Madras High Court
Unknown vs Xxxxxx
C.R.P.(PD).No.4073 & 4227 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: Pronounced on:
25.10.2024 31.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).Nos.4073 & 4227 of 2024
C.R.P.(PD).No.4073 of 2024:
xxxxxx .. Petitioner
Vs.
xxxxxx .. Respondent
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to number the unnumbered I.A. Of 2023
in F.C.O.P.No.716 of 2024 pending on the file of the Principal Family Court,
Chennai and to issue a positive direction and also to permit the petitioner's
power agent to apply and obtain the certified copy in F.C.O.P.No.716 of 2024
and number the same.
For Petitioner : Mr.K.Subbu Ranga Bharathi
C.R.P.(PD).No.4227 of 2024:
Vijaya Vaishnavi Sriram .. Petitioner
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Vs.
Sriram Sridhar .. Respondent
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the fair and decretal order dated
19.07.2024 in H.M.O.P.No.498 of 2024 passed by the Principal Family Court
Judge, Chennai incharge of VII Additional Family Court by allowing this
civil revision petition.
For Petitioner : Ms.Rohini Ravikumar
(In both cases):
Amicus Curiae : Mr.M.K.Kabir
Senior Counsel
COMMON ORDER
C.R.P.(PD).No.4073 of 2024 has been filed at the instance of the
husband.
2.The petitioner married the respondent on 17.06.2022 at
Rajahmundry, Andhra Pradesh. Soon thereafter, they developed serious
disputes and differences. There was no cohabitation between the parties
atleast, from 25.08.2022. Hence, their friends and relatives tried to resolve the
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matter. Unfortunately, it ended in vain. Therefore, the couple decided to put
an end to the matrimony. Hence, they filed F.C.O.P.No.716 of 2024 on
21.09.2023 invoking Section 13B of the Hindu Marriage Act. Even at the
time of filing the petition, the petitioners were residing in United States of
America.
3.On account of the fact that the husband had applied for permanent
resident status in United States of America and since his application was
under scrutiny, he could not return to the country. Pointing out that in case he
comes to India, it would not be possible for him to re-enter the United States
of America and such a situation would affect him personally and
professionally, he appointed his father to act as his power agent. The power
enabled his father not only to present a petition for divorce by mutual
consent, but also to appear and represent him before the Court. In addition,
the deed authorized the agent to file interlocutory applications, to apply and
receive order copies and other case related papers. Therefore, the husband
filed a petition to permit his father to act as his power agent in the said
proceedings.
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4.This petition was accompanied by a notarized deed of power of
attorney and an affidavit filed by the agent viz., father of the petitioner. The
father not only accepted to act as a power of attorney, but was also willing to
identify his son during his appearance via video conferencing before the
Court.
5.An application was filed seeking the permission to appear through
video conferencing and a petition was also filed under Section 13 of the
Family Courts Act read with Rule 41 of the Family Courts Rules seeking the
representation of the petitioner through a counsel.
6.Originally when the 13B petition was filed, the same was returned.
Therefore, a revision was preferred to this Court in C.R.P.(PD).No.4804 of
2023 seeking a direction to receive the 13B petition. The reason for return
was that the learned Principal Judge, Family Court directed the presentation
of the petition by the petitioners themselves. This Court set aside the
direction of the Principal Judge, Family Court at Chennai and directed the
Trial Court to number the 13B petition.
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7.Subsequently, the petition was numbered as F.C.O.P.No.716 of 2024.
Though the 13B petition was numbered, the Court did not number the power
of attorney petition. Hence, this revision has been presented before this Court
seeking for a direction to number the power of attorney petition and also to
permit the power agent to apply and obtain certified copies of the order in
F.C.O.P.No.716 of 2024.
8.C.R.P.(PD).No.4227 of 2024 also arises from the Family Court at
Chennai. The petitioner is the wife and the respondent is the husband. The
petitioner – wife is residing in the State of Michigan in the United States of
America. She entered into matrimony with the respondent on 20.01.2019 at
Chennai. The parties were married as per the Hindu rites and customs.
9.Due to disputes and differences, the parties separated. Pleading that
she had been treated with cruelty, while residing at the matrimonial home, the
civil revision petitioner presented a petition for divorce invoking Section
13(1)(ia) of the Hindu Marriage Act, 1955. The petition was presented
personally by the civil revision petitioner. It was numbered as
H.M.O.P.No.498 of 2024.
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10.The case was listed for hearing on 25.03.2024. As the summons had
not yet been served on the respondent, it was adjourned to 17.05.2024. On
that day, the respondent-husband entered appearance and collected the
papers. The matter then stood adjourned to 26.06.2024. In the meantime, the
civil revision petitioner had left for United States of America.
11.On 26.06.2024, as there was no Presiding Officer to hear the matter,
the matter was adjourned to 19.07.2024. On 19.07.2024, the civil revision
petitioner appeared through hybrid mode. Her assisting counsel was present
physically before the Family Court. Though the petitioner was permitted to
join via virtual mode, she was not permitted from the virtual lobby into the
virtual Court, when the matter was called. Consequently, the learned Trial
Judge dismissed the petition for non-prosecution.
12.Pleading that she is not in a position to travel to India for every date
of hearing and the fact that technology has improved to the extent of
permitting the Courts to function virtually, she has moved this revision
seeking to set aside the order of dismissal passed by the Family Court on
19.07.2024. A perusal of the order passed by the Court on 19.07.2024 shows
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the following endorsement:
“Respondent present. Petitioner absent. Petitioner
not turned up from the date of first hearing. Hence,
this petition is dismissed as default.”
13.I heard Mr.K.Subbu Ranga Bharathi for civil revision petitioner in
C.R.P.(PD).No.4073 of 2024 and Ms.Rohini Ravikumar for the civil revision
petitioner in C.R.P.(PD).No.4227 of 2024.
14.Both pleaded that the procedure followed by the Family Court is
causing anguish to the litigants. Ms.Rohini Ravikumar points out, on account
of the fact that the Family Court insists on the presence of the parties for
every hearing and for presentation of the petition in person, it is becoming
difficult for a party who is abroad or elsewhere in the country to prosecute a
petition for divorce before the Family Court.
15.Several revisions have come up raising more or less the same issues,
the pleas being the Family Court does not permit the appearance of lawyers.
Instances of powers of attorney, not being permitted to appear, have also been
noticed. The counsel pleaded that even for filing of copy applications, the
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Court is insisting on the physical presence of the parties. It was pointed out
that even in the contested proceedings, where matters are referred to
mediation, where the parties arrive at a settlement before the Mediator or
Counsellor and agree to file a 13B petition, the Court insists on referring the
matter again to mediation when the 13B petition is filed pursuant to the
compromise.
16.Noticing that this Court is hearing the procedural wrangles that are
being faced by the parties before the Family Court, several members of the
Family Court Bar were present and addressed the Court. They are as follows:-
(i)Ms.Rohini Ravikumar pleaded that the presence of Advocates
assisting the parties is not noted by the Court. She pleads that when an
application is filed for prosecuting the petition through a power agent, the
proceedings are delayed by the Court by ordering notice to the other side.
When a copy application is filed by a counsel, who is assisting the parties
during the course of proceedings, the same is returned by the Registry stating
that the parties would have to be appear in person. She pleads that in the light
of the explosive expansion of the technology, the Family Court should permit
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appearance of parties through Video Conferencing. She adds in order to avoid
any impersonation, the parties may be called upon to produce identity card
like the passport or PAN card, driving license, Aadhar card or such other
governmental identification certificates. She states that on account of the
insistence of the Family Court that the parties have to appear in person, not
less than 800 to 1500 entry slips are issued every day. This leads to over-
crowding of the Courts. Finally, she pleaded that even for payment of batta
“process”, filing of counter, affidavit of service or for complying with the
returns/objections, the Family Court insists on appearance of the parties.
(ii)Ms.B.Poongkhulali submitted that the Family Court can insist on
appearance of the parties at the time of presentation, mediation, counselling
and for recording of evidence. Referring to Section 13 of the Family Courts
Act and Rule 41 of the Family Courts Rules framed by this Court, she urges
that Advocates are not excluded as a whole from the Family Court
proceedings, but are only excluded under certain circumstances. She urges
that once a counsel is permitted to appear in terms of Section 13 of the
Family Courts Act, he or she should be permitted to receive the counter,
instead, of insisting on appearance of the parties. She states the Madras High
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Court has framed Video Conferencing Rules and therefore, the said Rules
must be enforced by the Family Court and the parties must be permitted to
appear either physically or through video conferencing. She pleads that where
parties are abroad, evidence can be recorded by the Court and the deposition
can be sent by E-mail to the parties to be signed and sent back to the Court.
Finally, she argues that in case of any disputes as regards the evidence so
recorded, the Court can record the virtual tendering of evidence and keep the
evidence so recorded in the bundle. She states if this mode of recording is
done, no party can plead that the evidence that has been recorded is not what
she / he had deposed in the Court. She adds that there can be a direction to the
parties to supply the recording devices so that it obviates the Court from
incurring the expenditure in purchasing the devices.
(iii)Mr.Rahul Jagannathan adopted the pleas of both the previous
counsel. He adds the Family Court does not give a copy of unmarked
documents. He expresses the difficulty with respect to implementation of the
Video Conferencing Rules pointing out that there are no co-ordinators at the
Court site in the Family Court. He refers to Rule 7 of the Video Conferencing
Rules and pleads that the cost for providing the recoding device can be
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incurred by the party. He states that the Video Conferencing Rules are not
being implemented before the Family Court.
(iv)Ms.Chethana in addition urged that the interlocutory applications
should be numbered before sending the parties for mediation.
(v)Ms.Ajeetha, learned counsel circulated her submissions wherein she
urged that the Court must permit Advocates across the board to appear at all
stages of the proceeding before the Family Courts viz., from presentation of
plaint to filing of copy application. She also pleaded that a time limit must be
fixed by the Court for disposal of the cases.
17.Considering the several issues that have arisen before this Court, I
requested Mr.M.K.Kabir, Senior Advocate of this Court to assist the Court in
coming up with certain guidelines to enable the Family Courts to better
perform the onerous duties imposed on the Presiding Officers of the Family
Court and at the same time ensure that procedural wrangles do not prevent
access to justice.
