(Civil Appellate Jurisdiction)
Md Abdul Hafiz J
Mizanur Rahman Howlader (Md)…….
……….Defendant-Appellant-Petitioner
VS
Mehnaz Karim ………….. Plaintiff-Respondent-Opposite-Party
Judgment
August 17th, 2016
Family Courts Ordinance (XVIII of 1985)
Section 21
There is no provision in the Ordinance, which authorize the appearance through an agent in a family suit apart from a pardah-nashin lady. ……………..(8)
Md Toufiq Inam. Advocate-For the Defendant-Appellant-Petitioner.
Subrata Chowdhury. Advocat-For the Plaintiff-Respondent-Opposite-Party.
Judgment
This Rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 25-11-2014 passed by the learned Additional District Judge Bankruptcy Court, Dhaka in family Appeal No. 160 of 2013 dismissing the Appeal affirming those dated 7-11-2013 passed by the learned 5th Additional Assistant Judge and Family Court, 15th Court, Dhaka in family Suit No. 597 of 2012 adjourning the suit and asking the Defendant to appear in person should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. The opposite party as Plaintiff instituted the Family Suit being No. 597 of 2012 under the Guardian and Wards Act, 1980 read with Section 5(E) of the Family Court Ordinance, 1985 before the 5th Additional Assistant Judge an Family Court, 15th Court, Dhaka, seeking for the custody of her minor son Shaian Rahman Howlader. The Petitioner who lives in Australia as Defendant contested the instant suit through his own brother as agent by way of executing a Power of Attorney in his favour and filed a written statement through his Attorney denying all the material allegations and prayed for dismissal of the suit and also filed an application under Section 16A of the Family Court Ordinance, 1985 praying for an interim order to restrain the Plaintiff from taking the minor son abroad. The Plaintiff opposite party challenged the Power of Attorney claiming that empowering Petitioner’s full brother for conducting the instant family suit on the Petitioner’s behalf by way of a Power of Attorney has no legal value and thereby not maintainable in the eye of law. In consequence on 7-11-2013 the Trial Court adjourned the family suit and asked the Defendant to appear in person before the Trial Court.
3. Being aggrieved, the Defendant as appellant preferred an appeal before the court of learned District Judge, Dhaka being Family Appear No. 160 of 2013 which was dismissed and thus the Petitioner moved this application under Section 115( I) of the Code of Civil Procedure and obtained this Rule.
4. Mr Md Toufiq lnam, learned Advocate for the Defendant-Petitioner submits that since there is no law debarring any of the parties to contest and/or conduct the suit through his/ her duly constituted Attorney, the Courts below committed serious error in adjourning the case asking the executor of the Power of Attorney to appear before the Court in person. Mr Toufiq further submits that since the Petitioner (Defendant) being the citizen of Australia is currently residing therein the Courts below committed illegality upon denying his legal Attorney to peruse the proceedings on his behalf and, as such, the impugned judgment and order is liable to be set-aside.
