IN
THE COURT OF THE PRINCIPAL JUDGE FAMILY COURTS, JABALPUR (MADHYA PRADESH)
MATRIMONIAL
CASE NO. _______ OF 2017
Prashant Bhatnagar,
Aged
about 33 years,
S/o
Late Mr. R. B. Bhatnagar,
R/o
43-B, Awanti Vihar,
Ram
Nagar, Rampur,
Jabalpur
(Madhya Pradesh)
Vodafone
: 9713026813 _______ PETITIONER;
VERSUS
Mrs. Sheetal Shrivastava,
Aged
about 27 years,
D/o
Mrs. Nanda & Mr. Gopal Shrivastava,
W/o
Mr. Prashant Bhatnagar,
R/o
Plot No. 103, Jambudeep Nagar,
Ayodhya
Nagar,
Nagpur
(Maharashtra) _______ RESPONDENT.
PETITION
UNDER SECTION 9 OF THE HINDU MARRIAGE ACT, 1955 (ACT NO. 25 OF 1955).
The Petitioner, named above, MOST RESPECTFULLY SUBMITTS AS UNDER:-
1. That the petitioner was married to the respondent on 23.11.2011 as per Hindu rites/customs at _______ Jabalpur within the jurisdiction of this Court and the said marriage is still existing. They are of age above 21 years. The parties to this present petition are both by religion and faith Hindus and The affidavits of petitioner to this effect duly attested are attached. There are only one kid out of this wedlock viz Mohish Bhatnagar, who was born in the year 2012 at Shree Radhakrishna Hospital & Research Institute, (Multi Speciality Hospital), East Wardhaman Nagar, Nagpur- 440 008 (Maharashtra), Phone : +91-712-2790572 +91-712-2680582, Email : radhakrishnahospital56@gmail.com. Petitioner daughter Ms. Mohish Bhatnagar, is aged about 5 years and studying in Class I in e-pathshala, Outer Ring Road,, Umred Rd, Dighori, Nagpur- 441 204, (Maharashtra), Phone : 0712 645 2061.
2. That the parties to the petition were Hindu by religion at the time of marriage and they continued to be so at the time of filing the present petition. That after the marriage both the parties lived together and cohabited with each other as husband and wife at the residence of the first party. The said marriage was the arrange marriage and was solemnized as per the sweet will of both the parties and the parents of both the parties had given their consent for the said marriage of both the parties. Hence no any dowry was taken or given by either party in the said marriage. The petitioner and his wife lived last together at Bhopal.
3. That the status, age and place of residence of the parties to this petition before marriage and at the time of filing of the present petition were/are as follows:
PETITIONER /
HUSBAND
Status Before Marriage
|
Age
|
Place of Residence
|
At the time of filing the petition
|
Age
|
Place of Residence
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
Hindu Bachelor
|
27
|
G-1/1, Panchsheel Nagar, Gwarighat Road,
Jabalpur
(Madhya Pradesh)
|
Hindu Married
|
33
|
Flat
No. F-1, Vishal Towers,
Near
Danish Kunj Square, Kolar Road,
Bhopal
(Madhya Pradesh)
|
RESPONDENT/ WIFE
Status Before Marriage
|
Age
|
Place of Residence
|
At the time of filing the petition
|
Age
|
Place of Residence
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
Hindu Virgin
|
21
|
Plot
No. 103, Jambudeep Nagar,
Ayodhya
Nagar,
Nagpur
(Maharashtra)
|
Hindu Married
|
27
|
Plot
No. 103, Jambudeep Nagar,
Ayodhya
Nagar,
Nagpur
(Maharashtra)
|
4. That, in the month of February, 2016 last the respondent went to her elder brother’s (Mr. Anoop Shrivastava’s) house at Baroda (Gujarat) to celebrate the birth of ____(son of respondent’s brother Mr. Anoop Shrivastava). While going to Baroda, she took away all her cloths, jewelry, & all her testimonials and even the “Jhula” of Ms. Mohish Bhatnagar. She gave word to return within 15 days, but she did not abide by her word and has not returned so far.
5. That the petitioner went to his father-in-law’s house at Nagpur to bring the respondent, a number of times, but on one pretext or the other, she declined to come along with the petitioner to his house. On an occasion petitioner accompanied one of his friend Mr. Kapil Datt Sharma to mediate the matter but nothing positive result found. Petitioner than only came to know that the respondent is serving Insurance Incharge in a Vehicle showroom named as Grace Toyota, Kamptee Road, National Highway No. 7, Opposite All India Radio, Nagpur - 441 002, (Maharashtra), Phone : 0712 - 264 8180, and no more interested to live/cohabitate with the petitioner as petitioner’s mother was living with petitioner. Petitioner mother Mrs. ____ Bhatnagar, who was a Government Servant and serving as a Assistant Grade –I, in Hon’ble High Court of Madhya Pradesh, Principal Seat at Jabalpur and retired in the year_______ after attaining the age of superannuation, used to visit frequently at Bhopal. That is only reason behind the respondent’s keeping herself away from petitioner.
