Hon’ble Devendra Kumar Upadhyaya, J.—How justice sometimes tends to subjugate itself to the procedural law will be demonstrated by the facts of the case which are to follow.

2. Heard Sri Pankaj Kumar Tiwari, learned counsel for the petitioner and Sri Vivek Kumar Rai, learned counsel for respondent No. 2.

3. Marriage of the petitioner-husband with respondent No. 2-wife is said to have been solemnized on 24.9.2012 in accordance with Hindu-Sikh rights, rituals and customs. However, it appears that some serious differences between the parties have resulted in institution of various cases by them against each other.

4. The instant petition arises out of an order dated 24.8.2015, passed by the Additional Principal Judge, Family Court, Lucknow whereby the application made by the petitioner under Section 126 (2) of Cr.P.C.for setting aside the alleged ex parte interim maintenance order passed under Section 125 Cr.P.C., has been rejected not on the merits of the application but on the ground of maintainability for the reason that this application was not presented by the petitioner himself; rather it was presented by his father in whose favour power of attorney was executed by the petitioner. The Court below has observed in the impugned order that the application C-26,under Section 126 (2), Cr.P.C. was moved by the petitioner on 10.10.2013 stating therein that the order dated 29.5.2013 granting interim maintenance to the respondent No. 2 was an ex parte order and as such the same may be set-aside. The Court below has further observed that the petitioner never appeared in the Court and the application has been moved by his father through power of attorney and hence, the application is not maintainable. In support of the reasons given in the impugned order, learned Court below has cited judgment of Hon’ble Supreme Court in the case of T.C.Mathai and another v. District and Sessions Judge, Thiruvananthapuram, Kerala, (1999) 3 SCC 614. The learned Court below has also relied upon yet another judgment of High Court of Bombay in the case of Parvin Niwritti Sawant v. Nisha Parvin Sawant and another, 2007 (6) Mah LJ 536. It has further been observed by the Court below that the application C-26 was not presented by the petitioner by putting his appearance and further that affidavit filed in support of said application has also not been sworn in by the petitioner; rather the same has been sworn in by his father, the power of attorney and as such in view of provisions of Section 13 of Family Courts Act, 1984, application cannot be entertained.

5. According to the impugned order, Section 13 of the Family Courts Act provides that the parties to any proceedings under the said provision shall be personally present before the Family Court, however in case the Family Court finds it appropriate, it may appoint an amicus to seek assistance of a legal expert. The Court below also states that provision of Section 13 of Family Courts Act nowhere provides that in absence of the party concerned, any application can be moved by the power of attorney holder of the party. The Court below, thus, has rejected the application moved by the petitioner for the reasons disclosed therein which have been discussed above.

6. During pendency of these proceedings before this Court, the parties have come to terms and now intend to settle the dispute outside the Court amongst themselves. A draft settlement agreement has also been prepared by the parties, a copy of which has been brought to the notice of the Court to be taken on record. The said draft settlement agreement has been signed by learned counsel appearing before this Court for the respective parties and is taken on record of this case.

7. Even after bearing all the good intentions of settling the dispute outside the Court amicably, the parties now find it difficult to get the matter settled for two reasons; (1) that the learned Family Court in view of provisions of Section 13 of Family Courts Act, would not