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1996 DIGILAW 181 (ORI)

BASANTI JENA v. PRATAP CHANDRA JENA

1996-06-19

A.DEB, ARIJIT PASAYAT

body1996
JUDGMENT : A. Pasayat, J. - Both the writ application and the Civil Appeal are interlinked as they are directed against the same order passed by the learned Judge, Family Court Cuttack, dated 10-1-1996 in Misc. Case No. 173 of 1995 arising out of Civil Proceeding No. 111 of 1994 rejecting the application filed u/s 24 of the Hindu Marriage Act, 1955 (in short, 'the Act') The application was primarily rejected on the ground that it was not Verified in the proper manner. 2. Mr. K.N. Jena, learned counsel appearing for Basanti Jena, the applicant before the learned Judge, Family Court, submitted that the insistence was on signing of the application on each page though the verification had been signed by the applicant, and each page of the application was signed by the advocate appearing for the applicant in the case. Additionally an affidavit had been filed by the applicant to the effect that she had filed the application and had authorised the advocate to sign the application on each page. Mr. Mahadev Misra, learned counsel appearing for Pratap Chandra Jena, respondent in the Civil Appeal and opp. party No. 1 in the writ application contended that the verification was not in the proper manner and signing by the advocate and filing of the affidavit were of no consequence. The learned counsel appearing in the Family Courts to act as an amicus curiae u/s 13 of the Family Courts Act, 1984 (in short, 'the Family Act'), and his signing is of no consequence. 3. Section 20 of the Act deals with the contents and verification of the petition. The learned counsel appearing in the Family Courts to act as an amicus curiae u/s 13 of the Family Courts Act, 1984 (in short, 'the Family Act'), and his signing is of no consequence. 3. Section 20 of the Act deals with the contents and verification of the petition. It reads as follows : "20 (1) Every petition presented under this Act, shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and except in a petition u/s 11, shall also state that there is no collusion between the petitioner and the other party of the marriage, (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence." Sub-section (2) provides that the petition is to be verified by the petitioner or some other competent person for the verification of plaint, and may at the time of hearing be referred to as evidence. The manner of verification of plaints is provided in Order 6, Rule 15 of the Code of Civil Procedure, 1908 (in short, 'the Code'). Same read with the Orissa Amendment reads as follows : "Rule 15. Verification of pleadings ; (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." with Orissa amendment : "(1) Save as otherwise provided by any law for the time being in force, the facts stated in every pleading shall be verified by solemn affirmation or on oath of the party or of one of the parties pleading or of some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, before any officer empowered to administer oath u/s 139 of the Code." (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." 3. It is to be noted that the verification has been signed by the applicant. The only defect pointed out was non-signing on each page of the petition. But an affidavit has been filed by the applicant stating that the petition had been filed by her. Procedure is the handmaid of justice, and it cannot be used as a weapon to stand on the way of substantive justice. When technicalities and substantive justice are pitted against each other, latter has to prevail. Procedures are designed to facilitate justice and further its ends, and cannot be considered as penal enactments for punishment or penalties. It should not be taken as something designed to trip people rather it should be used to help them. Procedure means the manner and form of enforcing law. It is defined in Wharton's Law Lexican as the mode in which successive steps in litigation are taken. It is but the machinery of the law, after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve. It is but the machinery of the law, after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve. Procedures constitute the modes in which successive steps in litigation are taken. Law relating to procedure is called adjective law while law defining principles or constituting the substance of juristic principles is called substantive law. 4. It is to be noted that the parties before the Family Court are not permitted to be assisted by lawyers as of right and are required to appear in person. Engagement of lawyers has to be made in terms of Section 13 of the Family Act. Keeping in view the object for which the Family Act has been enacted and non-availability of assistance by advocates, too much of stress on technicalities would frustrate the purpose of enactment of the statute. If there is substantial compliance. Family Courts should liberally act. It would depend on the nature of the compliance required and nature of defect. In the peculiar circumstances of the case, we are satisfied that the rejection of the application was not proper. The impugned order is, therefore, set aside. The learned Judge, Family Court shall consider the application on merit afresh. The writ application and the Civil Appeal are accordingly disposed of. A. Dev, J. I agree.