5. Mr Subrata Chowdhury, learned Advocate for the Plaintiff-Opposite Party submits that the aforesaid Family Suit has been filed by the Plaintiff-Opposite Party claiming for the sole guardianship and custody of a minor child in response to the claim of the Opposite Party, the Defendant-Petitioner denied the entire material allegation brought upon him and further sought for the sole guardianship and custody of the same child against the Plaintiff-Opposite Party and such a family matter with the highest gravity with regards to determining the guardianship of a minor which means the entire future of the minor child cannot be resolved or contested without the physical appearance of any party just through an agent by way of Power of Attorney. The Opposite Party i.e. mother of the minor being Plaintiff has always been present in person before the learned Court in each and every step of the suit. Whereas, the Petitioner being father of the minor was not even bothered to appear before the Court at any point of time in order to establish his guardianship; rather from abroad just through a General Power of Attorney applied to contest the suit and such refers to nothing but frivolity and silliness in the part of the Petitioner towards the seriousness and gravity of the matter. Mr Subrata further submits that it is important to note that the alleged Power of Attorney produced before the learned Court referring the participation of the Petitioner in the aforesaid Family Suit has been executed by the Petitioner as well as his other family members for the purpose of maintaining the family property and business and any subsequent legal matters may arise out of such property and business. It is specifically mentioned in the alleged Power of Attorney that, any legal proceedings in terms of labour, civil, criminal, certificate and family regarding the specified family property and business can be dealt by the brother of the Petitioner, but such in no way empowering to the said brother of the Petitioner to deal with the guardianship of the minor in the said family suit. Mr Subrata further submits, the subject matter of the alleged Power of Attorney is absolutely the family property and business which has no relation by any means with the guardianship of the minor and therefore, the alleged Power of Attorney in relation to family property and business cannot be used in the instant matter to determine the sole guardianship and custody of the minor. Mr Subrata then submits that it is established principle of law that, in terms of suit under the Family Court Ordinance, 1985, there is no applicability of the Code of Civil Procedure except Section 10 and 11 of the said Code. Section 21 of the Family Court Ordinance, 1985, clearly states “Appearance through agents- if a person required under this Ordinance to appear before a Family Court, otherwise than as a witness, is a Pardahnashin lady, the Family Court may permit her to be represented by a duly authorized agent.” Mr Subrata also submits that all the proceedings of a Family Suit must be dealt in accordance with the Family Court Ordinance, 1985 and the above mentioned provision of law clearly authorizing a pardahnashin lady to be appeared by her agent in a Family Suit not anyone else by any means. Mr Subrata submits that Rule-3 of the Power of Attorney Rules, 2015 vide SRO No.234-Ain/2015, clearly explain the necessary specifications of a power of attorney, states as follows:
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6. Mr Subrata further submits that the alleged Power of Attorney produced by the Petitioner is in no way complied with the provided specification as stated above. The said Power of Attorney has all the required specifications regarding the family property, business and their maintenance but no mentioning at all about any issue whatsoever with regards to the guardianship and custody of the minor. Mr Subrata then submits that the learned Trial Court in the most rightful manner applied its judicial mind in the proper manner ordered the personal appearance of the Petitioner in order to determine the guardianship and custody of the minor in question.
7. Heard the learned Advocates and perused the record.
8. The opposite party as plaintiff instituted the Family Suit seeking for the custody of her minor son and the Petitioner as defendant contested the same through his own brother as agent by way of executing a Power of Attorney in his favour. The Plaintiff-Opposite Party challenged the said Power of Attorney claiming that empowering Petitioner’s full brother for conducting the instant Family Suit on the Petitioner’s behalf by way of a Power of Attorney has no legal value and thereby not maintainable in the eye of law. Now the only question whether Power of Attorney is applicable in the Family Suit or not. Section 21 of the Family Court Ordinance 1985 clearly states “Appearance through agents if a person required under this Ordinance to appear before a Family Court, otherwise than as a witness, is a pardahnashin lady, the family Court may permit her to be represented by a duly authorized agent.”
So, there is no provision in the Family Court Ordinance, 1985, which authorize the appearance through an agent in a Family Suit apart from a pardahnashin lady. Such a Family Suit cannot be resolved without the physical appearance of minor’s father and by way of Power of Attorney cannot empower anyone in the legal manner to contest the Family Suit on his behalf. I find no substance in the Rule.
9. In the result, the Rule is discharged without any order as to costs.
10. The impugned Judgment and Order dated 25-11-2014 passed by the learned Additional District Judge. Bankruptcy Court, Dhaka in family Appeal No. 160 of 2013 dismissing the appeal and affirming those dated 7-11-2013 passed by the learned 5th Additional Assistant Judge and Family Court, 15th Court, Dhaka in Family Suit No. 597 of 2012 is hereby up-held.