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18.Mr.M.K.Kabir, invited my attention to the judgment passed by
Hon’ble MR.JUSTICE M.NIRMAL KUMAR in G. Shrilakshmi Vs
Anirudh Kumar, [C.R.P. Nos. 1994 & 89 of 2024 dated 18.10.2024] and
pleaded that the procedure evolved by the learned Judge, in filing of mutual
consent petitions under Section 13B of the Hindu Marriage Act, should be
extended to contested petitions filed under several matrimonial enactments
also. He states that presentation of petitions before the Family Court should
not be confined only to party in person, but should be extended even for
petitioners represented through their duly authenticated power agents. He
pleads that the proceedings must be litigant friendly and litigant centric and
should not be one in which the litigants suffer on account of filing of
petitions before the Family Court.
19.He states that the parties in person face difficulty in numbering the
petitions. He urges that a Family Court should insist on appearance of parties
only during the counselling, mediation or recording of evidence. For other
hearings, the appearance of the parties could be dispensed with. Referring me
to Order III Rule 2 of the Civil Procedure Code, he argues that such petitions
should be ordered immediately instead of keeping the petitions pending.
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20.He points out that lawyers are not being taken into confidence and
that the biggest sufferers on account of this procedure are female litigants. He
states that when a petition for mutual consent is filed, the Courts insist on the
withdrawal of any petition previously presented as a condition precedent to
entertain the mutual consent petition. He states that it is not impossible that
after the petitions are withdrawn and the mutual consent petitions are taken
on file, one of the parties may recant from the mutual consent petition and
thereby force the other litigant to start the game all over again.
21.The learned counsel for the parties relied upon the Civil Procedure
Code, 1908, Family Courts Act, 1984 and Family Courts (Procedure) Rules,
1996, to plead that legal representation should be permitted across the board
by the Family Court. The learned counsel also referred to the Madras High
Court Video Conferencing Rules, 2020, to urge that the Family Court should
be directed to permit the parties to appear through video conferencing. They
also invited my attention to the following judgments:-
(i)R.R.Pauvya Vs. Kanagavel, [(2014) 5 CTC 177];
(ii)Sudha Ramalingam Vs. Registrar General, [(2015) 1
Mad LJ 540];
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(iii)S.Annapoorni Vs. K.Vijay, [2022 SCC OnLine Mad
4367];
(iv)G.Shrilakshmi Vs. Anirudh Ramkumar,
[C.R.P.Nos.1994 & 89 of 2024 dated
18.10.2024];
(v)Dr.Senthil Kumar Elangovan Vs. Dr.Gnanakalyani,
[C.R.P.(PD).No.2621 of 2024, dated 12.07.2024];
(vi)C.P.Saji Vs. Union of India & Ors., [2011 SCC
OnLine Ker 4241];
(vii)Amardeep Singh Vs. Harveen Kaur, [(2017) 8 SCC
746];
(viii)Aditya Jagannath & another Vs. NIL,
[M.F.A.No.4453 of 2020 (FC)];
(ix)K.G.Suresh Vs. Union of India, [2021 SCC OnLine
Ker 1686];
(x)Selvaraj Vs. Koodankulam Nuclear Power Plant India
Limited, [2021 SCC OnLine Mad 2514];
(xi)Sanjay Singh Vs. Sukhpal Kaur, [2022 SCC OnLine
Del 1589];
(xii)PL.Murugan Vs. NIL, [C.R.P.(MD).No.1282 of
2022];
(xiii)Nancy Karthikeyan & another Vs. NIL,
[C.R.P.No.3677 of 2023 dated 13.10.2023];
(xiv)xxxxxx & another Vs. NIL, [C.R.P.(PD).No.4804 of
2023 dated 20.12.2023] and
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(xv)R.Gnana Sundari Vs. T.Yesuraj,
[C.R.P.(PD).No.3547 of 2024 dated 04.09.2024]
22.I have considered the submissions of the learned amicus curiae and
the counsel who appeared for the parties in the revision petition as well as the
submissions of the members of the Family Court Bar.
23.In order to properly assess and adjudicate the matters and
submissions made before this Court, the Court must first consider the history
of the Family Courts Act and the object that is sought to be achieved through
its enactment.
I.Enactment of the Family Courts Act, 1984 and establishment of
Family Courts in India
24.The exigency to establish a separate court governed by flexible and
humane procedures for dealing with family affairs was noted for the first time
by the Sixth Law Commission of India chaired by the then Chief Justice of
India, Dr. Justice P. B. Gajendragadkar. In its fifty-fourth report submitted on
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6th February 1973 relating to the Code of Civil Procedure 1908, the Law
Commission of India, while dealing with suits concerning the family, opined:
“32A.3. Litigation concerning or involving
affairs of the family therefore, requires a special
approach, in view of the serious emotional aspects
involved. For this sensitive area of personal
relationship, our ordinary judicial procedure is not
ideally suited. As Sir Garfield Barwick (then
Attorney-General of Australia) said in the debates
on the Matrnial Clauses Bill, 1959, the Judge not
unnaturally feels reticent about intruding into the
human relationship of those who come before him;
and the parties themselves so often enter into a
conspiracy of silence, where their innermost secrets
are concerned.
32A.4. It is now being increasing realised that-
(a) As far as possible, an integrated broad based
service to families in trouble, should become a part
of the court system;
(b) The existing court structure should be so
organized that one single court should deal with the
problem of preserving the families; and
(c) The conventional procedure dominated by the
adversary system may not be appropriate for
disputes concerning the family.”
25.The said opinion was reiterated and developed in the fifty-ninth
Law Commission report relating to Hindu Marriage Act, 1955 and Special
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Marriage Act, 1954. The Law Commission of India, recommended:
“1.21. … in dealing with disputes concerning the
family, the court ought to adopt a human approach
—an approach radically different from that
adopted in ordinary civil proceedings, and that the
court should make reasonable efforts at settlement
before commencement of the trial. In our view, it is
essential that such an approach should be adopted
in dealing with matrimonial disputes. We would
suggest that in the course, States should think of
establishing family courts, with presiding officers
who will be well qualified in law, no doubt, but who
will be trained to deal with such disputes in a
human way, and to such courts all disputes
concerning the family should be referred. What we
have said in our Report on the Code of Civil
Procedure should be treated as a part of the
present Report also. We are clear in our mind that
if these measures are adopted, they will go a long
way towards the proper resolution of such disputes.
We may add that selected judicial officers could be
posted in courts empowered under both the Acts,
and by dealing with disputes concerning the family,
they will be able to acquire experience and
knowledge which should not only be of value to
them but will ultimately benefit the society.”
26.These reports reveal that the basis for such a recommendation was
the fact that family cases usually involve sensitive issues entwined with
serious emotional aspects of the litigants. Mandating stringent adherence to
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the Civil Procedure Code would be adding more misery to the already
miserable life of the litigants. Therefore, a need was felt to establish a
separate court with its own procedure to deal with family cases in a more
humane and litigant-friendly manner.
27.The recommendations of the Law Commission were considered by
the Ministry of Law, Justice and Company Affairs. The Ministry through its
then Minister, Shri Jagannath Kaushal tabled the Family Courts Bill in the
Parliament in 1984 to give effect to the recommendations of the
Commission.After the Bill gained the acceptance of the Rajya Sabha, the bill
was tabled in Lok Sabha. At the time of tabling the Family Courts Bill in Lok
Sabha, Shri Kaushal explained the object of the Bill in the following words:
“That the Bill to provide for the establishment of
Family Courts with a view to promote conciliation
in, and secure speedy settlement of, disputes
relating to marriage and family affairs and for
matters connected therewith, as passed by Rajya
Sabha, be taken into consideration.”
…
“The House is fully aware that a good deal of time
of the civil courts is taken by small family disputes
which could be more expeditiously and at much
lesser cost be settled by Family Courts which
should adopt an entirely new approach by avoiding
rigid rules of procedure and evidence.”18/86
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“I very sincerely urge the House to consider the
keenness of the people and also that of the
Government for simplifying the legal procedures to
afford justice to the larger number of people in
lesser time and money.”
28.On the bill being passed by Lok Sabha, the Family Courts Act, 1984
[hereinafter the “Act” for the sake of brevity] came to be enacted on 14th
September 1984. It came into force in the State of Tamil Nadu on the very
same day. The preamble of the Act reads as follows:
“An Act to provide for the establishment of
Family Courts with a view to promote conciliation
in, and secure speedy settlement of, disputes
relating to marriage and family affairs and for
matters connected therewith.”
29.The Act, therefore, was enacted with the object of establishing
Family Courts whose approach would be considerate of the physiological and
psychological suffering of the litigants and who would strive to reduce the
time and money involved in such cases, without being bound by the
stringency of the laws of procedure and evidence.
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30.Family Courts are established under Section 3 of the Act. It is to be
noted that this provision makes it mandatory for the State Government to set
up a Family Court in
“every area in the State comprising of city or town
whose population exceeds one million”.
31.Further, Section 7 of the Act lays down the subject-matter
jurisdiction of the Family Courts. According to the Explanation appended to
Section 7, apart from suits relating to nullity, restitution of conjugal rights
and dissolution of marriage, the jurisdiction of the Family Courts extends to
deciding suits relating to:
a. declaration as to the validity of a marriage;
b. property of the parties to the marriage;
c. declaration as to the legitimacy of any person;
d. maintenance;
e. guardianship of the person or the custody of any minor;
f. order or injunction in circumstance arising out of a marital
relationshipFurther, the Courts also have jurisdiction to adjudicate matters falling
under Chapter IX of the Code of Criminal Procedure, 1973.
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32.The Family Courts being vested with an extensive subject-matter
and territorial jurisdiction, it becomes the duty of this Court to review the
working and the procedure adopted by the Family Courts to ensure that they
fulfill the object for which they were established.