6. That lastly the
petitioner went to the house of the respondent’s father at Nagpur on _______
and asked the respondent to return with him, but she refused to come.
7. That the respondent deserted the petitioner or/and has withdrawn from his company without any reasonable or lawful excuse. Hence the necessity for the petition arose.
8. The respondent ever since the marriage did not pull on together being of different tastes habits, ideas, and bearing and so being completely different nature and temperament and could never adjust themselves till now and so had no love nor heart for petitioner and she is not going to reconcile between them in future.
9. That, the
parties to the present petition lived together as husband and wife till __th
February 2016 and thereafter have been living separately on account of
difference due to one reason or the other and there is every possibility of
reconciliation between the parties.
10. That, as stated above, the
above named parties are living separately since __th February, 2016 and there
is a chance of living together or any other reconciliation between the parties
and as such petitioner is ready for restitution of his conjugal rights of his
own free will and consent. The Cause of action accrued to petitioner in the
month of April, 2016 within the jurisdiction of this Hon’ble Court at Jabalpur
when their guardians, relatives and well-wishers made several attempts to sort
out the differences in between them but could not succeed
and it continues to accrue from day to day till the respondent comes back to
the home of the petitioner and resumes his company. That
the marriage was solemnized at Jabalpur therefore this Hon’ble Court is having
territorial jurisdiction under sub-section (i), of Section 19 of The Hindu
Marriage Act, 1955 (Act No. 25 of 1955) to
adjudicate.
11. That except
as hereunder stated there were no other proceedings between parties.
12. That the
above petition is bona fide and not presented in collusion between the parties.
13. That there
is every legal ground in granting the relief.
14. That there
is no previous proceeding with regard to the marriage of the parties.
15. That, there
is no improper or unreasonable delay in filing the present petition.
16. That, the
prescribed court fee has already been affixed on the petition.
17. Petitioners rely on and file documents as
per list. Petitioners will rely on and file more documents as and when
necessary.
An affidavit in
support of this petition is being filed herewith.
PRAYER
That the petitioner claims and prays:
(a) That a decree for the restitution of conjugal rights be passed in favour of the petitioner against the respondent.
(b) Any other relief or reliefs which the court may deem proper under the circumstances be also awarded to the petitioner.
PLACE : JABALPUR PETITIONER
DATE : 09.05.2017 ADVOCATE FOR PETITIONER
VERIFICATION
I, Prashant
Bhatnagar, Aged about 33 years, S/o Late Mr. R. B. Bhatnagar, R/o Flat
No. F-1, Vishal Towers, Near Danish Kunj Square, Kolar Road, Bhopal (Madhya
Pradesh) Also Residing at 43-B, Awanti Vihar, Ram Nagar, Rampur, Jabalpur
(Madhya Pradesh), Vodafone : 9713026813, do hereby
solemnly affirm and say as follows: I am the petitioner above-named and I know
and I have made ourselves acquainted with the facts and circumstances of this
case. The statements in paragraphs 1 to end are true to our knowledge and
belief. I sign this verification on this 09th day of May, 2017 at
the Court Premises at Jabalpur.
PETITIONER
IN
THE COURT OF THE PRINCIPAL JUDGE FAMILY COURTS, JABALPUR (MADHYA PRADESH)
MATRIMONIAL
CASE NO. _______ OF 2017
Prashant Bhatnagar _______ PETITIONER;
VERSUS
Mrs. Sheetal Shrivastava _______ RESPONDENT.
AFFIDAVIT
I,
Prashant Bhatnagar, Aged about 33 years,
S/o Late Mr. R. B. Bhatnagar, R/o 43-B, Awanti Vihar, Ram Nagar, Rampur,
Jabalpur (Madhya Pradesh), Vodafone : 9713026813, the
above named deponent, solemnly affirm and state on oath as under:
1. That we are the Petitioner in the above mentioned Petition For A
Decree For Restitution Of Conjugal Rights Under Section 9 Of The Hindu Marriage
Act, 1955 (Act No. 25 of 1955) and are
fully conversant with the facts deposed to in the Petition.
