IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5529 of 2005(G)
1. PUTHIYAPURAYILO ABDUL SALAM,
... Petitioner
Vs
1. P.P.MARIYUMMA, AGED 31 YEARS,
... Respondent
2. MUHAMMED SULTHAN, 11 YEARS (MINOR).
3. SHAIK, 8 YEARS, (MINOR).
4. AFARA, 4 YEARS, (MINOR),
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.M.SASINDRAN
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :11/12/2006
O R D E R
K.A.ABDUL GAFOOR &
K.R. UDAYABHANU, JJ.
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W.P.C.NO. 5529 OF 2005
============================
DATED THIS THE 11th Day of December 2006
JUDGMENT
Abdul Gafoor,J.
A petition was filed before the Family Court by the husband
represented by his father, the power of attorney holder to set
aside the ex parte order and to prosecute the petition
representing through the power of attorney holder. The reason
for dismissal of the petition is that “the petitioner is not at all
having any locus standi to file either an application to
permit him to represent the counter petitioner on the
strength of a power of attorney or to pray for setting
aside the ex parte order passed against the counter
petitioner in M.C.No.443/03”. When the party was away
abroad, necessarily his duly constituted power of attorney holder
can represent him for the purpose of prosecuting the case and to
WPC.5529/2005 -2-
seek to set aside the ex parte order. Those should have to be
decided on merit. In case, the presence of the husband is
required for counselling or conciliation, necessarily at that time
his presence can be insisted.
2. Permission to be represented in a suit by a duly
consiuted power of attorney does not disable in any manner, the
court to pursue efforts for settlement of a case as provided in
Section 9 of the Family Courts Act 1984. Of course, in terms of
Section 13 no party shall be entitled as of right to be
represented by a legal practitioner. Right to be represented by a
legal practitioner in a case and to be represented to prosecute or
defend a case through a power of attorney holder when the
incumbent is out of India, are different. The respondent has no
case that the father of her husband, the duly constituted power
of attorney, is a legal practitioner. In case the
petitioner/husband does not appear in person for settlement
talk or conciliation, upon direction by the Family Court or fails to
attend counselling on the dates notified by the counsellor,
nothing prevents the court to take action against him on such
default as provided in Rule 25 of the Family Courts (Kerala)
WPC.5529/2005 -3-
Rules 1989.
On the aforesaid reason, Ext.P2 is set aside and the Family
Court is directed to consider both the applications on merit
afresh on payment of Rs.25,000/- towards the maintenance
accrued to the respondent within a period of one month from
today. The writ petition is disposed of accordingly.
K.A.ABDUL GAFOOR
JUDGE
K.R.UDAYABHANU,
JUDGE
ks.