II.Institution of proceedings and serving of summons
A. Institution of proceedings
33.The proceedings before the Family Courts begins with the
presentation of a plaint or a petition, as the case may be. The Madras High
Court exercising its powers under Section 21 of the Act read with Section
122 of the Code of Civil Procedure, 1908 framed the Family Courts
(Procedure) Rules, 1996 [hereinafter “ Family Courts Rules” for the sake of
brevity]. Rule 5 of the Family Courts Rules deals with the institution of
proceedings before the Family Court. Sub-rule (ii) of the said Rule reads:
“All proceedings instituted before the Family Court
shall be by way of a petition or plaint, as the case
may be, however in respect of applications under
Chapter IX of the Code of Criminal Procedure,
1973 (Central Act 2 of 1974), the provisions of that
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34.This rule again has to be read with Rule 6 which mandates that the
petition or application shall be accompanied by as many clear authenticated
copies as there are respondents to be served. Though Rule 5 stipulates that all
the proceedings before the Family Court must be instituted by way of plaint
or a petition, the Rules are silent on the meaning, the format and the contents
of the plaint/petition. In fact, Section 2(e) of the Act provides that the
meaning for the terms not specifically defined under the Act must be referred
in the Code of Civil Procedure, 1908. Further, the Rules do not specifically
list out those circumstances which warrant the presentation of a plaint and
those which require the presentation of a petition. With the subject-matter
jurisdiction of the Family Court being extensive under Section 7 of the Act
and with Family Courts Rules not specifying the format of the plaint/petition
and the manner of its presentation, recourse can be only taken to Sections
2(e) & 10 of the Act read with Rules 50 and 51 of the Family Courts Rules.
These provisions provide for the application of the provisions of Code of
Civil Procedure, 1908 [hereinafter “CPC” for the sake of brevity] and the
Civil Rules of Practice and Circular Standing Orders, in proceedings before
the Family Court. This shows that the plaint or petition must comply with the
rules contained in Orders VI and VII of the CPC.
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35.Here, it is apposite to note that the litigants who approach the
Family Courts are normally persons with no formal exposure and experience
in litigation, to know the rules of procedure as enumerated in the CPC. They
are persons who seek assistance of the Court amidst their physical, emotional,
and financial suffering. As noted by the Law Commission, they approach the
Court with sensitive issues involving their person and life. Therefore, to
mandate that they know the intricacies of plaint and petition, and the legal
nuances that these terms carry would neither be sensible nor logical.
36.Further, to expect that these persons know the circumstances for
filing a plaint and those for filing a petition, and to expect that they know the
procedure for procurement of authenticated copies are incompatible with the
very object for which the Family Courts are established- to provide an easily
accessible platform for resolving family matters governed by just and humane
procedures.
B. Assistance of an advocate
37.With no experience in the legal procedure and technicalities to
enable them to draft a plaint or a petition and present it in consonance with
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the procedural law, it only seems fair that the parties be allowed to obtain the
guidance and aid of a legal practitioner. Here, it is pertinent to note that the
Act attempts to regulate a party’s right to be represented by a legal
practitioner. Section 13 of the Act stipulates that:
“Notwithstanding anything contained in 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:
Provided 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.”
38.The corresponding Rule to this Section would be Rule 41 of the
Family Courts Rules. The said Rule is reproduced below:
“41. (i) The Court may permit the parties to
be represented by a lawyer in Court. Such
permission may be granted if the case involves
complicated questions of law or fact and if the
Court is of the view that the party in person will not
be in a position to conduct his or her case
adequately. The reason for granting permission
shall be recorded in the- order. Such permission for
the assistance of the lawyer by either of the parties
cannot be claimed or entertained as a matter of
right. Permission so granted may be revoked by the
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considers it just and necessary.
(ii) Time for making application:-An application by
a party for being represented by a lawyer in Court
shall be made by such party to the Court only after
service of notice on either side upon appearance.
Such an application shall be made at least two
weeks prior to the date fixed for hearing.
(iii) Application not to be entertained at the
hearing.-An application shall not be entertained
after the petition is placed for hearing on the daily
board of the Court unless there are exceptional
circumstances justifying such late application.”
39.A combined reading of these provisions would indicate that it was
not the intent of the Parliament or of the Madras High Court to unqualifiedly
restrict the representation of a party by a lawyer before the Family Court.
Though Section 13 and Rule 41 stipulate that the parties cannot seek
representation by a lawyer, as of right, the provisions do not restrain the
litigants before the Family Court from resorting to the aid and assistance of
the legal practitioner altogether.
40.This position is further clarified by a perusal of the parliamentary
debates on the Family Courts Bill. While rebutting the criticism made on the
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exclusion of legal practitioners, Shri Jagannath Kaushal explained:
“Why we have excluded the legal practitioner? It
may be an unfortunate experience, but experience
says that whenever lawyers on both sides are there,
effort of one side who feels that their case is weak
is to prolong the case and that is a situation which
we have to accept. Our idea again is what for
people are needed at conciliation stages? We do
not want proceedings to be adversorial. Therefore,
we are keeping the lawyers out. It has been
welcomed also; somewhere it is criticised also. But
the demand is that free legal aid should be allowed.
Obviously, free legal aid will be allowed because if
you know free legal aid scheme, women are
allowed free legal aid without any limitation as to
income, etc; they will have free legal aid excluding
the lawyer. Free legal aid is obvious because
according to the central scheme prepared by
Justice Bhagwati, it has been adopted by all the
courts.”
41.Further the Court is also conscious of the fact that Rule 41 was
modelled by the Madras High Court on the lines of Rule 37 of the Family
Courts (Court) Rules, 1988 of the Bombay High Court. It was upon the
recommendation of a Division Bench of this Court in S. Venkataraman Vs
L. Vijayasaratha, [(1996) 2 LW 222]. In the said decision, the Division
Bench of this Court observed:
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C.R.P.(PD).No.4073 & 4227 of 2024“7. … So, in other words, though in other
normal civil courts, a legal practitioner can, as of
right, appear on behalf of his clients, in the Family
Court, such a right cannot be claimed as such, but,
it is left to the discretion of the Family Court to
allow any counsel to appear on behalf of the client
and give necessary legal assistance, generally in
the interest of justice and particularly, taking into
consideration the nature of the case and the
conditions under which the parties are placed. So,
if any of the parties before the Family Court, files a
memo or petition before the Family Court, or even
when orally express desire seeking permission of
the court for him or her to engage a counsel and
have legal assistance, the Family court, exercising
its judicial discretion, may allow the parties to
have such legal assistance, as required, in the
interest of justice and after taking into
consideration the nature of the case and the
conditions under which the parties are placed.
When so allowed, the counsel of a party could file
the vakalath and do all that is necessary for the
client in conducting the case. It is said that at times
a counsel is allowed to give some (not all)
assistance in conducting the case even without
filing a vakalath. But, we must state that, allowing
counsel to give any assistance in conducting the
case without himself filing vakalath, is not proper.”
42.As clearly suggested by the parliamentary debates and the judgment
of the Division Bench, lawyers are not completely prohibited from offering
professional assistance to the litigants before the Family Courts. This view is
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also in line with the judgment of the Division Bench of the Gujarat High
Court in Abhishek Kumar Mishra Vs Ankita Ghanshyamsinh Chauhan,
[2021 SCC OnLine Guj 961] and the Division Bench of the Andhra Pradesh
High Court in R. Durga Prasad Vs Union of India and Anr, [AIR 1998 AP
290].
43.The only reason for regulating the representation by lawyers before
the Family Court was to prevent the proceedings from becoming adversarial.
If that be the intent of the framers, then to direct the litigants to draft the
plaint/petition and later present it before the Family Court in accordance with
CPC for instituting the proceedings, without the guidance of the lawyers
whose experience in the field would be of significant help, is plainly
unreasonable. Such a direction would by itself prolong the proceedings to the
disadvantage of the parties for prevention of which the appearance of lawyers
was restricted in the first place. A closer reading of Section 13 would further
strengthen the view that only representation of a party by a lawyer before the
Court is attempted to be regulated and the parties are under no restraint from
approaching a legal practitioner to seek help while drafting a plaint or a
petition, as the case may be.
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44.Further, even as regards representation, as clarified by the Division
Bench and affirmed by Rule 41, the lawyers can be allowed to file a vakalath
and represent the parties, if mediation fails and the matter is taken on file by
the Family Court, after obtaining the requisite consent from the Family Judge.
As discussed in the earlier paragraph, the only reason for restricting the
appearance and practice of the lawyers before the Family Courts was to
prevent the proceedings from becoming adversarial. However, if the lack of
representation by a lawyer would negatively impact a party’s right to
effectively present/contest her/his case, then the Court must be liberal in
exercising its discretion under Rule 41 of the Family Courts Rules.
45.At this juncture, the Court must also consider the effect of Section
30 of the Advocates Act, 1961 on Section 13 of the Family Courts Act.
Section 30 of the Advocates Act, 1961 deals with an advocate’s right to
practise in the courts in India and it reads as follows:
“Subject to the provisions of this Act, every
advocate whose name is entered in the [State roll]
shall be entitled as of right to practise throughout
the territories to which this Act extends,-
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before any tribunal or person legally authorised to
take evidence; and
before any other authority or person before whom
such advocate is by or under any law for the time
being in force entitled to practise.”
46.Though this provision enables the advocates to practise in all the
courts including the Supreme Court as a matter of right, the said provision
cannot override Section 13 of the Family Courts Act and its correlative Rule
viz. Rule 41 of Family Courts Rules. The reason is fivefold.
47.Firstly, if Section 30 of the Advocates Act is interpreted in such a
way as to nullify Section 13 of the Family Courts Act, it will go contrary to
the principles of interpretation that no legislation can be nulified on the
grounds of conflict. It is the duty of the Court to interpret both the provisions
harmoniously.
48.Secondly, Section 13 of the Family Courts Act does not attempt to
completely bar the advocates from practising in the Family Courts. It only
tries to ensure that the right to practise of an advocate before the Family
Court is not stretched to such an extent that their practise before the Family
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the advocate’s right to practise before the Family Courts can be approved.
49.Thirdly, the Family Courts Act is a special law and the Advocates
Act is a general law, hence generalia specialibus non derogant (things
general do not derogate from things special).
50.Fourthly, even if it is considered that the position under Section 30
of the Advocates Act reflects the fundamental right of the advocates to
practise their profession under Article 19(1)(g), the same is not absolute. It
can be reasonably regulated under Article 19(6). The restriction on practise
placed under Section 13 of the Family Courts Act and Rule 41 of the Family
Courts Rules is aimed at expediting the Family Court proceedings and
making them less adversarial. Therefore, Section 13 and Rule 41 are not hit
by Article 19(1)(g) of the Constitution.
51.Fifthly, it is worthwhile mentioning that though the Advocates Act
was enacted in the year 1961, Section 30 of the Advocates Act was brought
into force only on 15.06.2011, almost 27 years after the Family Courts Act
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the Advocates Act, even at the time of enacting the Family Courts Act, 1984.
Nevertheless, it chose to introduce Section 13 into the Family Courts Act and
chose to retain Section 13, even after Section 30 was brought into force.