2. That the contents of paragraphs 1 to end of the accompanying
petition are true to my personal knowledge and the contents of paragraphs are
based on legal advice, which I believe to be true. No material has been
concealed and no part is false.
3. That the Annexures to the accompanying petition are true copies of
the originals and I have compared the said Annexures with their respective
originals and certify them to be true copies thereof.
PLACE : JABALPUR
DATED : 09.05.2017 DEPONENT
VERIFICATION
I, PRASHANT BHATNAGAR, the above named deponent do hereby verify
on oath that the contents of the affidavit above are true to my personal
knowledge and nothing material has been concealed or falsely stated. Verified
at Jabalpur this 09th day of May, 2017.
DEPONENT
IN
THE COURT OF THE PRINCIPAL JUDGE FAMILY COURTS, JABALPUR (MADHYA PRADESH)
MATRIMONIAL
CASE NO. _______ OF 2017
Prashant Bhatnagar _______ PETITIONER;
VERSUS
Mrs. Sheetal Shrivastava _______ RESPONDENT.
LIST OF DOCUMENTS
S.No
|
Description
of document
|
Date of
document
|
Original copy
|
Number of
page
|
1.
|
Xerox Copy
|
01
|
||
2.
|
.…do….
|
01
|
||
3.
|
Wedding card
|
23.11.2011
|
.…do….
|
02
|
4.
|
.…do….
|
01
|
||
5.
|
Wedding
Photographs
|
|
Original
|
02
|
PLACE : JABALPUR
DATE : 09.05.2017 ADVOCATE FOR PETITIONER
IN
THE COURT OF THE PRINCIPAL JUDGE FAMILY COURTS, JABALPUR (MADHYA PRADESH)
MATRIMONIAL
CASE NO. _______ OF 2017
Prashant Bhatnagar _______ PETITIONER;
VERSUS
Mrs. Sheetal Shrivastava _______ RESPONDENT.
APPLICATION
UNDER RULE 9 OF THE FAMILY COURTS (COURT) RULES, 1988 SEEKIING
PERMISSION FOR REPRESENTATION BY A LAWYER
Petitioner named above most humbly and respectfully begs to submit
as under :
1.
Petitioners have filed this petitioner for a Decree for restitution
of Conjugal rights under the provisions of Section 9 Of the Hindu Marriage Act,
1955 (Act No. 25 of 1955).
2.
That there are legal complications are involved in the matter and
petitioner is not a legal expert therefore he is unable to prosecute, plead
appear and argue the case on his own.
3.
In the circumstances of the case petitioner be permitted to
represent through a lawyer.
PRAYER
It is therefore most humbly and respectfully
prayed that petitioner may
kindly be permitted to be represented through a Lawyer, to prosecute,
plead appear and argue the case, in the larger
interest of Justice.
PLACE : JABALPUR
DATE : 09.05.2017 PETITIONER
Registered
Address
(Order 8 Rule 11/12 of CPC)
IN
THE COURT OF THE PRINCIPAL JUDGE FAMILY COURTS, JABALPUR (MADHYA PRADESH)
MATRIMONIAL
CASE NO. _______ OF 2017
Prashant Bhatnagar _______
PETITIONER;
VERSUS
Mrs.
Sheetal Shrivastava _______ RESPONDENT.
Name of petitioner , father’s name, aged, caste and occupation
|
Complete address of residence
|
Post office (District)
|
Prashant Bhatnagar,
Aged
about 33 years,
S/o
Late Mr. R. B. Bhatnagar,
Caste
– Hindu/ Kayastha
|
R/o
43-B, Awanti Vihar,
Ram
Nagar, Rampur,
Jabalpur
(Madhya Pradesh)
Vodafone : 9713026813
|
Post Office –Rampur,
District – Jabalpur -482 001
(Madhya
Pradesh)
|
My aforesaid address is correct and in case
of any change I will inform the court accordingly.
PETITIONER
I write the address as per
instruction of petitioner
ADVOCATE FOR PETITIONER
APPENDIX 1-A
FORMAT OF V A K A L A T N A M A
[Rules 4 (1) of the Rules framed under the Advocates Act, 1961]
IN
THE COURT OF THE PRINCIPAL JUDGE FAMILY COURTS, JABALPUR (MADHYA PRADESH)
MATRIMONIAL
CASE NO. _______ OF 2017
Prashant Bhatnagar _______ PETITIONER;
VERSUS
Mrs. Sheetal Shrivastava _______ RESPONDENT.
