it is only the said original petition in the form of an ''O.P.'' that has been returned

with the endorsement as hereunder :-

Returned, Received by post. To be presented in person by the concerned party"".

At the time of hearing Mr. Yamunan, learned Counsel for the petitioner contended that though none of the provisions of the Act or the Rules

made thereunder specifically provide the mode of presentation, in view of the provisions contained in the Code of Civil Procedure, 1908, the

papers can be presented by a recognised agent or party in Court and that at any rate, in view of the fact that the petitioner belongs to a category of

''exempted persons'' in respect of personal appearance before Courts the right of the petitioner to present the papers either through a recognised

agent or by registered post should be considered and consequently, a permission to that extent has got to be granted if necessary and that

therefore the manner in which the papers of the petitioner were returned cannot be said to be either appropriate or valid in law.

Learned Counsel for the petitioner invited my attention to some of the relevant provisions of the Act as well as the CPC to which immediate

reference may be made hereinafter. Section 10 of the Family Courts Act, 1984 (Central Act 66 of 1984) which pertains to the procedure to be

observed by the Family Court lays down that the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the

suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973, before a Family Court, and for the

purposes of the said provisions of the Code, the Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. So

far as the applications under Chapter IX of the Code of Criminal Procedure, 1973 is concerned, they have been made applicable to proceedings

initiated thereunder. Sub-section (3) of Section 10 of the Act lays down that nothing in Sub-section (1) or Sub-section (2) shall prevent a Family

Court from laying down its own procedure with a view to ""arrive at a settlement"" in respect of the subject matter of the suit or proceedings or at

the truth of the facts alleged by the one party and denied by the other. Section 13 of the very Act provides that notwithstanding anything contained

any law no party to a suit or proceeding before a Family Court shall be entitled as of right to be represented by a legal practitioner and the proviso

to the said provision indicates that if the Family Court considers it necessary in the interest of justice it may seek the assistance of a legal expert as

amicus curiae. Even at this stage it may be noticed that the prohibition in respect of the appearance of a legal practitioner is total and complete and

the proviso only enables to have the assistance of a legal expert as amicus curiae to assist the Court apparently for deciding the claim of the parties

on merits by the Family Court, Section 20 of the Act lays down that the provisions of the Act shall have effect notwithstanding anything inconsistent

therewith contained in any other law for the time being in force.

Section 21 of the Act empowers the High Court, by means of a notification in the Official Gazettee to make such Rules as it may deem

necessary for carrying out the purposes of the Act and also with particular reference relating to the subjects illustrated in Sub-section (2) of Section

Section 22 of the Act provides that the Central Government may make Rules with the concurrence of the Chief Justice of India in respect of

qualifications for appointment of a judge u/s 4(3)(c) of the Act. So far as the State Government is concerned Section 23 of the Act enables the

State Government after consultation with the High Court by notification for carrying out the purposes of the Act and with purpose of the Act and

with particular reference to the various aspects illustrated in Sub-section (i) of Section 23. The Rules framed by the High Court in R.O.C. No.

2850/88 (F) known as ''The Family Courts (Tamil Nadu) Rules, 1987 stipulate the working days in a week and the working hours and the places

of sitting. A further provision has also been made that the Family Court shall made every effort to arrive at a settlement between the parties by

conciliation and reconciliation methods and for that purpose the Family Courts may seek the assistance of Psychiatrists, Sociologists and local

organisations also in arriving at a settlement between the parties. The Rules framed by the State Government in addition to the laying down the

conditions of service of the Presiding Officers also provide for preparation of a list of persons and agencies in the field of Social Welfare,

nomination of persons as counsellors and nominating substitutes and the fees of such counsellors and the staff relating to the Family Court. The fee

for the legal practitioner appointed as amicus curiae has also been prescribed. The provisions of the Family Courts Act referred to supra and the

Rules made there-under would indicate that there is no specific stipulations as such, in any of those provisions providing for the manner of filing or

presentation of papers before the Family Court.

Learned Counsel for the petitioner next invited my attention to some of the provisions of the CPC on the ground that in the absence of any

specific provisions under the Family Courts Act or the Rules made thereunder of the CPC shall have to be applied. Order 1, Rule 1 of the Code

provides that any appearance, application or act in or to any Court required or authorised 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

recognised agent, or by a pleader, appearing applying or acting, as the case may be, on his behalf. Apart from the prohibition contained in Section

13 of the Family Courts Act, the provision contained in Order 3, Rule 3 of the CPC itself gets excluded on its own operation, where a provision is

expressly made otherwise by any law for the time being in force. The prohibition contained in Section 13 of the Family Courts Act, in my view,

therefore has the effect of excluding the applicability of Order 3, Rule 1 of the CPC to the proceedings under the Family Courts Act to the extent

of a provision made to the contrary. The restriction is only with reference to a legal practitioner and not the other categories of recognised agents,

viz., persons holding powers of attorney, authorising them to make such appearance, application or the acts on behalf of such parties. But, such

recognised agents cannot be a legal practitioner since what is specifically prohibited cannot be allowed to be subterfuge by allowing them to be

indicated as recognised agents.

