A reasonable opportunity to defend the case is a fundamental principle of natural justice.

The petitioner herein is the respondent in HMOP No. 193 of 2002 on the file of Family Court, Coimbatore. The respondent/husband has filed the above HMOP under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 praying for dissolution of the marriage solemnised on 17-05-2000.

2. Due to misunderstanding, the petitioner herein stayed with her parents, later she left India to pursue her studies in United States of America. In the meanwhile, she has executed a registered power of attorney dated 14-12-2001 in favour of her father, who is representing this case. The respondent/husband has filed HMOP after she has left India. The court below issued summons to the petitioner herein directing her to appear before the court on 20-05-2002, which was received by her mother. On 20-05-2002, the petitioner's father filed an application under Order III Rule 2 and Section 151 of CPC seeking permission of the Court to defend the HMOP NO. 193 of 2002 on behalf of the petitioner. The said application was returned by the court below and the petitioner herein was set ex-parte on 20-05-2002 itself. The petitioner's father has re-presented the above petition on 21-05-2002 with an endorsement that the petitioner has executed a power of attorney in his favour and in virtue of the same the application has been filed. Again, the said application was returned by the family court relying upon the unreported Judgment of this Court in a Transfer CMP that the presence of the parties on each date of hearing is mandatory. Aggrieved by the same, the present revision is filed.

3. The point for consideration in this petition is whether the petitioner can take advantage of Order III Rule 1 or 2 of CPC or Section 132 of CPC?

4. Mr. Ramamoorthy, learned counsel appearing for the petitioner submitted that the lower court failed to take note of the prevailing circumstance that the petitioner has left India well before filing of HMOP No. 193 of 2002; that the petitioner herein has executed a registered power of attorney to defend all the court proceedings in favour of her father; that the family court ought to have granted permission to the petitioner's father to defend her case in virtue of the power of attorney; that the court below ought not to have returned the application filed by the petitioner's father under Order III Rule 2 and Section 151 of CPC; that the trial court ought not to have set the petitioner ex-parte on the first hearing itself despite an application filed by her father seeking permission of the court to defend the suit.

5. Mr. Sivagnanam, learned counsel appearing for the respondent argued that the power of attorney was executed by the petitioner only to manage her assets but not to contest the cases; that the petitioner cannot take advantage of the provisions of Order 3 Rule 1 and 2 of CPC or Section 132 of CPC; that under Section 10 (3) of the Family Court Act, the court is empowered to lay down its own procedures notwithstanding the provisions of Section 10 (1) (2) of the Family Courts Act and prayed for dismissal of the revision.

6. The learned counsel appearing for the petitioner relied on a decision of this Court reported in 1996-1-Law Weekly 222 (S. Venkataraman Vs. L. Vijayasaratha) wherein the Division Bench of this Court held that there is no bar for the paties to have assistance through counsel, however, it is the discretion of the family courts to allow legal assistance, such discretion may be exercised by the court in the interest of justice and after taking into consideration of the nature of the case and on the condition under which the parties are placed. The division bench further held that Section 13 of the Family Courts Act does not prescribe a total bar for representation by a legal practitioner which bar would itself be unconstitutional. However, the division bench held that the intentment of the legislature obviously was that the problems or grounds for matrimonial breakdown or dispute being essentially of a personal na