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Can a lawyer argue a case in Indian family court

ORISSA HIGH COURT: CUTTACK

WRIT PETITION (CIVIL) Nos. 863 & 1011 of 2013

In the matter of applications under Articles 226 and 227 of the Constitution of India.

In W.P.(C) No.863 of 2013

Samarendra Jena ……… Petitioner

-versus-

Sanghamitra Biswal ……… Opposite Party

For petitioner : M/s.Rama Ch. Sarangi & P.M.Pratihari
For opp. Party : M/s.Biswanath Rath, J.Rath, S. Sethy, S.K.Mishra, S.Mishra

In W.P.(C) No.1011 of 2013

Sanghamitra Biswal ……… Petitioner

-versus-

Samarendra Jena ……… Opposite Party

For petitioner : M/s.Biswanath Rath, J.Rath, S. Sethy, S.K.Mishra, S.Mishra
For opp. Party : M/s.Rama Ch. Sarangi & P.M.Pratihari

PRESENT:

THE HONOURABLE KUMARI JUSTICE S. PANDA AND THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing: 03.07.2013 | Date of judgment : 12.07.2013

Dr. B.R.Sarangi, J.

Being aggrieved by the order dated 7.1.2013 passed by the learned Judge, Family Court, Bhubaneswar in C.P.No. 68 of 2010 rejecting the application to permit the petitioner-husband for engagement of legal practitioner under Section 13 of the Family Courts Act, he has preferred W.P.(C) No. 863 of 2013. The wife being petitioner in W.P.(C) No.1011 of 2013, has approached this Court seeking for a direction to the learned Judge, Family Court, Bhubaneswar to dispose of C.P.No.68 of 2010 within a time frame. Since both the cases arise out of C.P.No.68 of 2010, they are heard together and disposed of by this common judgment.

2. The petitioner-husband filed C.P.No. 68 of 2010 before the learned Judge, Family Court, Bhubaneswar for dissolution of marriage, which was performed under the Special Marriage Act. In course of hearing, an application was filed by the petitioner-husband, who was respondent in the aforesaid C.P. No. 68 of 2010 before the learned Judge, Family Court, Bhubaneswar praying to permit him to be represented through a lawyer vide Annexure-1 on 3.4.2012. The said application was rejected by the learned Judge, Family Court, Bhubaneswar vide order dated 7.8.2012 without assigning any reason and therefore, the petitioner-husband approached this Court by filing W.P.(C) no.14916 of 2012. On consideration of the contentions raised therein, this Court by order dated 19.12.2012 set aside the order dated 7.8.2012 passed by the learned Judge, Family Court, Bhubaneswar rejecting the application for representation by legal practitioner and remitted the matter to the said court for reconsideration of the application dated 3.4.2012 strictly in consonance with law by passing a speaking order (afresh), consequence thereof, the impugned order in Annexure-3 dated 7.1.2013 has been passed, which is under challenge in W.P.(C) No. 863 of 2013.

3. On being noticed, the opposite party-wife entered appearance and supported the order passed by the learned Judge, Family Court, Bhubaneswar stating that in view of the provisions contained in Section 13 of the Family Courts Act, the order passed is absolutely correct and needs no interference by this Court at this stage.

4. Mr.R.C.Sarangi, learned counsel for the petitioner- husband assails the impugned order dated 7.1.2013 on the ground that the learned Judge, Family Court has not considered the contentions raised in the application filed under Annexure-1 in proper perspective and has stated that though the petitioner-husband relied upon the judgment of this Court in Sadhana Patra v. Subrat Pradhan (2006(I) OLR, 524) he has not filed the order/decision and he has abruptly came to the conclusion thereby depriving the petitioner-husband to avail the assistance of a lawyer for the purpose of cross-examination and making argument on his behalf. He further submitted that though reliance was made upon the judgment of the apex court in S.D.Joshi and others v. High Court of Judicature at Bombay and others, (2011) 1 SCC 252, the learned Judge, Family Court has not appreciated the said judgment in proper perspective and rejected the application without any application of mind. Several judgments have been referred to in the writ petition filed by the petitioner-husband reported in State of Orissa Vs. Sudhansu Sekhar Misra & others, AIR 1968 SC 647, Rajpur Rudra Meha & others Vs. State of Gujarat, AIR 1980 SC 1707, M/S Amar Nath Om Prakash & others Vs. State of Punjab & others, AIR 1985 SC 218, Som Mittal Vs. Govt. of Karnataka, 2008(3) SCC 574 and Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University, Sirsa & another, 2008(9) SCC 284. According to Mr. Sarangi, depriving the petitioner by rejecting the application to permit him to engage a lawyer to defend his case violates Article 29 of the Constitution and therefore, he seeks for quashing of the said order.