Therefore, the wisdom of the legislature to retain Section 13 in the Family
Courts Act must be respected while interpreting Section 30 of the Advocates
Act.
52.Therefore, it can be reasonably concluded that the litigants before
the Family Courts can seek the assistance of legal practitioners to draft
plaint/petition/application, as the case may be. They can present the
plaint/petition/application before the Family Court to institute the
proceedings. They can also be represented by lawyers upon the failure of
mediation and upon filing of an application before the Family Court under
Rule 41. While disposing of an application for legal representation under
Rule 41 of the Family Courts Rules, the Court must adopt a liberal and a
humane approach considering the fact that, even the most educated and
privileged litigants, may not necessarily be adept with the legal procedure and
formalities.
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53.Further, the Court must ordinarily allow such applications
especially if the party is residing outside India. In such circumstances, the
refusal of such applications would only increase the mental agony of the
parties. In this regard, the observations of the Division Bench of the
Allahabad High Court in Prabhat Narain Tickoo Vs Mamta Tickoo and Ors,
[(1998) 33 ALR 253] must be taken into account. In that case, the Court
opined that:
“9. … However, if the reconciliation attempt fails,
and the matter has to be adjudicated, in our opinion
the court should ordinarily allow lawyers to appear
on behalf of the parties. This is necessary because
Divorce law and other Family law has now become
a complicated branch of law, and an ordinary
layman cannot be expected to know this law. It may
be mentioned that there is a catena of decisions
both in England and India on this branch of law,
and without a knowledge of the same a party cannot
properly represent himself/herself in the case, and
only a trained lawyer can do so… Moreover, a
layman would be ignorant of procedure/rules, also.
Hence, it is obvious that a layman cannot ordinarily
represent himself properly in such cases.
Representation by lawyers will not only be of great
assistance to the parties, it will also be of great
assistant to the court to do justice expeditiously.
Some people say that lawyers will cause delay in the33/86
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C.R.P.(PD).No.4073 & 4227 of 2024proceedings. In our opinion far from delaying the
proceedings, a lawyer will greatly expedite it
because by his knowledge of law and procedure and
his training he can quickly come to the relevant
points. Moreover, lawyers know the art of the cross-
examination, and the rules of procedure, which a
layman does not. Hence we are of the opinion that
the discretion in granting/refusing representation
by lawyers must be exercised in the manner
aforementioned, namely that at the stage when the
court is trying to reconcile the parties or when
divorce is sought by mutual consent no lawyer
should ordinarily be permitted, but otherwise when
the matter is being adjudicated lawyers should
ordinarily be allowed to represent the parties.”Therefore, the Family Courts must be conscious of the physiological
and psychological suffering of the litigants and cannot display an attitude of
utter indifference by mandating the litigants unfamiliar with the CPC to
adhere to the letter and spirit of the Code. The Family Courts must remember
that the Courts are for litigants and litigants are not for the Courts.
C. Representation by a power agent
54.To understand the working of the Family Courts here in Tamil Nadu
and the difficulties faced in prosecuting the lis by the parties, this Court
requested Mr.M.K.Kabir, learned amicus curiae, to submit a report. In his
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report dated 25.10.2024, the learned amicus curiae submitted that the Family
Court in Chennai has 8 Presiding Officers including the Principal Family
Judge. Every month, a minimum of 500 cases are presented and several
hundred cases are being disposed of by these Presiding Officers. As the
Family Court insists on the personal attendance of the parties for every
hearing, thousands of litigants throng the Court every day. These litigants are
also accompanied by their family members and children, leading to
overcrowding and disorder within the Family Court’s limited premises. Apart
from this, differently abled litigants, senior citizens and pregnant women also
attend the Family Court regularly.
55.Further Ms.Rohini Ravikumar, learned advocate, on her
independent research submitted that not less than 800 to 1500 entry slips are
issued every day by the security detail of the Court premises to the litigants
before the Family Court and their families. This is, on account of the fact that,
the Family Courts insist on the personal appearance of the parties whenever
their matter is listed before the Court. Even for complying with procedural
formalities such as payment of batta, filing of affidavit, counter, etc., the
attendance of the parties is mandated.
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56.The Court is given to understand that the Family Courts’ insistence
on the personal attendance of the litigants for every hearing contributes
significantly to the delay in the disposal of cases. This issue of procedural
delay was also highlighted by the constitutional bench of this Court in
S.Annapoorni Vs K. Vijay [2022 SCC OnLine Mad 4367]:
“366. It is a stark reality that many of the
Family Courts suffer from procedural delays which
completely defeats the purpose of the legislation.
These issues have been noticed by Justice V.
Parthiban in his order of reference. These concerns
were also reiterated and highlighted by
practitioners from the Family Court before this
Bench. While acknowledging the existence of a
problem in the Family Court, there is an urgent
need to reform the existing system. There is a grave
danger that inefficiency would erode the ability of
these Courts to deliver justice to the relevant
stakeholders who come before it. The High Court
cannot throw up its hands and turn a blind eye
when there exists a problem that cries out for
solution.”
57.The insistence on personal attendance of the litigants for every
hearing is incongruent with the spirit of the Act and the object it seeks to
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achieve. As noted in the earlier part of this judgment, the Family Courts were
established to approach the family matters in a humane and reasonable
manner. And as already noted, the Family Court was established as a separate
institution to be more empathetic to the physical, emotional, and financial
distress of the litigants. Even for the Family Courts, the personal attendance
of the litigants during every hearing, including the procedural hearings,
would tend to contribute to their inefficiency and delay in proceedings as the
attendance of the litigants cannot always be guaranteed and would lead to
more disorder within the court premises.
58.Further, it is also inhumane to presume that the litigants are placed
in such circumstances that they are always available at the beck and call of
the Family Court. There are a variety of reasons that could disable a party
from personally attending the court proceedings ranging from professional
commitments, health issues, overseas travel, etc. In such circumstances, the
Family Court would not be justified in directing the parties to personally
appear before it for any such direction would become simply adverse to the
litigants. Again to reiterate, the litigants are not for the Courts, but the Courts
are for the litigants.
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59.In consideration of the same, this Court is of the opinion that the
parties may be permitted to appoint a power agent in consonance with Order
III Rules 1 and 2 of the CPC and Rule 16 of the Civil Rules of Practice to
conduct the proceedings on their behalf. The power to do the same is again
traceable within Section 10 of the Act and Rules 50 and 51 of the Family
Courts Rules which provide for the application of the provisions of CPC in
the proceedings before the Family Court. This view is also adopted by the
Supreme Court in Amardeep Singh Vs Harveen Kaur, [(2017) 8 SCC 746],
Punjab and Haryana High Court in Navdeep Kaur Vs Maninder Singh
Ahluwalia, [AIR 2010 P&H 90], and by this Court in S.M. Syed Amina
Beevi Vs Thaika Sahib Alim and Anr, [(1993) 2 LW 604]; Pavithra Vs
Rahul Raj, [(2003) 2 LW 431]; Nathiya Faru Vs Rojan Roux, [2009 SCC
OnLine Mad 652]; Terance Alex Vs Mary Sowmya Rose, [(2011) 2 LW 84];
and P.Pathiah Moopar Vs The Revenue Divisional Officer, Madurai,
[(2011) 2 LW 93].
60.Further this Court, while dealing with a matter relating to the
physical presence of the parties seeking divorce under Section 13-B of the
Hindu Marriage Act in G. Shrilakshmi Vs Anirudh Ramkumar, [C.R.P.
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Nos. 1994 & 89 of 2024 dated 18.10.2024], allowed representation of the
parties through power agents in such cases on the following terms:
“32. …
(ii) Petitions can be filed either by the parties
directly or by the Power of Attorney of the parties,
provided, the Power of Attorney to be a registered
one or properly adjudicated;
(iii) On behalf of the parties, Power of Attorneys
can appear and prosecute. The only embargo is
that the recognised agent should not be a legal
practitioner;
(iv) The Power of Attorney representing the parties
shall present the petition with relevant documents
annexed, materials and proof affidavit required for
the case in physical form”Though this case specifically relates to Section 13-B of the Hindu
Marriage Act and can be conveniently applied to the facts in
C.R.P.(PD).No.4073 of 2024, the ratio can be also followed in other cases
pending before the Family Courts as well. This would not only facilitate the
expeditious disposal of cases, but would also ensure that the Family Courts
do not meander from their ingrained obligation to be responsive to the plight
and pleas of the litigants.
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61.In an attempt to supplement the safeguards laid down in the
Shrilakshmi case and to further ensure the bona fides of a power of attorney,
the following guidelines are framed by this Court:-
(i)To ensure the authenticity of deed of power of attorney, in case, if
executed in India, it should be registered within the jurisdictional Sub
Registrar or should be executed in the presence of a notary public.
(ii)In case the power of attorney is executed abroad and sent to India, it
should be adjudicated by the competent authority or it should be notarized by
the notary public or a similar officer appointed by that country to attest the
document. It must be accompanied by a certificate of notary public
confirming that the party is residing within the jurisdiction for which he has
been authorized. Further, it should also be adjudicated in terms of Section
3(c) of the Stamp Act read with Article 48 of the I Schedule attached to the
(iii)The power agent can represent the party at every stage of the
proceeding right from the stage of presentation of the plaint/petition.
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However, the power agent cannot substitute the presence of the party during
mediation and recording of evidence or when the presence of the party is felt
indispensable.
(iv)The plaint/petition can be presented by the petitioner appearing in
person before the Family Court or by a duly authorized power agent. At the
time of presentation of the plaint/petition by a power agent, it should be
accompanied by a petition under Order III Rule 1 of the Code of Civil
Procedure, the registered and adjudicated power of attorney, and two
affidavits, one executed by the Principal stating that he/she has appointed a
power of attorney, and the other executed by the power agent accepting the
power that has been given by the petitioner. The filing of these two affidavits
would further ensure the authenticity of the power agent and would also
ensure that the provisions of Order III Rules 1 and 2 are not maliciously used
to the disadvantage of any party to the litigation.
(v)Further, on the day of presentation of plaint/petition by the power
agent, a soft copy of the plaint/petition must be emailed by the party
represented by the power agent to the registered e-mail address of the Court.