Learned Counsel further invited my attention to Section 132 of CPC which lays down that women who according to the customs and manners

of the country, ought not to be compelled to appear in public, shall be exempt from personal appearance in Court. Learned Counsel also referred

to Order 3 Rule 3 to impress upon the position that wherever the CPC desired personal presentation it has been specifically provided in that an

application for seeking leave of the Court to sue as an indigent person has to be presented in person unless such a person is exempted from

appearing in Court. Thereafter Order 4, Rule 1 of the CPC has also been referred to show that every suit shall be instituted by presenting a plaint

to the Court or such officer as it appoints in this behalf. The provisions of Order 4, Rules 2 and 3 and the Rules of the High Court on the appellate

side have been referred, to impress upon the position that every appeal, petition or every proceeding shall be presented by the party in person or

on his behalf by a practitioner duly appointed and unless the Court otherwise orders no document required to be presented or filed into Court

which is sent by post or by telegram shall be received or filed into Court.

In the light of the above provisions, Mr. Yamunan, learned Counsel for the petitioner though fairly concedes the position that he cannot assert a

right in his client that the proceedings can be initiated by sending them by registered post, the right of the petitioner to present or file the same into a

Family Court through an authorised or a recognised agent, in view of the restricted prohibition in respect of a legal practitioner cannot be denied.

I have carefully considered the submissions of the learned Counsel for the petitioner made as referred to supra. In my view, whenever any

proceedings have to be initiated or filed into a Court it has to be necessarily instituted either in person or by a recognised agent or by a legal

practitioner whether there is no prohibition for a legal practitioner for appearing in the matter. It cannot be claimed that in the absence of any

prohibition any party can send such proceedings by means of a registered post addressed to the Court concerned. I am unable to countenance

such a tall or wild claim like the one made in this regard and the learned Counsel for the petitioner has not substantiated his claim in this regard by

means of any acceptable Rule or recognised practice in any Court, The proper way of looking at the matter is that unless in any particular category

of case the procedure of the Court specifically enables or empowers the parties concerned, as in the case of the proceedings under the Industrial

Disputes Act, to file or institute proceedings by sending them by registered post also it shall into be open to any party to claim such a privilege or

right. Consequently, I am of the view that the petitioner has absolutely no right whatsoever on any principle of law or practice recognized in Courts

to claim a right to send the petition in question to the Family Court by registered post and therefore, the return of the papers cannot be said to be

patently illegal or unwarranted or uncalled for.

The next question that requires to be considered is as the other mode or manner of presentation, if any, than the one by sending them by

registered post or by filing them in person by the very party concerned. I have already expressed the view that the prohibition contained in Section

13 of the Family Courts Act is only vis-a-vis a legal practitioner and not in respect of a recognised agent permissible under the provisions of Order

3 Rule 1 of the Code of Civil Procedure, which is rendered applicable by the provisions contained in Section 10 of the Family Court Act to the

extent to which there is no provision otherwise contained to the contra. The petitioner in my view therefore is entitled to have the papers filed or

presented before the Family Court through a recognised agent in terms of Order 3, Rule 1, and such a recognised agent at any rate cannot be a

legal practitioner. This in my view, has got to be limited or confined to the stage of presentation or tiling of the matters only. The petitioner cannot

take advantage of the other provisions contained in Order 3, Rule 1 or Order 4, Rule 1 or Section 132 of the Code of Civil Procedure, once and

for all, to avoid personal appearance before the Family Court and claim to have the adjudication through such a recognised agent, on account of

the peculiar provisions of law governing the adjudication in the Family Courts. The provision of Section 9 of the Family Courts Act looms large and

acquires significance for consideration in this regard. Section 9 of the Act specifically provides that in every suit or proceedings, endeavour shall be

made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and

persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceedings and the endeavour of efforts shall be in

accordance with the Rules. Personal appearance or presence of the party concerned becomes therefore inevitable and necessary, at any rate from

the stage of hearing after the appearance of the other side to the proceedings, and the efforts contemplated to be made by the Family Court under

the statute cannot be effectively carried out through a recognised or authorised agent of the party and having regard to the sensitive nature,

personal feelings and behavioural attitudes to be assessed by the Court in carrying out the mandate contained in Section 9 of the Family Courts

Act. Personal appearance, though, not initially required, becomes absolutely necessary after the appearance of the respondent to the proceedings-

I am of the view that the petitioner shall be at liberty to present the application through a recognised or an authorised agent other than the legal

practitioner as contemplated under Order 3, Rule 1 of the Code of Civil Procedure, and the Family Court at the same time is entitled to insist upon

the personal appearance of the petitioner or any party concerned for the matter for all subsequent or further stages of the hearing, after the

appearance of the respondent or from the stage of hearing even when the respondent, fails to appear or remains ex parte to the proceedings.

Subject to the above declaration of the position of law regarding the procedure to be followed and the duties and obligations of the petitioner to

make personal appearance in Court before the family Court, as and when so stipulated or directed or indicated by that Court the petitioner shall

have the right to present the papers through a recognised agent other than a legal practitioner, as contemplated under Order 3, Rule 1 of the Code

of Civil Procedure.

In the light of the above order, office shall return the original papers pertaining to the original petition enclosed with the revision filed in this

Court to the learned Counsel for the petitioner so as to enable the petitioner to present the same before the Family Court for further course of

action. As indicated supra office is directed to forward a copy of this order separately to the Presiding Officer, Family Court. Learned Counsel for

the petitioner shall also present the papers after complying with the procedure indicated above with a xerox copy of the order annexed to the

papers to be re-presented in the Family Court.