aspect which is peculiar to matrimonial
proceedings, namely, the fact that as far as
issues such as custody of children, visiting
rights, maintenance, alimony,
apportionment of property etc., are
concerned that the parties may not be in a
position to protect their own interest or that
they may not be in a position to visualize
future problems or requirements and
would, therefore, either give up their rights
or not be in a position to agitate or
safeguard them. The inevitable
consequences would be either undue
hardship or future litigation, both of which
deserve to be avoided. We are, therefore,
inclined to agree with the grievance made
before us that the Family Court ought to
give due credence to the desire of litigants
where legal representation is concerned.
In fact, R. 37 of the Family Courts (Court)
Rules, 1988 reads as follows:
"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 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".
It is, therefore, patently clear that reading
S. 13 with R. 37 that adequate provision
has been made for legal representation
and in the absence of convincing reasons,
such permission ought not to be turned
down.”
I respectfully agree with the statement of law laid down
by Bombay High Court in the above stated case. Thus,
it is quite vivid that no party can claim as a matter of
right a right to be represented through legal practitioner
and it is open to the Legislature to put restrictions on
such representation by such legal practitioner having
regard to the aims and objects of the Act.
After having examined the legal position with reference
to the representation of legal practitioner in a
proceeding before the Family Court turning back to the
facts of the case in hand, the Family Court has rejected
the application of the present petitioner only on the
ground that the respondent has already been
examined. The Family Court has failed to consider the
application under Section 13 of the Act of 1984 in its
proper perspective and rejected the application on
wholly untenable ground. Consequently, the impugned
order is set aside being contrary to law and the Family
Court is directed to reconsider the application under
Section 13 of the Act of 1984 filed by the petitioner
afresh in the light of observation made hereinabove in
this order after affording due opportunity of hearing to
the parties.
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.538 of 2015
Rupesh @ Rupeshwar Patel,
Versus
Ku. Siddhi Patel, D/o Rupesh @ Rupeshwar Patel,
Hon'ble Shri Justice Sanjay K. Agrawal
Order On Board
09/07/2015
(1) Impugning the legality, validity and correctness of the
order dated 16-4-2015 passed by the Judge, Family
Court, Raigarh in Criminal MJC No.F-41/2014, the
petitioner / husband has filed this revision under subsection
(4) of Section 19 of the Family Courts Act,
1984 (for short 'the Act of 1984') by which his
application under Section 13 of the Act of 1984 has
been rejected by the said Court.
(2) Imperative facts necessary for the disposal of this
revision are as under: -
(2.1) In an application for enhancement of the
amount of maintenance allowance by the respondent
herein, the Family Court permitted the respondent
herein to take the assistance of legal expert as amicus
curiae leading to filing of application under Section 13
of the Act of 1984 by the petitioner herein stating inter
alia that the petitioner be permitted to take the
assistance of legal expert as amicus curiae, as he has
no legal knowledge to conduct the proceeding. The
Family Court by its impugned order rejected the
application holding inter alia that examination and
cross-examination of the respondent has already been
concluded and, therefore, the application is substanceless.
Against the said order, this revision has been filed
by the petitioner / husband.
(3) Mr. Pradeep Saksena, learned counsel appearing for
the petitioner, would submit that the Family Court is
absolutely unjustified in rejecting the application of the
petitioner seeking assistance of legal expert as amicus
curiae, as Section 13 of the Act of 1984 does not
absolutely bar the representation of Advocate(s) to
appear on behalf of the parties, though the party to
such proceeding is not entitled “as of right” to be
represented by legal practitioner. He would further
submit that the Family Court has already permitted the
respondent / wife to be represented by a legal expert
as amicus curiae and, therefore, the Family Court is
absolutely unjustified in rejecting the application filed
by the petitioner to take the assistance of legal expert
as amicus curiae as such, the order be set aside and
the petitioner be permitted to take the assistance of
legal expert as amicus curiae.
(4) I have heard learned counsel for the petitioner and
considered the rival submissions made herein.
(5) In order to consider the plea raised, it would be
appropriate to notice Section 13 of the Act of 1984
which provides as under: -
“13. Right to legal representationNotwithstanding
anything contained in any
law, no party to a suit or proceeding before
a Family Court shall be entitled, as of right,
to be represented by a legal practitioner:
Provided that if the Family Court considers
it necessary in the interest of justice, it may
seek the assistance of a legal expert as
amicus curiae”
(6) Dictionary meaning of the word 'right' in the context in
which it is used in Section 13 of the Act of 1984, is as
under: -
“Chambers: just or legal claim; what one
has a just claim to.