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(vi)For the purpose of dealing with the petition under Order III Rule 1
of the Code of Civil Procedure, since the provisions of the Code of Civil
Procedure apply to the Family Courts, the court need not issue notice in the
said application. This is a matter between the Court and the party, and
therefore, after confirming that the petition complies with the requirements of
Order III Rule 1, it shall be allowed by the Court concerned without notice to
the respondent. This, in the opinion of this Court, would greatly save the
judicial time.
D.Numbering and serving of summons
62.Once the petition filed under Order III Rule 1 of CPC is allowed,
the plaint/petition will be taken on file by the Family Court. The next stage in
the proceeding would be the numbering of the plaint/petition and serving of
summons. Again, be it the petitioner or the power agent, to direct them to
follow up with the numbering of the plaint/petition and undertake serving of
summons in accordance with CPC as mandated by Rule 12 of the Family
Courts Rules, would be unreasonable. They, being persons with no familiarity
with the legal procedure, and the non-service of summons in the manner laid
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down in CPC being detrimental to the very proceedings under Rule 15 of the
Family Courts Rules, it is only reasonable to allow the petitioner or the power
agent to employ the services of a lawyer or a registered clerk to the extent of
ensuring the numbering of the plaint/petition and serving of summons to the
defendants/respondents in the matter.
III.Counselling
63.Upon the service of summons and appearance of the parties before
the Court on the appointed date, the Court must verify the identity of the
parties. In case, the defendant/respondent is not in a position to appear in
person on the appointed date, the said defendant/respondent can appear
through a power agent in the manner discussed under the head
“Representation by a power agent” in this judgment.
64.The Court, after deciding the petition under Order III Rule 1, would
proceed to verify the identity of the parties and the parties must produce a
government-issued identity document such as a passport, aadhar card, driving
license, etc., to prove that they indeed are the parties to the proceedings. If
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any of the party/parties are being represented by the power agent, the power
agent must produce his/her government-issued identity document along with
a copy of the identity document of the party that they are representing and the
party being represented must e-mail a soft copy of his/her identity document
to the registered e-mail address of the Family Court on the same date.
65.On the appearance of parties and verification of their identity, the
parties are first referred to counselling by the Family Court. This Court is
made aware by the counsel for the petitioners and members of the Bar
practising in the Family Court that as of now there is no provision for online
counselling. Till online counselling facility is commenced, the parties shall
physically appear before the counsellor. After counselling, the Court may
refer the parties to mediation which can happen either physically or through
video conferencing. More about it later.
66.Instead of opting for counselling, if the parties jointly request for
mediation, the Court may bypass counselling and may allow the parties to
directly go to mediation.
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67.This Court is also conscious of the fact that the Family Court does
not entertain applications for interim relief until the process of mediation is
completed. However, the Court cannot ignore the fact that the parties to the
proceeding may approach the Family Court with certain extremely urgent
reliefs, such as anti-suit injunctions, injunctions for preventing the other
spouse from removing the child from the jurisdiction of the Court,
co-endorsement on the passport, application for extension of visa, etc. An
application for such reliefs may be moved before the Family Court with the
assistance of an Advocate before the matter is referred to mediation and the
Court must be sensitive to the pleas and rights of the parties.
68.The reliefs hereinabove listed out are only illustrative and not
exhaustive. The Family Courts cannot restrict the scope of the pre-mediation
applications to the reliefs illustratively mentioned in this order. The Family
Courts must always remember that there could be a variety of other urgent
reliefs wherein in case the event feared takes place, it is not always possible
for the situation to reverse.
69.Therefore, considering the nature of the application moved, the
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Courts must hear the application before referring the parties to mediation.
While determining the urgent nature of the application, the Family Court
must not forget that the instances in the society are myriad as the colours in
the kaleidoscope and it is for the Court to be considerate of the emergency
evidenced in the pre-mediation application. Before disposing of such
applications, the Court may grant exparte order or may order notice to the
other side and must hear both sides and must dispose of such applications
before ordering for mediation.
IV.Mediation
70.After counselling, the Family Court may refer the parties to
mediation to comply with the provisions of Section 9(1) of the Act. For the
sake of cogent discussion, the provision is extracted hereunder:
“9(1). In every suit or proceeding, 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
proceeding and for this purpose a Family Court
may, subject to any rules made by the High Court,
follow such procedure as it may deem fit.”46/86
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71.It is pertinent to point out here that a perusal of the parliamentary
debates on the Family Courts Bill and the Preamble of the Family Courts Act
would reveal that the Act has been enacted with an objective to promote
“conciliation” among the parties before the Family Court. Therefore, the duty
cast on the Family Court under Section 9 is unqualified and cannot be
exempted. Further ,the parties before the Family Court have an obligation to
take part in the mediation efforts of the Court. This again is clear from Rule
26 of the Family Courts Rules which reads as follows:
“26. The parties shall be bound to consult the
counsellor on the date and at the time so fixed by
the Court.”
72.When the Act is intended to promote conciliation among the
litigants before the Family Courts and when the litigants are obliged to
cooperate with the mediation efforts of the Family Court, their presence
during mediation becomes indispensable. They cannot be represented by their
power agent, whoever that may be, at this stage of the proceedings. However,
this Court is still conscious of the fact that the parties may not always be
suited to personally attend the proceedings before the Family Court,
including the mediation before the mediator.
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73.With the parties’ participation during mediation indispensable and
their presence not always guaranteed, it is only fair to allow them to appear in
video conferencing if their physical presence for the mediation on the
appointed date is rendered impossible.
74.Here, Section 30 of the Mediation Act, 2023 is significant. Section
30 of the Mediation Act allows online mediation. Unfortunately, the Section
has not been brought into force and the rules regarding online mediation have
not yet been framed. Nevertheless, in terms of Section 57 of the Mediation
Act and the Proviso attached to it, the rules which have been framed for
court-annexed mediation shall continue till regulations are framed under
Section 15(1) of the Mediation Act. Therefore, the Tamil Nadu Mediation
Rules, 2010 continue to be in force even after the enactment of the Mediation
Act. Rule 7 of the Mediation Rules provides the venue for the mediation.
Rule 7(5) stipulates that the venue for mediation can be
“any other place as may be agreed upon by the
parties subject to the approval of the Court”.
75.This shows that though the Rules do not specifically provide for
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online mediation, it does not prohibit it either.
76.The Madras High Court has been proactively encouraging online
mediation. In fact, the Committee for Tamil Nadu Mediation and Conciliation
Centre of the Madras High Court in the meeting held on 13th August 2020
has directed the Tamil Nadu Mediation and Conciliation Centre to conduct a
training program for the mediators in online mediation. In compliance with
the same, a pilot project of online mediation training for the mediators of the
State of Tamil Nadu was notified through ROC No.
27/2020/TNMCC/Hct.Ms dated 16.08.2020 and the same was conducted
between 23rd and 25th August 2020.
77.Given the fact that this Court promotes online mediation, and the
mediators of the State of Tamil Nadu are trained to conduct mediation online,
the parties referred to mediation by the Family Court may appear through
video conferencing upon serving due and prior notice to the mediator and the
other side, if they are unable to appear physically. This view also aligns with
the judgment of this Court in S. Kasthuri Vs G. Nitin Krishna, [C.R.P.(MD)
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No. 530 of 2024 dated 20.09.2024].
78.Till appropriate rules are framed, this Court feels a procedure
should be evolved for this purpose. Hence, the following directions: –
(i)Notice must be served on the mediator and other side at least two
days prior to the appointed date of mediation to enable the mediator to make
arrangements for the video conferencing.
(ii)The notice must specify the email address and the phone number of
the party seeking to appear online.
(iii)The mediator must decide on an online platform that is easily
accessible for the parties and must send the details of the online platform
including the time of mediation to the notified e-mail address or phone
number or both, as the case may be, of the parties at least a day before the
mediation. The mediator must also ensure that the time fixed for mediation is
feasible for all the parties.
(iv)Further, if one of the parties chooses to physically appear for the
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C.R.P.(PD).No.4073 & 4227 of 2024mediation, the mediator shall conduct the online mediation within the
premises of the mediation centre or within the premises of the Court with a
video conferencing facility,and notify the party choosing to physically appear
of the venue of mediation at least a day before the appointed date of
mediation. The mediator shall also ensure that the party appearing physically
is adequately audible to the party/parties appearing in video conferencing.
(v)At the time of mediation, the mediator must preserve the in camera
nature of the proceedings and must ensure that no other party is let inside the
online platform where the mediation of a particular case takes place. Further,
if any attempt to record the mediation is made by any of the parties appearing
in video conferencing, the same may be proceeded against as contempt of
court.
(vi)For the purpose of verification, the party/parties appearing in video
conferencing must e-mail a soft copy of the government-issued identity
document to the mediator on the appointed date of mediation. The
party/parties appearing physically must also produce their identity document
to the mediator for the said purpose.
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(vii)Upon mediation, if the parties arrive at a settlement, the said
settlement shall be reduced to writing in terms of Rule 35 of the Family
Courts Rules and it shall be signed by the parties and countersigned by the
mediator. If any of the party/parties appear online during the mediation, the
mediator shall cause the terms of settlement to be reduced to writing and send
an non-editable soft copy of the same to the notified email address of the
party who appeared through video conferencing. The said party shall sign the
settlement and email the signed settlement to the mediator to be
countersigned by him/her. In such circumstances, the report of the mediator
shall state that the parties appeared online and were duly identified.
(viii)The signed settlement along with the report of the mediator must
then be forwarded by the mediator to the Court for pronouncing the judgment
and decree.
(ix)Though mediation is made mandatory, it may not be out of place to
state that, it may not be required if a 13B petition or any other consent
petition is filed pursuant to a compromise made during mediation.
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V.Applications for representation and interim relief
79.If after mediation, the parties fail to arrive at a settlement as
stipulated under Rule 36 of the Family Courts Rules or fail to appear and
cooperate with the mediator as envisaged under Rule 27 of the Family Courts
Rules, the mediator shall file a memorandum or report, as the case may be, to
that effect before the Family Court. The Court shall list the case for trial. At
this stage, if any of the party/parties feel that their interest and case would be
better presented through a lawyer, a petition must be made to that effect
before the Court under Rule 41 of the Family Courts Rules. As discussed in
the earlier part of this judgment, the Court must adopt a liberal approach
while deciding the petition. At the time of deciding the Rule 41 petition,
while assessing whether the matter is of such nature warranting the assistance
of and representation by a legal practitioner, the Family Court must not
impose its own subjective opinions on the case before it. The Court must be
sensitive to the concerns of the litigants and must remind itself that the parties
before it are, very often, emotionally fragile.
