Madras High Court Sets Aside Family Court Return Order | Allows Representation Through Power Of Attorney | Holds Procedural Defects Curable Under Order III CPC
Sanchayita Lahkar
The High Court of Madras Single Bench of Justice P.B. Balaji set aside an order of return issued by the VII Additional Family Court, Chennai, and allowed a party to be represented by a duly authorised Power of Attorney holder. The Court directed that the petitioner shall be permitted to proceed with the representation subject to the proper adjudication and stamping of the Power of Attorney. The directive was issued after observing that procedural lapses should not obstruct the administration of substantial justice and that the Family Court had failed to assign any reasons for rejecting the petition.
The matter arose from an order of return dated 21.06.2024 issued by the VII Additional Family Court, Chennai, in I.A.SR. No.6201 of 2024 in O.P. No.3494 of 2023. The original petition had been filed by the respondent seeking dissolution of marriage with the petitioner. In response, the petitioner, who was residing abroad, filed an application under Order III Rule 2 of the Code of Civil Procedure, 1908, seeking permission to be represented by his Power of Attorney agent, his mother.
The Family Court returned the application with a single-line remark: "How this petition maintainable. Hence returned. Time." This prompted the petitioner to approach the High Court under Article 227 of the Constitution of India, challenging the return order and seeking permission to be represented through the appointed agent.
The petitioner contended that the Family Court's action in returning the petition without assigning any reasoning was arbitrary and unsustainable. He argued that courts are required to record reasons for holding a petition non-maintainable, and returning it summarily without such reasons denied the petitioner an opportunity to address any curable defects.
Further, the counsel stated that both parties to the matrimonial proceedings were residing abroad. The petitioner resided in the United Kingdom and had executed a Power of Attorney before the Consular High Commission of India in the UK on 21.05.2024. The interlocutory application seeking permission was filed on 30.05.2024, and a formal petition was submitted on 06.06.2024, well within the three-month statutory period for adjudication.
Citing precedent, the petitioner’s counsel relied on the Supreme Court’s judgement in Malaysian Airlines Systems BHD vs STIC Travels (P) Ltd, (2001) 1 SCC 451, which clarified that if a document is produced within three months of execution, it can be regularised without penalty by collecting stamp duty. If submitted beyond the period, adjudication could still occur with penalty.
Accordingly, the counsel argued that the Family Court ought to have impounded the document if it found it insufficiently stamped instead of rejecting the application at the threshold. He also submitted that the application was filed with the original Power of Attorney, and the petitioner's mother, as Power Agent, was competent to act on his behalf.
In opposition, learned counsel for the respondent submitted that the petitioner failed to comply with the procedural mandates laid down in prior judicial pronouncements. He argued that no affidavit had been filed by the principal as required under Order III Rule 1 CPC, and the Power of Attorney itself was executed on plain bond paper without adjudication by the Sub-Registrar.
He relied on the High Court's judgement in Nanda Kishore Kolluru vs Madhulika Maddipudi (CRP (PD) Nos. 4073 & 4227 of 2024, dated 31.01.2025), where the Court held that Power of Attorney executed abroad must either be adjudicated by the competent authority or be notarised abroad with a certificate confirming the jurisdiction and authenticity. He pointed out that the Power of Attorney submitted by the petitioner did not comply with these criteria, rendering it invalid.
The High Court recorded that both parties resided outside India and that the Power of Attorney was executed by the petitioner before the Consular High Commission of India in the United Kingdom. It stated "The Power of Attorney is not on requisite non-judicial stamp paper also. The said power of attorney is attested by two independent witnesses apart from being executed before the Consular High Commission of India."
It further stated, "The Family Court ought to have given reasons for finding the petition to be not maintainable, warranting return of the same. The petitioner who has filed this Application has been taken by surprise and is not in a position to even ascertain as to why this petition is held to be not maintainable."
Referring to the three-month period prescribed under the Indian Stamp Act, the Court held that the Power of Attorney was filed within the permissible time frame and thus could still be adjudicated without penalty. It recorded, "The Court ought to have specifically put the petitioner on notice about the same. Therefore, the petitioner cannot be found fault with for not adjudicating the Power of Attorney, within the statutory period of three months."
The Court acknowledged that certain procedural lapses had occurred, such as failure to submit affidavits by both the principal and the Power Agent as required under Nanda Kishore Kolluru. However, it stated, "Again these are defects which are certainly curable."
The Court reiterated the principles laid down by the Supreme Court in Malaysian Airlines, stating, "Stamp duty payable, can always be collected even at a later point of time when the document is tendered in evidence." It also noted that the Power of Attorney was limited to representing the petitioner in the matrimonial proceedings and did not involve any property rights.
The High Court set aside the Family Court's return order dated 21.06.2024. It directed the petitioner to adjudicate the Power of Attorney before the competent Sub-Registrar within four weeks from the receipt of the order. The Court recorded:
"The Sub-Registrar authority shall not put delay against the petitioner in seeking adjudication, considering that the Power of Attorney was filed before the Family Court well within the period of three months within which should have been adjudicated. No penalty shall also be levied."
The Court further stated: "On such adjudication of the Power of Attorney, the petitioner shall represent the petition, along with the affidavit of the Principal, that is the petitioner, as directed by this Court in Nanda Kishore Kolluru’s case."
Upon compliance with these conditions, the Family Court was directed to permit the petitioner's mother to represent him as Power Agent.
The Registry was instructed to return the original Power of Attorney and permission petition to the counsel for the petitioner, upon obtaining due acknowledgment. The connected Miscellaneous Petition was closed with no order as to costs.
Advocates Representing the Parties:
For the Petitioner: Mr. A.V. Arun, Advocate for Ms. M. Abinu Monisha
For the Respondent: Mr. Suchit Anant Palande, Advocate
Case Title: Prasanna Subbiah Rep. By his Power Agent, Kalyani vs Divya Muthiah
Case Number: CRP. PD. No.2617 of 2024 and CMP. No.13757 of 2024
Bench: Justice P.B. Balaji