Webster's : Third New international
Dictionary : Something to which one has
just claim; a power or privilege vested in a
person by the law to demand action or
forbearance at the hands of another; a
legally enforceable claim against another
that the other will do or will not do a given
act; a capacity or privilege the enjoyment of
which is secured to a person by law.
Wharton's Law Lexicon : It is a liberty of
doing or possessing something consistently
with law.
The Law Lexicon by P. Ramanatha Aiyar :
A lawful title or claim to anything, property,
prerogative privilege.
(7) The expression “as of right” used in Section 13 of the
Act of 1984 also finds place in Section 15 of the Indian
Easement Act. It is well known principle of
interpretation of statutes that use of same words in
similar connection in a later statute gives rise to a
presumption that they are intended to convey the same
meaning as in the earlier statute. When once certain
words in an Act of Parliament have received a judicial
construction and the Legislature has repeated them,
the Legislature must taken to have used them
according to the meaning which a court of competent
jurisdiction has given to them.
(8) Way back, the Constitution Bench of the Supreme
Court in the matter of P. Vajravelu Mudaliar v. The
Special Deputy Collector for Land Acquisition,
West Madras and another1
, relying on Craies on
Statute Law, held as under:-
“There is a well-known principle of
construction that where the legislature used
in an Act a legal term which has received
judicial interpretation, it must be assumed
that the term is used in the sense in which
it has judicially interpreted unless a
contrary intention appears.”
(9) The correct meaning of the first part of Section 13 of
the Act of 1984 would be that no party to suit or
proceeding before a Family Court can make a legal
claim to be represented by legal practitioner. The
representation by legal practitioner will, therefore,
depend upon the discretion of the Family Court. The
Section does not impose a complete bar on the
representation by legal practitioner. The proviso to
Section 13 of the Act of 1984 gives jurisdiction to the
Family Court that in appropriate cases, in the interest
of justice, the said court may permit a party to be
represented by the legal practitioner.
(10) Representation of legal practitioner before the Family
1 AIR 1965 SC 1017
Court in the light of Section 13 of the Act of 1984 also
came to be considered before the Division Bench of
Bombay High Court in the matter of Leela Mahadeo
Joshi v. Dr. Mahadeo Sitaram Joshi2
. The Bombay
High Court considered the issue in great detail and
concluded that Section 13 of the Act of 1984 does not
prescribe a total bar to the representation by legal
practitioner and the proviso to Section 13 makes
provision for situation where the Court may seek the
assistance of legal expert as amicus curiae, and has
held as under:-
“17. A strong grievance has been made
before us, in several cases, that have come
up in appeal, from the Family Courts at
Pune and at Bombay that the
representation by Advocates is not being
permitted and that avoidable situations
have arisen because the cases have gone
by default and have had to be either
remanded by the High Court or entertained
in appeal. A perusal of S. 13 of the Act
indicates that a party to a proceeding
before the Family Court shall not be
entitled as of right to be represented by a
legal practitioner. It is necessary to clarify
that S. 13 does not prescribe a total bar to
representation by a legal practitioner which
bar would itself be unconstitutional. The
intentment of the Legislature obviously was
that the problems or grounds for
matrimonial break-down or dispute being
essentially of a personal nature, that it may
be advisable to adjudicate these issues as
far as possible by hearing the parties
2 AIR 1991 Bombay 105
Page 6 of 127
themselves and seeking assistance from
Counsellors. The Section also makes
provision for a situation whereby the Court
may seek the assistance of a legal expert
as amicus curiae. It is a well-known fact
that the adjudication of a complicated or
highly contested matrimonial dispute in the
light of the law and interpretation of
provisions by different Courts over a period
of time, would require in given cases
assistance from a legally trained mind and
for this purpose, the Court has been
empowered to seek the assistance of a
legal expert.
18. We are, however, informed that as far
as uneducated and poor persons are
concerned that they are being totally
handicapped in the conduct of their cases
for want of legal assistance. Even as far as
persons coming from the educated, and
professional strata are concerned, the
obvious difficulty that is involved, namely
the drafting of applications and pleadings in
consonance with Court requirements and
the ability to conduct an examination-inchief
or a cross-examination are skills
which one cannot expect of a lay person.