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80.On the Court allowing the Rule 41 petition, the advocate must file a
vakalath nama in consonance with Order III Rule 4 CPC. The option to file
such petition is available to both the petitioner and the respondent. With the
advocate filing the vakalath nama, the defendant/respondent may file a
written statement/counter either by himself/herself or through the power
agent or through the advocate. In case, such a written statement/counter is
filed by a party through the advocate or power agent, a soft copy of the same
must be e-mailed to the registered e-mail address of the Family Court on the
same day of presentation. The presence of the advocate must be recorded on
every hearing when he/she is present.
81.Likewise, the parties before the Family Court may file any
application for interim relief in accordance with the CPC by himself/herself
or through the power agent or through the advocate. The counter for such an
application may be filed by the advocate or the power agent of the other
party. A soft copy of the petition or counter, as the case may be, if presented
through advocate or power agent, must be e-mailed to the Court on the same
day of presentation.
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82.At the time of hearing the application, the party/parties may be
represented by their advocate or power of attorney. However, if the Family
Court insists on the appearance of the parties themselves, and if the parties
are not in a position to appear in person, an application to appear in video
conferencing may be filed by the party through the advocate or power of
attorney. This application must specifically state the email address of the
party seeking to appear online for the purpose of communication of hearing
details by the Court. This application, to appear in video conferencing, must
be decided first and the Court, like in the Rule 41 petition, must adopt a
liberal approach while adjudicating the video conferencing application.
83.While allowing the video conferencing application, the Court must
also fix a hearing date and time that would be convenient and feasible for all
the parties and the Court itself. The Court must inform while allowing the
application the date and time at which the video conferencing proceedings
would be carried on. In the event, it is not possible to inform immediately,
then the Court must inform the assisting counsel about the dates. If no
assisting counsel is available, then the Court must e-mail the details of the
video conferencing to the parties seeking to appear in video conferencing at
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least three days before the hearing date. Here it is pertinent to mention that
the parties appearing in video conferencing can access the video conferencing
link from the official website of the Court.
84.And, to enable the Court to verify the identity of the party appearing
in video conferencing, the party must e-mail the soft copy of a government-
issued identity document to the Court. On the appearance of the party in
video conferencing, the party must be identified either by his/her advocate or
the power agent before the Court. While disposing of the application for
interim relief, the Court must specify that such party appeared through video
conferencing.
85.For an easier understanding of the procedure laid down by this
Court, vis-à-vis applications, the following flow chart may be referred to:-
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C.R.P.(PD).No.4073 & 4227 of 2024VI.Recording of evidence and hearing of parties
86.Prior to the COVID-19 pandemic, the proceedings before every
court in this country took place physically, and virtual hearings happened
only in exceptional circumstances. The proceedings before the Family Courts
in particular took place physically to adhere to the in camera mandate of the
Act. In this setting, a three-judge bench of the Supreme Court in Santhini Vs
Vijaya Venkatesh, [(2018) 1 SCC 1], in a 2:1 split verdict, held that the
conduct of proceedings under the Family Courts Act, 1984 through video
conferencing upon the request of only one party is impermissible. The
rationale adopted in the majority opinion is as follows:
“45.The aforesaid enunciation of law makes
it graphically clear that the “constitutional
identity”, “freedom of choice”, “dignity of a
woman” and “affirmative rights conferred on her
by the Constitution” cannot be allowed to be
abrogated even for a moment. In this context, we
have to scan and appreciate the provision
contained in Section 11 of the 1984 Act. The
provision, as has been stated earlier, mandates the
proceedings to be held in camera if one of the
parties so desires. Equality of choice has been
conferred by the statute. That apart, Section 22 of
the 1955 Act lays down the proceedings to be held
in camera and any matter in relation to any such58/86
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C.R.P.(PD).No.4073 & 4227 of 2024proceeding may not be printed or published except
a judgment of the High Court or of the Supreme
Court with the previous permission of the Court.
46. We, as advised at present, constrict our
analysis to the provisions of the 1984 Act. First, as
we notice, the expression of desire by the wife or
the husband is whittled down and smothered if the
Court directs that the proceedings shall be
conducted through the use of videoconferencing.
As is demonstrable from the analysis of para 14 of
the decision [Krishna Veni Nagam v. Harish
Nagam, (2017) 4 SCC 150 : (2017) 2 SCC (Civ)
394] , the Court observed that wherever one or
both the parties make a request for the use of
videoconferencing, the proceedings may be
conducted by way of videoconferencing obviating
the need of the parties to appear in person. The
cases where videoconferencing has been directed
by this Court are distinguishable. They are either
in criminal cases or where the Court found it
necessary that the witness should be examined
through videoconferencing. In a case where the
wife does not give consent for videoconferencing, it
would be contrary to Section 11 of the 1984 Act. To
say that if one party makes the request, the
proceedings may be conducted by
videoconferencing mode or system would be
contrary to the language employed under Section
11 of the 1984 Act. The said provision, as is
evincible to us, is in consonance with the
constitutional provision which confer affirmative
rights on women that cannot be negatived by the
Court. The Family Court also has the jurisdiction
to direct that the proceedings shall be held in
camera if it so desires and, needless to say, the
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desire has to be expressed keeping in view the
provisions of the 1984 Act.”
87.However, even the majority view in paragraphs 58.2 and 58.3 of the
said judgment permitted the use of video conferencing to conduct the
proceedings under the Family Courts Act, 1984 if both the parties to the
proceedings, after the failure of settlement, consent for the same, or if the
Court believes that the conduct of proceedings through video conferencing
would subserve the interests of justice.
88.The majority view in the Santhini case restricted the use of video
conferencing as a mode to conduct the proceedings before the Family Court
only to protect the privacy and dignity of the parties and to prevent their
abrogation and to respect the parties’ freedom of choice to have the
proceedings conducted in camera. Further, it should also be noted that it was
never the intention of the Supreme Court to ban the use of video conferencing
in the proceedings before the Family Courts.
89.Today the present day rules viz. the Madras High Court Video-
Conferencing in Courts Rules, 2020 [hereinafter the “Video Conferencing
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Rules” for the sake of brevity] governing the operation of video conferencing
in the Courts in Tamil Nadu, it provides sufficient room for preserving the
privacy of the parties and the in camera nature of the proceedings before the
Family Courts. According to Clause 5.4 of the Practice Directions- VC No. 1
appended to the Video Conferencing Rules, the participants, after joining the
hearing, shall remain in the virtual lobby, until they are admitted to virtual
hearing by the coordinator at the court site. This practice of retaining the
participants in the virtual lobby until the matter is called for hearing by the
Judge would ensure that the video conferencing technology is not used to
breach the in camera nature of the proceedings, especially considering the
fact that the participants would not be able to view, hear and participate in the
cases of other parties. This would protect the anonymity, privacy and dignity
of all the parties to the proceeding.
90.With the advent of this technology, even if one of the parties seeks
to appear through video conferencing, the in camera nature of the
proceedings would not be vitiated for the coordinator at the court site can
ensure that the party relevant to the case alone is present in the virtual hearing
at the time of taking up of the case by the Court. This is also in line with Rule
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9 of the Video Conferencing Rules. Further, the Video Conferencing Rules,
as on today, under Rule 3.7.2 do not permit any party to record the
proceedings. If it is recorded, the party, who has made such a recording, will
be liable to be proceeded for contempt of court. This again would doubly
guarantee that the in camera nature of the proceedings is not vitiated.
91.At this juncture, it is also apt to reproduce the dissenting opinion of
Dr. Justice D.Y. Chandrachud, as his Lordship then was, in the Santhini
case:
“85. Videoconferencing and in-camera
proceedings are not irreconcilable.
Videoconferencing, in itself, is a private
interaction. It does not involve third persons or
spectators apart from the two participants between
whom the videoconferencing is taking place (Judge
or counsellor and one of the parties to the dispute).
As long as it is not accessible to the public, privacy
is maintained. Therefore, it does not run contrary to
the intent of Section 11, which is to maintain
privacy. The same level of privacy that is afforded
to parties during in-camera proceedings which take
place in the same physical space, can be
maintained over the virtual space of
videoconferencing. Technology also allows us to
ensure that there is no record of the conversation
which took place through videoconferencing, once
the conversation is over. This is similar to a
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Technology provides flexibility. Discussions across
an audio-visual link in the course of counselling or
conciliation will not be recorded so as to maintain
privacy and intimate confidences. On the other
hand, where in the course of a trial, a judge
requires that a record of the deposition be
maintained, technology will facilitate it.
87. This Court must also take a robust view
of today’s conditions. We are living in an age of
technology. Men and women have access to and are
in possession of instruments which use advanced
technologies. The reality is that the world is not a
closed space. It has never been, and is becoming
increasingly interconnected. People are constantly
moving from one place to another in the course of
their personal and professional pursuits. In spite of
the distances that this movement entails, people are
able to interact with each other because of digital
facilities. Most desktops and mobile devices have
cameras, thereby facilitating the ease of online
communications in the audio-visual mode.
89. Technology must also be seen as a way of
bringing services into remote areas to deal with
problems associated with the justice delivery
system. With the increasing cost of travelling and
other expenses, videoconferencing can provide a
cost-effective and efficient alternative. Solutions
based on modern technology allow the court to
enhance the quality and effectiveness of the
administration of justice. The use of technology can
maximise efficiency and develop innovative
methods for delivering legal services. Technology-
based solutions must be adopted to facilitate access
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to justice. Family Courts are overburdened with all
too familiar problems : too few courts, vacancies in
Judge strength and a creaking infrastructure. Men
and women in matrimonial distress have their woes
compounded in the justice delivery system.
Repeated adjournments break the back of the
litigant. We must embrace technology and not
retard its application, to make the administration of
justice efficient.”
92.This view on adopting technology and video conferencing in cases
before the Family Court was also approved by an earlier judgment of the
Supreme Court in the case of Amardeep Singh Vs Harveen Kaur, [(2017) 8
SCC 746] and the same has been not overruled by the three-judge bench in
the Santhini case. The Amardeep case was also followed by this Court in G.
Shrilakshmi Vs Anirudh Ramkumar, [C.R.P. Nos. 1994 & 89 of 2024 dated
18.10.2024].
