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2004 DIGILAW 506 (MP)

Priyanka Agarwal v. Abhay Agarwal

2004-06-24

A.K.SHRIVASTAVA, S.P.KHARE

body2004
Judgment ( 1. ) THIS is an appeal under Section 19 of the Family Court Act, 1984 against order dated 21-10-2003 of the Family Court, Bhopal by which the applications under Section 5 of the Limitation Act, 1963 and under Order 9 Rule 13, CPC for setting aside ex-parte order dated 29-4-2003 in M. J. C. No. 53-A of 2002 have been rejected. ( 2. ) ARGUMENTS of both the sides heard. The dispute was between the maternal grand-mother and the father of two minor children aged 4 years and 1 year regarding their custody. It appears from the proceedings that the grand-mother could not appear on certain dates and therefore, she was proceeded ex -parte. It is well settled that in proceedings under the Guardians and Wards Act, the paramount consideration is the welfare of minor children. There are allegations and counter allegations in the application for appointment of guardianship and its reply. Therefore, it would be in the interest of justice that evidence of both the sides is recorded and then a suitable order is passed. ( 3. ) THE present case is of such nature in which the parties can not put forward their case before the Family Court without the assistance of the Counsel. Therefore, the Family Court will permit both the parties to be represented through Advocates. In such complicated cases normally the Family Courts should permit the Advocates to represent the parties so that there are no chances of any injustice to the parties. In this connection the decision of the Division Bench of Bombay High Court in Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi, AIR 1991 Bombay 105, should be referred to. Certain portions of Paras 17 to 19 of this judgment are reproduced as under :- " 17. . . . . . A perusal of Section 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 Section 13 does not prescribe a total bar to representation by a legal practitioner which bar would itself be unconstitutional. . A perusal of Section 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 Section 13 does not prescribe a total bar to representation by a legal practitioner which bar would itself be unconstitutional. The intendment 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 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. . . . . . . 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 lawyer 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 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. 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, Rule 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 Section 13 with Rule 37 that adequate provision has been made for legal representation and in the absence of convincing reasons, such persmission ought not to be turned down. " ( 4. ) RULE 14 of the Madhya Pradesh Family Court Rules, 2002, is as under :-" 14. Permission for representation by a lawyer. The Court may permit the parties to be represented by a lawyer in Court. " ( 4. ) RULE 14 of the Madhya Pradesh Family Court Rules, 2002, is as under :-" 14. 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 question of law or fact if the Court is of the view that the party in person is not 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". This Rule is substantially the same as Rule 37 of the Family Courts (Court) Rules, 1988 quoted above. ( 5. ) WE respectfully agree with the observations of the Bombay High Court in the above case. The Family Courts will follow the law laid down in the above case. ( 6. ) THIS appeal is allowed. The order dated 21-10-2003 in M. J. C. No. 62 of 2003 is set aside. The applications under Section 5 of the Limitation Act, 1963 and under Order 9 Rule 13, CPC arc allowed. The ex-parte order dated 29-4-2003 is also set aside ( 7. ) THE parties are directed to appear before the Family Court, Bhopal on 5-7-2004. The Family Court will fix a date for evidence of both the parties and it" necessary summon the witnesses. A copy of this order be circulated to all the Family Courts in the Slate.