K.M. GEORGE Vs. SHEELA

JUDGEMENT

(1.) Appellant challenges the order dated 19th August, 2008 passed by the Family Court, Thrissur deciding the preliminary issue of maintainability raised by the respondent in O.P. No. 1290/2005 against him. The appellant filed O.P. No. 1290/2005 seeking a declaration that the respondent is not his legally wedded wife. He also sought consequential reliefs. In the said proceedings the petitioner was represented by his power of attorney holder, his brother. Maintainability of the proceedings through a power of attorney holder was raised by the respondent before the Family Court and later, before this court in W.P. (C) No. 12189/2008. This Court by judgment dated 9th of June, 2008, directed the Family Court to decide the maintainability as a preliminary issue. Accordingly, the Family Court heard the parties and passed order dated 19th August, 2008 holding that the O.P. being a case for declaring the marital status, presence of the appellant in person is highly essential for counselling purposes and that he failed to attend the counselling. It is also held that the power of attorney holder waited to proceed with the case without completing the counselling. The Family Court also held that the appellant did not approach the court with clean hands. For these reasons, the Family Court held that the power of attorney holder was not entitled to continue the prosecution and for that reason the petition was dismissed, which is under challenge in this appeal.

(2.) The counsel appearing for the appellant referred to the provisions of the Family Courts Act, Family Courts (Procedure) Rules, the Family Courts (Kerala) Rules and also the provisions of the Code of Civil Procedure. She also made, reference to a Division Bench decision of this court in Mukundan Naveen v. Anjalika Dinesh, 2011 3 KerLT 175 wherein according to her, a similar issue has been decided in favour of the appellant. On the other hand, the learned counsel for the respondent contended that in the nature of the controversy that is arising for adjudication, both for counselling and also for the purpose of evidence, the presence of the appellant in person is necessary to. It is stated that to avoid the presence of the appellant, the proceedings were instituted through the power of attorney holder. He also contended that, as rightly found by the Family Court, the petition was instituted suppressing various material facts. Therefore, according to him, the Family Court was justified in dismissing the petition.

(3.) We have considered the rival submissions and also gone through the statutory provisions as well as the impugned order. Since the very issue of maintainability of a similar proceedings filed through a power of attorney holder was considered by a Division Bench of this Court in Mukundan Naveen v. Anjalika Dinesh, 2011 3 KerLT 175 , we do not think it necessary to refer to all the statutory provisions once again. This was also a case where the Family Court declined to entertain a petition filed through a power of attorney holder. In the above decision, the Division Bench, after making reference to all the statutory provision and also the relevant precedents, held that it is open to a party to present a petition either in person or through a power of attorney holder. Therefore, the right of the party to be represented by his power of attorney holder in a proceedings before the Family Court has already been recognized by this Court in the decision referred above. However, this Court has clarified that permitting a party to be represented through his power of attorney holder will not detract from the power of the court to insist on the personal appearance of the party concerned at any subsequent stage of the proceedings for counselling or for evidence.