93.The views on technology and video conferencing taken by
Dr.Justice D.Y.Chandrachud in his dissenting opinion in the Santhini case
have become far more practical after the COVID-19 pandemic, and the same,
if adhered to, would provide a platform to uphold the very object for which
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the Act was enacted viz. speedy disposal of family matters with a lenient
approach towards the pleas and prayers of the litigants.
94.If this technology is put to proper use, the recording of evidence and
the hearing of parties can be done through video conferencing. In fact, Rule
3(2) of the Video Conferencing Rules permits the use of video conferencing
in all or any stage of the judicial proceedings. Further, the Madras High Court
acting through its Registrar General mandated the District Judiciary to hear
cases through hybrid video conferencing with effect from 05.02.2024 and
directed the District Judiciary to not insist on the physical appearance of the
advocates/litigants unless and until required, vide notification R.O.C.No.
1166A/2024/Comp4/VC dated 02.02.2024.
95.It is also pertinent to point out that the Video Conferencing Rules
under Rule 3(3) only prohibits the recording of judicial confessions of the
accused and the recording of settlements and pronouncements of awards in
Lok Adalat or Jail Adalat through video conferencing. This implies that there
is nothing in law to prohibit the Family Courts from recording the evidence
and hearing the parties through video conferencing. Therefore, at the time of
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trial, if the parties cannot make themselves physically available then the
Family Court must understand their concerns and may allow them to appear
in video conferencing upon the consideration of the relevant circumstances.
A. Recording of evidence
96.During the conduct of proceedings, in case the party is abroad, the
proof affidavit of the party should be notarized or should be authenticated by
any Court, Judge, Magistrate, Indian Consulate, or any other representative of
the Central Government of India in that country. The notary, who attested the
proof affidavit, should be within the jurisdiction where the deponent is
residing. Further, in case any party before the Family Court is unable to
physically appear before the Court at the time of recording of evidence, either
on account of not being in India or otherwise, the advocate or the power
agent of the party may move an application before the Family Court for the
purpose of recording the evidence through video conferencing under Rule
4(1) of the Video Conferencing Rules.
97.The application for video conferencing shall be supported by an
affidavit evidencing the circumstances justifying the party’s physical absence.
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The affidavit also must specify the email address of the party seeking to
appear in video conferencing so that the same could later be used for the
communication of details of the video conferencing, exhibits, and deposition.
A soft copy of the said application and affidavit shall also be e-mailed to the
registered e-mail address of the Court on the same day by the said party. On
receipt of such an application, the Family Court must serve notice to the other
side in accordance with Rule 4(3). The other side may oppose the said
application in the same manner, as provided for, filing a counter to an
application seeking interim relief. To reiterate, while disposing of the
application filed under Rule 4 of the Video Conferencing Rules, the Family
Court must be guided by sensitivity and humanity.
98.On allowing the application, the Family Court must fix a date and
time that is feasible for all the parties and the Court itself for recording of
evidence. The Court must inform while allowing the application the date and
time at which the video conferencing proceedings would be carried on. In the
event, it is not possible to inform immediately, then the Court must inform
the assisting counsel about the dates. If no assisting counsel is available, then
the Court must e-mail the details of the video conferencing to the parties
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seeking to appear in video conferencing at least three days before the hearing
date. Here it is pertinent to mention that the parties appearing in video
conferencing can access the video conferencing link from the official website
of the Court.
99.Prior to the commencement of the recording of evidence by the
Family Court, the deponent should identify herself / himself and produce a
government-issued identity document pointing out to her / his identity. In
case of physical appearance of the deponent, the identity document can be
physically produced before the Court. For virtual appearance, the party must
email the identity document to the Court. In addition, the power of attorney or
the advocate, as the case may be, should identify the deponent.
100.Since the provisions of the Evidence Act, 1872 (now the Bharatiya
Sakshya Adhiniyam) are diluted by Section 14 of the Family Courts Act, the
Family Court need not expend much time in deciding on the admissibility of
the documents sought to be marked by the deponent. Further, since the
Family Courts are established for the purpose of speedy disposal of family
matters and to alleviate the strain and suffering of the parties, the Court need
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not insist on stringent compliance with Rules 7 and 8 of the Video
Conferencing Rules. Nevertheless, in respect of the parties appearing in video
conferencing, the advocates or power agents can produce the hard copy of the
documents sought to be marked by the party and the party can e-mail the soft
copy of the same to the Court with a carbon copy (CC) made to the other side
before the commencement of the Trial.
101.If during the cross-examination, the other side desires to confront a
party appearing through video conferencing with a certain document, the
same must be e-mailed to the party with a carbon copy (CC) made to the
Court. The hard copy of the said document must be produced to the Court by
the advocate or the power agent representing the party on behalf of whom the
cross-examination is conducted.
102.Moreover, though the Video Conferencing Rules make a reference
to the presence of a coordinator at the remote site (the place, other than the
Court, from which the party appearing in video conferencing participates in
judicial proceedings), the presence of the coordinator at the remote site is not
mandatory and can be dispensed with. Here, reference could be made to
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Clause Rule 3.1. of the Practice Directions- VC No. 1 which states:
“There shall be a Coordinator at the Court Site for
all hearings by Video-conference. At the Remote
Site, a Coordinator is mandatory only when a
witness or a person accused of an offence is to be
examined.”
103.Since recording of evidence of the parties before the Family Court
is not even remotely related to the examination of an accused or a witness to
an offence, the presence of the coordinator at the remote site is not required
and it is adequate if the party appearing through video conferencing is adept
in operating the platforms in which video conferencing takes place.
104.At this juncture, it is also pertinent to note that Clause 3.3 of the
Practice Directions- VC No. 1 only enumerates a list of preferable
coordinators of the remote site, and the same does not make it mandatory on
the Family Court to ensure the presence of such coordinators at the remote
site. It is to be borne in mind that the very reason for appointing the
coordinators, be it at the court site or remote site, is to ensure seamless video
conferencing. If ensuring the presence of the coordinator at the remote site is
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going to further add to the emotional, physical and financial agony of the
party, then the same is not mandatory and the respective party shall
coordinate with the coordinator at the court site so as to ensure seamless
video conferencing at the respective remote site. This interpretation is
accepted and affirmed in Clause 3.6. of the Practice Directions itself. This
view also finds acceptance in the judgment of another learned Single Judge of
this Court in G. Shrilakshmi Vs Anirudh Ramkumar, [C.R.P. Nos. 1994 &
89 of 2024 dated 18.10.2024].
105.Since, this Court has directed the Family Courts to dispense with
the presence of the coordinator in the remote site, the Family Courts shall
ensure that there is a coordinator present at the court site to enable seamless
video conferencing.
106.Further, if the deponent appearing through video conferencing is
not placed to operate the video conferencing technology by himself/herself, a
coordinator at remote site is mandatory and recourse can be taken to Clause
3.3. and 3.4 of the Practice Directions- VC No. 1 in this regard.
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107.On the conclusion of the evidence, the evidence that has been
deposed virtually should be signed by the power of attorney and attested by
the advocate who has been permitted to appear under Section 13 of the Act.
The deposition must state that the same was recorded with the party
appearing through video conferencing. The Court shall send an non-editable
copy of the deposition by e-mail to the deponent. The deponent shall take a
print out of the deposition and sign the same and thereafter, the deponent
should scan and send the deposition to the official e-mail ID of the concerned
Court within 72 hours of recording of deposition. The scan should be clear
and the signature should be legible.
108.The filing of the signed hard copy of the deposition can be done
either by the power agent or assisting advocate and if neither are available,
then it can be sent by registered post with acknowledgement due to the Court
with a covering letter stating the case number and date of deposition. On
receipt of the signed hard copy of the deposition, the Court must compare the
same with the soft copy and if the Court is satisfied that the contents of the
signed hard copy are same as that of the earlier sent soft copy, the Judge of
the Family Court may sign the deposition and endorse the same with the
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phrase: “verified and compared with the scanned copy and found to be
identical”.This procedure is applicable for both chief examination and cross
examination of the deponent.
109.The said procedure can also be adopted for the witnesses who seek
to appear virtually. However, the presence of the coordinator at the remote
site as stipulated in Clauses 3.1,3.3 and 3.4 of the Practice Directions- VC
No. 1 is mandatory for such witnesses.
B.Recording of depositions
110.In case, the parties appear via video conferencing, in order to avoid
any dispute as regards, the correctness of the evidence so recorded, a
procedure has to be evolved. The Video Conferencing Rules, prohibit the
recording of proceedings which take place through hybrid / video
conferencing mode. The prohibition operates on the parties and not on the
Court. It is possible that an unscrupulous litigant would make a statement or
admission, during the course of evidence and the same gets recorded by the
Court and is e-mailed to the deponent for signature. At that stage, the
deponent may plead that the recording by the Court does not reflect the actual
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tendering of evidence made by him or her. To avoid this situation and taking
into consideration the Video Conferencing Rules framed by this Court, this
Court is of the view that if the Family Court itself were to record the
deposition and place the recording in the file, it will prevent such conflicts.
This mode of recording of evidence is permissible by a mere scan of Rule
7(6) of the Madras High Court Video Conferencing Rules of 2020. If there is
no provision for a recording device, then the parties can provide the recording
device to the Court. The Rule contemplates such a situation as is clear from
Rule 7(10).
C. Hearing of the parties
111.Once the evidence of all the parties and relevant witnesses is
recorded, the Family Court proceeds to fix a date for hearing the parties on
the plaint/original petition. At the stage of hearing, the Family Court need not
insist on the appearance of the parties, if they have already obtained the leave
of the Court, to be represented by an advocate. However, if the Court is of the
opinion that the presence of a party is essential, then the Court may
specifically direct the party to appear before it. If any party so directed by the
Court finds himself/herself in circumstances impeding him/her from
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physically appearing before the Court, then such party may make an
application under Rule 4(1) of the Video Conferencing Rules. And the
procedure envisaged for disposing of such application under the head
“Recording of evidence” in this judgment must be followed by the Family
Court.
112.A separate application under Rule 4(1) need not be filed if a
similar application had already been moved and allowed at the stage of
recording of evidence and the circumstances justifying the making of such an
application continue to exist even at the time of hearing the parties. However,
in case of the latter, an oral mentioning by the advocate or the power agent is
necessary to notify the Court of the party’s appearance through video
conferencing. This may be done when the Court fixes the date for hearing the
parties on the paint/original petition. The Court must communicate the
hearing date and time and must verify the identity of the parties in the manner
as set out under the head “Recording of evidence” in this judgment vis-à-vis
the parties appearing in video conferencing. Further, the rules framed
regarding the presence of the coordinators at the remote site and court site
under the head “Recording of evidence” in this judgment shall apply at the
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stage of hearing the plaint/original petition/applications as well.
