The Karnataka High Court has held that family courts cannot insist on the personal presence of parties at the time of presenting petitions before the family courts if they are represented by advocates acting as their authorised agent.
A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty held :
"Therefore, we hold that there is no legal basis for the practice adopted by some of the Family Courts in the State when they insist on personal presence of the petitioner or petitioners at the time of filing the cases. Their personal presence is not required when a petition is presented by an advocate as an authorized representative of the petitioner or petitioners. In the same way, when a notice of proceedings filed in the Family Court is served, on the returnable date, the Family Court cannot insist on personal presence of the respondent when the respondent enters appearance through a legal practitioner as an authorized agent."
The bench also held that personal presence was not necessary at the time of filing to seek divorce by mutual consent.
"When a joint petition is presented for divorce by mutual consent, both the husband and wife will be petitioners and therefore, the same principles which are laid down above will apply".
The bench referring to two judgments passed by the Karnataka high court and on consideration of the provisions of the Family Court Act as well as Civil Procedure Code said
"The legal position is crystal clear when a petition is filed in a family court, it can be presented in person or through agent by advocate acting as authorised agent. Therefore a litigant can file a petition in family court without remaining present through advocate acting as authorised agent. Same principle will apply to respondents."
Similarly, the court held that when a written complaint as contemplated by clause (a) of sub section 1 of section 190 of Criminal Procedure Code (CrPC) is filed and when the complainant is represented by the advocate the courts of magistrate cannot insist upon presence of complainant at the time of filing of the complaint.
The Court passed the order in a suo moto case taken to deal with the legal issues which arise during the days of limited functioning of the Courts.
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