I, the petitioner named below do hereby appoint, engage and
authorize advocate (s) named below to appear, act and plead in aforesaid case /
proceeding, which shall include applications for restoration, setting aside for
ex - parte orders, corrections, modifications, review and recall of orders
assed in these proceedings, in this Court or in any other Court in which the
same may be tried / heard / proceeded with and also in the appellate,
revisional or executing Court in respect of the proceedings arising from this
case / proceedings as per agreed terms and conditions and authorize them to
sign and file pleadings , appeals,
cross objections, petitions, applications, affidavits, or the other documents
as may be deemed necessary and proper for the prosecution / defence of the said case in all its stages
and also agrees to ratify and confirm acts done by them as if done by me.
In witness whereof I do
hereby set my hands to these presents, the contents of which have been duly
understood by me, this 09th
day of May, 2017 at Jabalpur.
Particulars (in block
letters) of each Party Executing Vakalatnama
Name and father s / Husband s Name
|
Registered Address
|
E-Mail Address (if any)
|
Telephone Number (if any)
|
Status in the case
|
Full Signature/ **Thumb
Impression
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
Prashant Bhatnagar,
Aged
about 33 years,
S/o
Late Mr. R. B. Bhatnagar,
Caste
– Hindu/ Kayastha
|
R/o
43-B, Awanti Vihar,
Ram
Nagar, Rampur,
Jabalpur
(Madhya Pradesh)
|
|
VDAFONE
913026813
|
PETITIONER
|
|
Accepted
Particulars (in block
letters) of each Advocate Accepting Vakalatnama
|
Full Name
& Enrollment No. in State Bar Council
|
Address for
Service
|
E-mail
Address (if any)
|
Telephone
Number (if any)
|
Full
Signature
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
1.
|
VIJAY RAGHAV
SINGH
EN. No. M. P.
/ ADV / 1554 / 2003
|
SEAT NO. 93,
GOLDEN JUBILEE BUILDING, CHAMBER NO. 317, VIDHI BHAWAN, HIGH COURT PREMISES,
JABALPUR 482 001
|
vijayraghav_singh@rediffmail.com
|
IDEA 98261-43925
|
|
2.
|
VIJAY
SHRIVASTAVA, EN. No. M. P. / ADV /
949/ 2006
|
SEAT NO. 81,
HALL NO. 1, FIRST FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR 482 001
|
NIL
|
IDEA – 97539 13103
AIRTEL 97554 82448
|
|
3.
|
AMIT KUMAR
KHARE,
EN. No. M. P.
/ ADV / 1291/ 2006
|
HOUSE NO.
1483 / 17, SARASWATI COLONY, BEHIND PARIJAT BUILDING, CHERITAL, JABALPUR 482
001
|
NIL
|
BSNL 94258 66726
LAND LINE 0761 - 2345 005
|
|
*Score out which is not applicable
** The thumb impression shall be attested by a literate person
giving above particulars.
Rule 9 of the Family Courts (Procedure) Rules :
9. Permission for representation
by a Lawyer :
(a) The Court may permit
the parties to be represented by a lawyer in Court. Such permission may be
granted if the case involves complicated questions of law or fact, and if the
court is of the view that the party in person will not be in a position to
conduct his or her case adequately or for any other reasons. The reason for
granting permission shall be recorded in the order. Permission so granted may
be revoked by the Court at any stage of the proceedings if the Court considers
it just and necessary.
(b) Time for making
Application.-- An application by a party for being represented by a lawyer in
court shall be made by such party to the Court after notice to the other side.
Such an application shall be made not less than two weeks prior to the date
fixed for hearing of the petition.
(c) Application not to
be entertained at the hearing. An application shall not be entertained after
the petition is placed for hearing on the daily board of the Court, unless
there are exceptional circumstances justifying such late application.
Rule
9 of the Family Courts (Procedure) Rules which insists that such permission can
be given only on application. There cannot be any doubt in mind that an amicus
curiae appointed by the Judge, Family Court, under the proviso to Section 13 of
the Act is only a friend of the Court and is required to assist the Court in
matters of fact and law as and when required by the Court and cannot act as a
lawyer/advocate engaged by a party to defend cases. In other words, an amicus
curiae cannot do all such acts as usually done by an Advocate retained by a
party in a judicial proceeding and his role is limited to rendering assistance
to the Court in matters of facts and law whenever required by the Court.
Rule
37 of the Family Courts (Court) Rules, 1988 :
37. Permission for
Representation by a Lawyer : The Court may permit the parties to be represented
by a lawyer in Court. Such permission may be granted if the case involves
complicated questions of law or fact, if the Court is of the view that the
party in person will not be in a position to conduct his or her case adequately
or for any other reasons. The reasons for granting permission shall be recorded
in the order. Permission so granted may be revoked by the Court at any stage of
the proceedings if the Court considers it just and necessary. Made for legal
representation and in the absence of convincing reasons, such permission ought
not to be turned down.