113.If the party appearing through video conferencing intends to cite
any authority or circulate any notes of arguments, a soft copy of the same
must be e-mailed to the official e-mail address of the Court and a carbon copy
of the same must be made to the other parties on the same day prior to the
hearing in accordance with Clause 7 of the Practice Directions. A hard copy
of the same must be submitted to the Court by the advocate or power agent of
the party on the day of hearing. On the other hand, in respect of the
authorities or notes of arguments submitted to the court by the advocate
representing a party at the time of hearing, a hard copy of the same must be
furnished to the other side forthwith.
114.To ensure that the video conferencing is conducted seamlessly, the
difficulties, if any, experienced in connectivity or otherwise may be brought
to the notice of the Court at the earliest by sending an email to the official
email address of the Court or by reaching out to the mobile number of the
court site coordinator, which has to be furnished to the party before the
commencement of the video conferencing in accordance with Clause 5.8 of
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the Practice Directions- VC No. 1. In order to save judicial time, such
difficulties may also be brought to the attention of the Court through the
advocate of the party or the power agent, as the case may be. The same
procedure may be followed at any stage of the proceeding.
115.Considering the fact that the video conferencing requires internet
connectivity and that internet connectivity may not always be stable, the
Court may not pass orders adversely affecting the litigants only on the ground
of absence due to poor internet connectivity or for the unforeseeable defects
in video conferencing or for the faults of the coordinator. Even for this very
reason, the impugned order in C.R.P.(PD).No.4227 of 2024 cannot be
sustained.
VII.Judgment and copy application
116.If any of the party/parties appeared through video conferencing
during the recording of evidence or hearing of the plaint/original petition, the
Judgment of the Court made under Section 17 of the Act shall specify that
such party so appeared in accordance with Clause 5.9 of the Practice
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Directions. Further, since the Family Court is directed under Rule 42 of the
Family Courts Rules to provide a copy of the judgment/order free of cost to
the litigants, the Court shall provide the same to their advocate or power
agent if their physical presence before the Family Court at the time of
rendering the judgment is made impossible. The Court must also e-mail a soft
copy of the judgment/order to such litigants who were not present at the
Court physically at the time of pronouncing of judgment.
117.This Court is also made aware that the Family Courts and the
Registry insist on the personal attendance of the parties for the purpose of
filing a copy application under the pretext of complying with Rule 43 of the
Family Courts Rules. Though Rule 43 directs the Court to issue interim
applications to a copy of every judgment/order free of cost to the parties, the
said Rule does not prohibit the Court from issuing the same to the advocate of
the parties. In fact, this Court in Togo Mukherjee Vs Sapna Mukherjee and
Anr, [(2002) 1 LW 356] held that the advocate who filed a vakalath on behalf
of the party can be permitted to file the copy application. However, if the
party is only represented by the power agent or if the party is neither
represented by the power agent nor a lawyer, the Court may issue such copy
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application to the party or the power agent, as the case may be, and permit
them to seek the assistance of a lawyer or his clerk to proceed with the copy
application.
VIII.Miscellaneous
118.This Court is also made aware that the Family Court insists on the
parties to withdraw any pending suits / petitions / applications as a
precondition to present a 13-B petition under the Hindu Marriage Act. This
practice could again be used by unscrupulous litigants to manoeuvre the
opposite party to withdraw the proceedings instituted by her / him. Therefore,
the Family Court must not insist on the withdrawal of the already instituted
proceedings as a prerequisite to take on file a 13-B petition. The already
instituted proceedings would be in suspended animation till the 13-B petition
is posted for hearing. On the day on which the 13-B petition is posted for
hearing, the suits / petitions / applications instituted prior to the 13-B petition
would also be posted for hearing. If the 13-B petition is allowed, the other
proceedings would stand closed. On the other hand, if the 13-B petition is
dismissed, the other proceedings would no longer be in suspended animation
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and can be proceeded in accordance with the law.
119.The Court also makes it clear that the presence of the advocate
must be recorded by the Family Court every time the advocate represents her
/ his client before the Family Court. In fact, in C.R.P.(PD).No.4227 of 2024,
on 19.07.2024, when the impugned order was passed, the counsel for the
petitioner was physically present before the Family Court. The said counsel
had been assisting the petitioner during the course of the proceedings. The
time difference between India and United States of America is 12 hours. The
petitioner had logged into the video conferencing and her counsel was
physically present at the Court to assist the Court. The learned VII Additional
Family Court Judge had dismissed her petition for the want of presence of the
petitioner even without taking into consideration that her counsel was present
and that she was not permitted into the virtual Court from the virtual lobby.
The petitioner cannot be penalised for the glitches that happened during
virtual hearing. In order to remedy such situations, it becomes necessary that
the presence of the advocate be recorded by the Court on every hearing when
they are present.
120.Further, though it was submitted before this Court that the
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advocates must be permitted to represent the parties at all the stages of the
proceeding, allowing the same would not be in alignment with the object of
the Family Courts Act. It is reminded that the Act attempts to regulate the
representation by advocates to prevent the proceedings from becoming
adversarial and to allow the Family Court to conduct the proceedings in
expeditious manner, attempting conciliation at all the stages. If the advocates
are permitted to appear at every stage right from the presentation of plaint,
the very purpose for which the Act was enacted would be defeated.
Therefore, the advocates can assist and represent the parties in a manner as
directed by this Court in this judgment.
121.With regard to time limit, though this Court restrains from fixing a
time limit for the proceedings before the Family Court, the Family Judge may
exercise her / his discretion to fast track the proceedings after taking into
account the peculiarities of the case before her / him.
122.Further, any person, on being faced with any other inconvenience,
a solution for which is not envisaged and dealt with under this judgment is
free to approach this Court by way of an application and seek appropriate
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relief.
123.Since the Mediation Rules are a decade old, the Registry shall
place it before the Rules Committee considering the development that had
taken place due to technology development.
124.The directions given so far as video conferencing are concerned,
they are a measure adopted to avoid the issues that the parties are facing
today. It is subject to modifications that may be made by My Lord, the
Hon’ble Chief Justice, as contemplated under the Madras High Court Video
Conferencing Rules, 2020.
IX.CONCLUSION:
125.Before I conclude, I have to place on record the excellent
assistance I received from the learned Amicus Curiae, the members of the Bar
and from Ms.Harshini Ranganathan, an Research Law Assistant of this Court.
126.The directions framed in this case are summarized below in the
form of a flow chart for better understanding:-
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C.R.P.(PD).No.4073 & 4227 of 2024Presentation of plaint/original petition drafted with the aid of an advocate before the Family Court
under Rule 5(ii) Family Courts Rules by the party/power agent. In case a power agent petition is filed
u/O. III R 1 CPC, it must be adjudicated first without ordering notice to the other side.
Taking on file of the plaint/original petition by the Family Court. Numbering of plaint/original petition
and serving of summons with the assistance of an advocate/advocate clerk.
Party/power agent may file an application for urgent interim relief. While determining the urgency of
the interim relief, the Court must be reasonable and sensitive to the concerns of the party. After issuing
notice to the other side, the Court must dispose of the application. The Court may also pass exparte
order if the circumstances so require.
The parties must be referred to counselling and later to mediation. If both the parties consent, the
parties can be directly referred to mediation without going through the process of counselling.
Parties must be referred to mediation under Section 9 of the Family Courts Act. Parties may appear in
person or in VC. In case of appearance in VC, prior notice must be given to the mediator and the other
side.
If, Mediation succeeds and a settlement is arrived at under Rule 35 of the Family Courts Rules, the
Court shall pass a judgment and decree in terms of the settlement. If Mediation fails either under Rule
27 or 36 of the Family Courts Rules, the matter is referred back to the Court.
The party/power agent may file an application to be represented by an advocate under Section 13 of
the Act r/w. Rule 41 of the Family Courts Rules. On being permitted, the advocate must file a vakalath
in accordance with OIII R 4 CPC. The presence of the advocate must be recorded when she/he is
present.
The party/power agent/advocate may file a written statement/application/counter.
In case the presence of the party during hearing of the application is required and the party is not able
to appear physically, the party/power agent/advocate may file an application to appear in VC. After
ordering notice to the other side, the application must be disposed of.
The party/power agent/advocate may file the proof affidavit. The recording of evidence of the
party/witness may be done physically/VC. If evidence is to be recorded in VC, an application must be
made and notice must be ordered to the other side. Party appearing in VC must be identified by the
advocate/power agent.
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At the time of hearing the plaint/original petition, the Court may hear the advocate or the party as the
case be. If the presence of the party at the time of hearing is necessary, the party may appear
physically/in VC.
A copy of the judgment/order of the Court must be given to the party/power agent free of cost. The
Court may also issue a copy of the judgment/order to the advocate of a party if the physical presence of
the party/power agent cannot be secured. In such cases, the Court must e-mail the judgment/order to
the concerned party.
The advocate of a party shall be permitted to file a copy application. In case, the party is not
represented by an advocate, the party/power agent can obtain the assistance of an advocate or his clerk
for filing the copy application.
127.To conclude, C.R.P.(PD).No.4073 of 2024 is ordered. The
Principal Family Court at Chennai shall number the application filed by the
parties for prosecuting the petition through power of attorney. It shall verify
the details as set forth above and grant the requested certified copies. No
costs.
128.C.R.P.(PD).No.4227 of 2024 is ordered. The order passed
dismissing the petition for default on 19.07.2024 in H.M.O.P.No.498 of 2024
is set aside. The Family Court on the production of web copy of this order,
shall issue fresh notice to the respondent / husband and grant him four (4)
weeks time to file a written statement / counter. The batta (process) and
notice can be taken by a Lawyer approved by the Court under Section 13 of
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the Family Courts Act, 1984, and the Court shall not proceed on the merits of
the case unless and until the respondent / husband has been put on notice. No
costs.
31.01.2025
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
To
1.The Principal Family Court, Chennai.
2.The Principal Family Court Judge, Chennai
incharge of VII Additional Family Court.
V.LAKSHMINARAYANAN, J.
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krk
C.R.P.(PD).Nos.4073 & 4227 of 2024
31.01.2025
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