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Badan Singh vs Savitri on 21 February, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 32

Case :- FIRST APPEAL No. – 146 of 2019

Appellant :- Badan Singh

Respondent :- Savitri

Counsel for Appellant :- Shobhit Pathak

Hon’ble Shashi Kant Gupta,J.

Hon’ble Pradeep Kumar Srivastava,J.

1. Heard learned counsel for the appellant and perused the record.

2. This appeal has been filed against the order dated 2.1.2019 passed by the Principal Judge Family Court, Sambhal, Chandausi on an application filed under Section 24 of the Hindu Marriage Act in Case No. 3 of 2018 (Badan Singh Vs. Savitri) whereby the said application has been partly allowed and Rs. 15,000/- Rs. 600/- have been awarded to defendant-wife as counsel fee and for meeting expenses for attending every date of hearing before the family court respectively.

3. A perusal of the record shows that a suit for decree of divorce was filed in the year 2018. During the pendency of the said suit, an application under Section 24 of the Hindu Marriage Act was filed by the respondent-wife claiming Rs. 30,000/- towards counsel fee and Rs. 1,000/- for attending every date of hearing before the family court. It is notable that no amount was claimed towards maintenance pendente lite. The court below after considering the submissions of the learned counsel for the appellant has partly allowed the said application and awarded Rs. 15,000/- Rs. 600/- to defendant-wife towards counsel fee and for meeting expenses for attending every date of hearing before the family court respectively.

4. While referring to Section 13 of the Family Courts Act, 1984 and Rule 27 of the Family Court Rules, 2006, learned counsel for the appellant submitted that in the present case, the court below has not yet appointed any advocate or granted any permission to the respondent-wife to engage a counsel in the present matter, as such, the respondent-wife has no right to be represented in the present matter before the family court by a legal practitioner. At this stage, it would be relevant to quote provisions of Section 13 of the Family Courts Act, 1984 and Rule 27 of the Family Court (Court) Rules, 2006 hereinbelow:-

13. Right to legal representation:-

“Notwithstanding anything contained in any law, no party to a suit or proceedings 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 curaie.”

27. U;k;ky; i{kdkjksa dks U;k;ky; esa vf/koDrk }kjk izfrfuf/kRo djkus dh vuqefr ns ldsxkA ,slh vuqefr iznku dh tk ldrh gS] ;fn ekeys esa fof/k dk tfVt iz’u vUrxZzLr gS ;k ;fn U;k;ky; dh jk; gS fd i{kdkj O;fDrxr :i ls vius ekeys dks leqfpr :i ls lapkfyr djus dh fLFkfr esa ugha gksxk ;k fdlh vU; dkj.kA vuqefr iznku djus ds fy, dkj.k vkns’k esa vfHkfyf[kr fd;k tk;sxkA bl izdkj iznRr vuqefr dk izfrlagj.k U;k;ky; }kjk dk;Zokgh ds fdlh izdze ij fd;k tk ldsxkA ;fn U;k;ky; mls U;k;ksfpr vkSj vko’;d lerk gSA

5. A plain reading of the aforesaid provision indicates that it does not place an absolute bar upon the engagement of a lawyer and the family court at its discretion can always seek assistance of a lawyer. In other words, engagement of a lawyer in family court is not permissible as of right but nonetheless in certain contingencies a party can be allowed to be represented by a legal practitioner.

6. A perusal of the Rule 27 of the Family Court (Court) Rules, 2006 further shows that it empowers the family court to permit the parties to be represented by a lawyer in court not only where the cases involve complicated questions of law but also where the court is of the view that the party will not be in a position to conduct his or her case himself/herself adequately or for any other reason. The above Rule widens the scope for granting permission to parties to be represented by a lawyer before the family court by using the term “or for any other reason.

7. In short, the conjoint reading of Section 13 of the Family Courts Act and the Rule 27 of the Family Court (Court) Rules, 2006 in no way completely prohibits the presence of lawyers in family courts rather it authorizes family court in its wisdom and discretion to permit the parties to engage lawyers even for any reason other than the reasons specified.

8. A perusal of the plaint as well as order sheet of the family court clearly shows that the petition for decree of divorce under Section 13 of the Hindu Marriage Act, 1955 was filed by the appellant through his counsel, therefore, it cannot be expected that the defendant-wife should be deprived from taking legal assistance from an advocate to defend her case before the court below.  Section 13 of the Family Courts Act as well as the Rule 27 of the Family Court (Court) Rules, 2006 does not suggest that the permission for engaging counsel to the parties can only be granted only after the disposal of the application filed for maintenance under Section 24 of the Hindu Marriage Act. Being a lady, the respondent-wife is not supposed to pursue her case in the court on her own particularly when the appellant-husband has already engaged his counsel. In such matters court below should not take a very technical view of the matter. In most of the matrimonial cases, wives are not very much educated or well aware of the legal proceedings, as such, they are invariably permitted to engage her counsel. It is also notable that the appellant must have incurred handsome expenses in engaging a counsel to argue in the present appeal before this Court and challenge the impugned order whereby impugned amount has been awarded in favour of the respondent-wife towards litigation expenses. The appellant instead of complying with the said order has approached this Court. The conduct of the appellant cannot be appreciated.

9. This issue can also be viewed from a different angle. The Act does not authorize the family court to prevent a party from engaging a lawyer in the matrimonial proceeding. A technical approach may have effect of frustrating the right of a party to properly litigate the matter in the family court. It should also not be ignored that the social conditions and legal awareness is not such in our society where a party himself/herself may appear and litigate the case in the court personally.

10. Moreover, Section 13 of the Family Courts Act along with Rule 27 is incorporated to authorize the Court to regulate procedure in matrimonial cases and the issue of legal representation to the parties is totally in the domain of court and it does not entitle any party to raise any challenge before the appellate court on this account nor other party has any locus-standi to challenge an order of interim maintenance on the ground that the Court has not formally permitted a party for such legal representation.

11. It can be safely presumed that the Court by granting legal expenses to the respondent-wife for engaging a lawyer has impliedly permitted the respondent-wife to engage a lawyer to contest the case on her behalf in the family court.

12. In the totality of the facts and circumstances, we are of the view that the appellant can not deny the respondent-wife from availing the services of a lawyer especially when the appellant-husband is continuously engaging lawyer to contest the case in the family court.

13. In view of the above, we do not see any illegality or infirmity in the impugned order.

14. The appeal is, accordingly, dismissed.

Order Date :- 21.2.2019

vinay

 

 

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