Amicus
curiae is limited and he/she cannot act as an Advocate retained by a party.
Section 13 of the Act puts an absolute bar on engagement of an advocate by a
party and proviso to the said provision only empowers the Court to take help of
an Amicus curiae if he so desires. The role of the Amicus Curiae cannot be
equated with that of an Advocate retained by a party to conduct case on his
behalf and therefore an Amicus curiae has no authority to cross-examine any
witness examined by the adversary.
On
the contrary Section 13 of the Family Courts Act, 1984 does not absolutely bar
the appearance of
the Advocates before the Family Courts. Family
Courts, therefore, in the
absence of convincing and cogent reasons should not
turn down the permission of the litigants of legal assistance when they desire
it.
Section 30 of the
Advocates Act 1961 :
Right of Advocates to
practice :
Subject to the
provisions of this Act, every Advocate whose name is entered in the state roll
shall be entitled as of right to practice throughout the territories to which
this act extends :
(i) in
all courts including the Supreme Court;
(ii) before
any Tribunal or person legally authorised to take evidence and
(iii) before
any other authority or person before whom such advocate is by or under any law
for the time being in force entitled to practice.
Before
Jumping in to any conclusion and the legal stance as on date in the topic I
would draw your kind attention to various judgments passed by various High
Court and the Hon'ble Supreme Court in this very particular issue which will
further enlighten us in the above topic :
The
Judgment of the Hon'ble Justice B S Reddy & T R Rao of Andhra
Pradesh High Court in the matter of R. Durga Prasad Vs. Union of India and
another decided on 29 January, 1998 reported in 1998 (2) ALD 25. In the above
judgment it was decided that the main provision of Section 13 of Family
Courts Act, 1984 permits the parties to engage legal practitioners, but beyond
the stage of impossibility of reconciliation exercised under Section 9 of the Act
and under proviso to Section 13 of the Family Courts Act, 1984, the Family
Court shall be entitled to appoint amicus curiae to assist the said Court in
addition to the legal practitioners, as may be appointed by the parties.
The
bench of Hon'ble Mr. Swatantar Kumar and C.K.Prasad of the Hon'ble Supreme
Court in S.D.Joshi Vs. High Court of Bombay reported in (2011) 1 SCC 252 hold
that the Presiding Officer of all institutions determining disputes of civil
nature are not holders of judicial office. Family Court judges including the
principal judge appointed under Maharastra Family Court are neither member /
integral part of judicial services of the state nor they hold "judicial
office" as contemplated under article 217 (2) (a) of the Constitution of
India.
The
Hon'ble Supreme Court in Lingappa Pochanna Appelwar Vs. State of Maharastra
reported in AIR 1985 SC 389 has hold that since section 30 of the Advocates Act
has not yet brought in to force therefore, the right of the Advocate is to be
governed under section 14 (1) (a) (b) (c) of the Bar Council Act, 1926.
The
Hon'ble Supreme Court in T.C.Mathai & Another Versus District and Sessions
Judge reported in AIR 1999 SC 1385 hold about the right of the appearance and
duty towards the Court. It was hold that Section 30 of the Advocates Act
confers a right on every Advocate whose name is entered in the roll of the
Advocates maintained by a state Bar Council to practice in all the Courts in
India including the Supreme Court... Bar is one of the main wings of the system
of justice. An Advocate is the officer of the Court and is hence accountable to
the Court.
The
Hon'ble Mr. Justice P.R.Rama Chandra Menon of Kerala High Court in C.P.Saji Vs.
Union of India in WP C No. 18334 / 2011 reported in AIR 2012 Kerala 23 has hold
that the litigant is open for any lawyer of his choice to appoint him before
the Family Court.
The Central Government
in its recent Gazette of India dated 09-06-2011 since has given effect to
section 30 of the Advocates Act, 1961 from 15-06-2011 and in view of the
judgment of Hon'ble Supreme Court in TC Mathai's case reported in AIR 1999 SC
1385 and the Hon'ble Kerala High Court judgment reported in AIR 2012 Kerala 23
in WP C No. 18334 / 2011 decided on 19-07-2011, it is thus very much clear that
the litigant can pursue the Family Court engaging his / her lawyer of choice
and such lawyer is entitled to present the matter before the Family Court as a
matter of Right. However, the Lawyers being the officer of the Court must keep
in mind to cooperate and settle the matter's if it is so possible.
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