5. Mr.Biswanath Rath, learned counsel appearing for the opposite party-wife vehemently urged that the impugned order passed by the learned Judge, Family Court, Bhubaneswar is absolutely in consonance with the provisions of law and more so, Section 13 of the Family Courts Act, 1984 only puts a restriction with regard to the representation of the parties by the legal practitioner. In view of such position, the prayer made by the petitioner-husband cannot be allowed in the ends of justice. He further submits that the petitioner is himself a practicing Advocate of the Bhubaneswar Bar.

6. Before going to the merits of the case, we propose to state the objects of enactment of Family Courts Act, 1984, wherein it is found that several associations of women, other organizations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt in the public interest, to establish Family Courts for speedy settlement of family disputes. To satisfy the objects and reasons for establishment of family courts, the legislature in its wisdom have enacted an Act to provide for the establishment of the family courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith called “Family Courts Act, 1984”, hereinafter to be referred to as “the Act”, in short. Various provisions have been made under the said Act to achieve its objects. One of such provision is Section 13, which reads as follows:

“Sec.13. Right to legal representation:- Notwithstanding 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.”

On perusal of the aforesaid section, it appears that the said Section puts a restriction on the parties to engage lawyers to represent their case in the family courts. Similar provision is found in Section 36 of the Industrial Disputes Act, 1947. The common view in both the enactments, i.e., Family Courts Act, 1984 and Industrial Disputes Act, 1947 is to settle the disputes through conciliation. In the latter Act, the Section is very clear that the party to the dispute may be represented by legal practitioner with the consent of parties, whereas Section 13 of the Family Courts Act is silent on the point whether permission can be obtained from the court to engage legal practitioner by any party to the dispute to act on their behalf. The law makers intended to keep the proceedings in the Family Court simple, informal and non-technical to achieve the main objectives of the enactment. In that perspective, it is mainly aimed at the right of the parties to engage legal practitioner. However, there is no bar on the parties to make application to permit them to engage legal practitioner. In such case the court can permit the parties to engage legal practitioner by exercising its discretion to enable them to act as amicus curiae. Law itself prohibits for engagement of lawyer to represent a case before the family court excepting to act as amicus curiae as per the provisions of the said Section and therefore, engagement of lawyer by the parties is not permissible.

7. Similar question has been considered by this Court in Sadhana Patra (supra) in which the learned Single Judge of this Court referring to the judgment in Leela v. Dr.Mahadeo, AIR 1991 Bom. 105 has come to a definite conclusion that the representation by a lawyer is not a matter of right, but permission to be represented by a lawyer should be liberally granted where the facts are complicated. While giving such conclusion, this Court has also relied upon the judgment of this Court in (1997) 12 OCR 196 (Manguli Dalei v. Smt.Malini Dalei).

8. The reliance on the judgments referred to in the writ petition, as stated supra, have neither been placed nor have been urged nor the same are in the context of which the case is to be decided at the time of hearing by Mr.Sarangi, learned counsel appearing for the petitioner-husband. So far as the reference made to the judgment of the apex Court in S.D.Joshi(supra) is concerned, the question of applicability of Section 13 of the Act was not under consideration in the said case, rather the apex Court had taken into consideration the provisions contained in Sections 3(2)(a)(d), 4, 7 to 10, 16 and 19 of the Act and also considered the meaning of ‘Judge’, ‘Court’, ‘Tribunal’, “Administration of Justice” with reference to the constitutional provision mentioned in Articles 233, 234 and 236 of the Constitution. Neither the applicability of Section 13 of the Act had been urged nor was there any occasion for the apex Court to deal with the said matter. In view of such provision, it is very much clear that as per the provisions contained in Section 13 of the Act, the right of representation and assistance of a lawyer before the Family Court is totally restricted.

9. On perusal of Section 13, it is evident that the provision is very clear. It is well established that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of consequences. (See: Nelson Motis v. Union of India, AIR 1992 SC 1981= 1992(4) SCC 711.).

10. The Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 has held as follows:

“when the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the act speaks for itself. “

That apart, interpretation of statute by Maxwell also states as follows:

“The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words”

In the present case, when the legislative intent is very clear while enacting Section 13 keeping its objects and reasons, there is no question of any deviation or defiance thereof.

11. In view of the above, we do not find any illegality or infirmity in the impugned order of the learned Judge, Family Court, Bhubaneswar while rejecting the prayer of the petitioner for permitting him to be represented through lawyers under Annexure-3. Accordingly, the writ petition bearing W.P.(C) No. 863 of 2013 filed by the petitioner-husband is dismissed.

12. As a consequence of dismissal of the aforesaid writ petition filed by the petitioner-husband, the writ petition, bearing W.P. (C) No. 1011 of 2013 filed by the opposite party-wife is disposed of with a direction to the learned Judge, Family Court, Bhubaneswar to conclude C.P. No. 68 of 2010 within a period of six months from the date of receipt of a certified copy of this judgment. No cost.

Dr.B.R.Sarangi, J.
S.Panda, J. I agree.
S.Panda,J.
Orissa High Court, Cuttack The 12th July, 2013

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