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BOMBAY HIGH COURT
Dalvi R.S. (Mrs.), J.
Neelam Dadasaheb Shewale —Petitioner
versus
Dadasaheb Bandu Shewale —Respondent
Writ Petition No. 8954 of 2009
Decided on 17.2.2010
For the Petitioner:Milind N. Jadhav i/b Sagar G. Talekar, Advocates.
For the Respondent:R.T. Lalwani, Advocate.
IMPORTANT POINT
Constituted Attorneys cannot represent parties in proceedings before Family Court.
Headnote:Marriage Act, 1955—Section 13—Civil Procedure Code, 1908—Order III, Rule 1—Representation by legal practitioner in Family Court—General law of procedure under Order Ill, Rule 1 as also special laws contained in Bar Councils Act and Bombay Pleaders Act would apply even in a Family Court—If constituted Attorneys of all parties are allowed to appear, Court would be overrun by any number of unqualified, un-enrolled persons—Since Civil Procedure Code would generally apply to a Family Court under Section 10 of Act, restraint upon appearance under Order III of Code must hold good— Personal appearance of parties is inevitable to comply with mandatory provisions of Family Act— Though authorized agent, who is not a legal practitioner can file a petition, he can only prosecution or defend it or represent party only until Family Court passes an order directing party to appear in person depending upon the facts and stage of case—Impugned order upheld—Petition dismissed. (Paras 10 to 16)
AIR 1955 Bombay 262: AIR 2003 Madras 138: AIR 2005 Guj. 244—Relied on.
Result: Petition dismissed.
Dalvi R.S. (Mrs.), J.—This writ petition challenges three interim orders passed in MJ Petition No. A1633/97 which was for enhancement of maintenance under 25(2) of the Hindu Marriage Act.
2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.
3. Two orders are passed upon three applications of the parties.
4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh Petition filed by the wife after divorce.
5. The Advocate on behalf of the wife argued that the separate Petition only should have been filed. Both these reliefs permanent and interim are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.
6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.
7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.
8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.
9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the Court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.
10. The legal right of a party in Family Court to be represented by her constituted attorney in place of her advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curiae to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She
