IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 OP (FC).No. 1396 of 2011(R) --------------------------- OP.630/2009 of FAMILY COURT, KANNUR .................... (S): PETITIONER ------------------------------ V.K.RAJEEVAN, S/O.DAMODARAN, VADAKKEKUNDATHIL HOUSE, NEAR KAIRALI VAYANASALA, EDAKKAD, KANNUR DISTRICT, REPRESENTED BY P.A.HOLDER, V.K.SAVITHRI, D/O.KUNHIRAMAN, AGED 60 YEARS, NEAR KAIRALI VAYANASALA, EDAKKAD, KANNUR DISTRICT. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.ANIL.D.KAITHAKKAL RESPONDENT(S): --------------- K.SHIJI PREMAN, D/O.PREMAN, "SOUBHAGYA", MALIKAPARAMBU, EDAKKAD, P.O.EDAKKAD, KANNUR DISTRICT 670 643. ADV. SRI.M.V.AMARESAN FOR R1 SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(F.C.) No.1396 OF 2011 A P P E N D I X Petitioner's Exhibits : Ext.P1 : TRUE COPY OF ORIGINAL PETITION NO.630/2009 OF THE FAMILY COURT, KANNUR. Ext.P2 : TRUE COPY OF THE PETITION SEEKING PERMISSION TO CONDUCT THE CASE ON THE STRENGTH OF POWER OF ATTORNEY. Ext.P3 : TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER. Ext.P4 : TRUE COPY OF THE ORDER OF THE FAMILY COURT, KANNUR DATED 12.1.2011. (True copy) TGS K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- O.P.(FC) No.1396 of 2011 ----------------------------------------------- Dated 29th June, 2011. J U D G M E N T Joseph, J. Petitioner is the respondent in O.P.No.630 of 2009 on the file of the Family Court, Kannur, filed by the respondent, seeking a decree of dissolution of the marriage between petitioner and respondent. Briefly put the case of the petitioner is as follows : The petitioner appeared before the Family Court on 8.11.2010, as the case was posted for counselling. The petitioner is working in Oman and he came from Oman, spending Rs.50,000/-. The case was posted on 30.12.2010. On that day, he could not appear before the counsellor, as the case was posted before the court. It is stated that on the date of hearing, he filed an application to receive power of attorney, so as to conduct the case through power of attorney holder. Ext.P1 is the Original Petition filed, seeking dissolution of marriage. Ext.P2 is the application seeking permission to conduct the case through power of attorney holder. Ext.P3 is the power of attorney. By Ext.P4, the Family Court rejected the application seeking permission to conduct the case through OP(FC) 1396/11 2 power of attorney holder since it is a matrimonial case. 2. We heard learned counsel for the petitioner and learned counsel for the respondent. 3. Learned counsel for the petitioner would submit that if the petitioner's presence is necessary for counselling, he is prepared to come. According to the petitioner, the provision in the Civil Procedure Code is applicable to the Family Court also, and it is illegal to insist presence of the respondent in an Original Petition for divorce. It is stated in the Original Petition that the petitioner is ready to appear before the court as and when his presence is necessary for the trial or proceedings. 4. We find that there is merit in the contention raised by the petitioner. The right of the party to appear through a duly constituted agent, which is a right flowing from Order III Rule I Civil Procedure Code cannot be denied to him. Section 10 of the Family Courts Act also makes the provision in the C.P.C. applicable, unless it is in conflict with any specific provision. No doubt, Rule 7 of the Family Courts (Procedure) Rules, 1989, made by the High Court enables the Family Court, when the case is filed, to advise the party and to have OP(FC) 1396/11 3 discussion with him. But, here in this case, the petitioner is the respondent in the petition. Already it is pointed out that there was a session of counselling. We also record the submission of the learned counsel for the petitioner that the petitioner is prepared to appear before the Family Court, as and when directed. Without prejudice to the power of the Family Court to direct the appearance of the petitioner as and when necessary, we allow the Original Petition and set aside Ext.P4. The interlocutory application filed by the petitioner will stand allowed. We make it clear that this will be subject to the power of the Family Court to direct appearance of the petitioner in accordance with law, as and when it considers fit. This does not mean that we are commenting on the right of the power of attorney to give evidence as such. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs