• I failed to have Judgement of Supreme Court please help me.

I am 72years old and my wife has taken a divorce from me in Oct.2015. I appeared in person in Family Court where my different says are ignored and decided on main ground of no WS!!!???. I opted not to approach HC due to my limitations. As I am lot more economically looser as upto 2008 my wife was eager to make our investments jointly and suddenly changed her mind. I am keen on my prestige and good Will point, not to allow her my Name and Surname.

Below is the news of TOI and even on your web site as shown to me by one lady lawyer to me where the names are changed. Now the real and true details are as thus:
H.C. Mumbai Writ Petition No.8954/2007
decided on 17-02-2010
Applicant's Name: Neelam Dadasaheb Shewale
Respondent Name Dadasaheb Bandu Shewale
Petition Dismissed           Hon Judges/Coram Justice R. S. Dalvi. 


On Supreme Court web site I failed to get the judgement even though, I put the above names. My doubt is there is a like possibility that wirt petition at SC level may have rejucted at admission level and hence may not be on record or there is some thing wrong on my site? !  Pleaase do the needful in the matter to avail me the SC judgement of the same case.
I have wrote my request to 1. 	migsociety@gmail.com  2.	supremecourt@nic.in

I remain.

Ramesh S. Bhide.
rameshbhides@gmail.com

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Supreme-Court/articleshow/10760882.cms
Woman can't use husband's name after divorce: Supreme Court

Shibu Thomas | TNN | Nov 17, 2011, 12.49 AM IST
A Mumbai resident, 53-yr-old Dinesh Patil, fought a legal battle all the way to the Supreme Court.
MUMBAI: "Must a name mean something?" asks Alice as she travels through Wonderland while William Shakespeare famously asked "What's in a name?" To a Mumbai resident it definitely meant something as he fought a legal battle all the way to the Supreme Court to stop his ex-wife from using his surname. Fifty-three-year-old Dinesh Patil, an assistant police inspector with the Mumbai police, finally won the battle with the apex court recently dismissing an application by his former wife Nisha (34) to continue using her ex-husband's name after their divorce. "We are not inclined to interfere with the impugned order (passed by the Bombay High Court and family court)," said the apex court.

"There is no law governing the issue," said advocate R T Lalwani who represented Patil in the high court and family court. "The SC order can be cited as a precedent for any man who objects to his former wife whom he has divorced from continuing to use his surname."

"A woman acquires her matrimonial surname by virtue of her marriage. When the marriage is dissolved, the man definitely has the right to take recourse to the law to restrain his former wife from using his name," added Lalwani.

Earlier this year, additional solicitor-general Darius Khambata had given a
                                                                 
legal opinion in another case that a divorced woman could use her former husband's name. "The wife has a fundamental right under Article 21 of the Constitution of India (right to life) to use any name including her married name notwithstanding the fact that her marriage has been dissolved," Khambata had submitted in a case where the passport office had refused to renew the passport of a divorced Pune woman in her former married surname. However, in that case the man did not have any objection to his former wife using his surname.

In the present case, Patil had married Nisha in 1995. It was his second marriage after his first wife died. According to Nisha, within eight months of the marriage, Patil threw her out of the house. Patil filed for divorce in 1997 and a family court dissolved the marriage in 2006. When Nisha sough more maintenance, Patil moved an application seeking to bar her from continuing to use his surname. He claimed that she was misusing his name.

The family court in 2009 passed an injunction to stop her using her former husband's name. "By using the name/surname (of the husband), there is always a possibility of people being misled that she still is his wife, when in fact she is not," observed the family court judge. A year later, the high court in February 2010 agreed and said that Nisha "cannot use the husband's name anywhere, including in her bank account."

Nisha then filed a special leave petition before the Supreme Court seeking to challenge the HC order. Her petition contended that the family court did not have jurisdiction to give an order in the matter of surname. "There is no rule governing (the issue of) using the surname of the ex-husband after divorce," Nisha argued, adding, "Surname is not a trademark which can be patented by an individual." The apex court dismissed Nisha's petition.
Asked 7 years ago in Family Law
Religion: Hindu

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3 Answers

I am not sure what exactly you have asked from us.

It appears the SLP filed by the wife is dismissed challenging restraint order to use husband's name.

If your wife insists on using your name you can file a suit seeking injunction to let her use.

The supreme court surely held that using of surname of divorced husband is not fundamental right of divorced wife.

Devajyoti Barman
Advocate, Kolkata
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judgment of bombay HC is available online . unable to find SC judgment

Bombay High Court

Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010

Bench: R. S. Dalvi

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed. 2

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife's application/petition already filed. In fact, the husband can 3

file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That 4

statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband's name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

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10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :

ORDER III :

1. Appearances, etc., maybe in person, by recognized agent or by pleader. - Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :

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Provided that any such appearance shall, if the Court so directs, be made by the party in person.

(emphasis supplied)

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression "appearance, application or act in or to any Court". This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not "acting" as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be "appearing, applying or acting" on his behalf. 7

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression "practice" is wider than the expression "plead". Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8

could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties' constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9

the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10

permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner's life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

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Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

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The contents what you have written here is not sufficient to give a proper opinion or suggestion.

Instead you produce the papers or relevant documents before an advocate in the local and get his opinion and advised on further course of action.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

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