The inevitable result is that the parties are
handicapped resulting in a possible
miscarriage of justice, not to mention
delays and the attendant problem of having
to take the matter in appeal to the High
Court. This is not something which is
within the ability of all the litigants. It
would, therefore, be a healthy practice for
the Family Court at the scrutiny stage itself,
to ascertain as to whether the parties
desire to be represented by their lawyers
and if such a desire is expressed at this or
any subsequent stage of the proceedings,
that the permission be granted if the Court
is satisfied that the litigant requires such
assistance and would be handicapped if
the case is not permitted. We are
conscious of the fact that an appeal from
the Family Court lies to the Division Bench
Page 7 of 128
of the High Court and a situation should not
arise whereby at the appeal stage when
the parties are represented by Advocate,
that it is disclosed that the evidence or
pleadings have not been in consonance
with the legal requirements or that the
replies or cross-examination are
inadequate. It is too much to expect of lay
litigants to be able to study the laws, rules,
acquaint themselves with Court procedures
and to conduct a trial of their own and at
the same time be able to place before, the
Court the relevant case law.
19. We are fortified in this view by another
aspect which is peculiar to matrimonial
proceedings, namely, the fact that as far as
issues such as custody of children, visiting
rights, maintenance, alimony,
apportionment of property etc., are
concerned that the parties may not be in a
position to protect their own interest or that
they may not be in a position to visualize
future problems or requirements and
would, therefore, either give up their rights
or not be in a position to agitate or
safeguard them. The inevitable
consequences would be either undue
hardship or future litigation, both of which
deserve to be avoided. We are, therefore,
inclined to agree with the grievance made
before us that the Family Court ought to
give due credence to the desire of litigants
where legal representation is concerned.
In fact, R. 37 of the Family Courts (Court)
Rules, 1988 reads as follows:
"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 reason for
Page 8 of 129
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".
It is, therefore, patently clear that reading
S. 13 with R. 37 that adequate provision
has been made for legal representation
and in the absence of convincing reasons,
such permission ought not to be turned
down.”
(11) I respectfully agree with the statement of law laid down
by Bombay High Court in the above stated case. Thus,
it is quite vivid that no party can claim as a matter of
right a right to be represented through legal practitioner
and it is open to the Legislature to put restrictions on
such representation by such legal practitioner having
regard to the aims and objects of the Act. In the matter
of Lingappa Pochanna v. State of Maharashtra3
,
their Lordships of the Supreme Court dealing with the
challenge held that the only fundamental right under
the Constitution to be represented by a lawyer is under
Article 22 (1) of the Constitution of India' and held as
under in paragraph 35:-
“Now it is well-settled that apart from the
provisions of Art. 22 (1) of the Constitution,
no litigant has a fundamental right to be
represented by a lawyer in any Court. The
only fundamental right recognised by the
Constitution is that under Art. 22 (1) by
3 AIR 1985 SC 389
which an accused who is arrested detained
in custody is entitled to consult and be
defended by a legal practitioner of his
choice. In all other matters, i.e. suits or
other proceedings in which the accused is
not arrested and detained on a criminal
charge, the litigant has no fundamental
right to be represented by a legal
practitioner.”
(12) Thus, from the basis of aforesaid discussion, it appears
that Section 13 of the Act of 1984 pertinently deals with
appointment of legal practitioner by the parties. Proviso
to Section 13 deals with power of the Family Court to
appoint a legal practitioner as amicus curiae. Section
13 only prohibits that party cannot claim to appoint
legal practitioner to plead his / her cause as a matter of
right, but an exception is carved out in proviso vesting
the jurisdiction in the Family Court to seek the
assistance of a legal practitioner by appointing any
Advocate as amicus curiae to assist the Court, as such
Section 13 does not create a total embargo or
prohibition on the parties before the Family Court to
engage an Advocate(s).
(13) After having examined the legal position with reference
to the representation of legal practitioner in a
proceeding before the Family Court turning back to the
facts of the case in hand, the Family Court has rejected
the application of the present petitioner only on the
ground that the respondent has already been
examined. The Family Court has failed to consider the
application under Section 13 of the Act of 1984 in its
proper perspective and rejected the application on
wholly untenable ground. Consequently, the impugned
order is set aside being contrary to law and the Family
Court is directed to reconsider the application under
Section 13 of the Act of 1984 filed by the petitioner
afresh in the light of observation made hereinabove in
this order after affording due opportunity of hearing to
the parties.
(14) Accordingly, the revision is disposed of with a direction
to the Family Court to consider afresh the application
filed by petitioner under Section 13 of the Act of 1984
expeditiously. Liberty is reserved in favour of the
respondent to make an application for modification if
she feels aggrieved by this order. No cost(s).
Sd/-
(Sanjay K. Agrawal)
Judge
No comments:
Post a Comment