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

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 09^th 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 09^th  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.