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2012 DIGILAW 1197 (GAU)

Biswajit Dey v. State of Assam

2012-10-09

B.D.AGARWAL

body2012
JUDGMENT B.D. Agarwal, J. 1. This criminal petition, filed under Section 482 of the Criminal Procedure Code, 1973, has raised certain issues with respect to the procedure to be followed by the Family Courts, while hearing an application for maintenance allowance and for other reliefs. Heard Mr. B.M. Choudhury, learned counsel for the petitioner (husband) and Mr. A.K. Purkayashtha, learned counsel for the respondent No. 2 (wife). The State of Assam is a formal party and it was represented by Mr. BB Gogoi, learned Additional Public Prosecutor for the State. In view of the legal issues raised in the Criminal Petition, Gauhati High Court was also impleaded as Respondent No. 3 and it was represented by Mr. N. Choudhury, learned Standing Counsel. 2. The criminal petition stems out of summary procedure being followed by the Family Courts in recording the statements of witnesses through Counselors and that too without allowing the parties to take the assistance of counsels. 3. Respondent No. 2 herein filed an application in the Family Court, Kamrup, Guwahati under Section 125 of the Criminal Procedure Code, 1973 (in short 'CrPC') seeking maintenance allowance for herself pleading that she is the legally wedded wife of the petitioner and her husband has wilfully refused and neglected to maintain the respondent despite having sufficient means and income. 4. On the basis of the averments made in the application, the Family Court has granted interim maintenance allowance @ Rs. 3000/- per month vide order dated 7.10.2010. Having received the notice from the Court, the husband appeared in the Court and filed his written statement, inter-alia, denying and disputing any marriage with the respondent No. 2. After filing of the pleadings, the case was listed for evidence on 29.3.2011. On that day, the husband filed a petition seeking leave of the Court to take assistance of a particular lawyer. Though the petition was taken on record, no order either allowing or rejecting the prayer was passed. On the other hand, the Court recorded deposition of two witnesses on the very same day through its Counsellor. The witnesses were also cross-examined by the Counsellor herself. Being aggrieved with this procedure adopted by the Family Court the husband has preferred this criminal petition. 5. Mr. B.M. Choudhury, learned counsel for the petitioner submitted that there is no absolute bar to allow a party to be represented or assisted by a legal practitioner. The witnesses were also cross-examined by the Counsellor herself. Being aggrieved with this procedure adopted by the Family Court the husband has preferred this criminal petition. 5. Mr. B.M. Choudhury, learned counsel for the petitioner submitted that there is no absolute bar to allow a party to be represented or assisted by a legal practitioner. According to the learned counsel, even if the Court was not willing to accede to the prayer of the petitioner the Court was obliged/required to either allow or reject the prayer of legal assistance. Having not done so, the proceeding conducted by the Family Court, more particularly keeping Petition No. 352 dated 29.3.2011 pending, is non est in law and, as such, the depositions of PWs 1 and 2 should be expunged from the record and the evidence should be recorded afresh in presence of a counsel for the petitioner. 6. Mr. B.M. Choudhury further went on to challenge the legality of the depositions of PWs-1 and 2 contending that a Counsellor of Family Court is neither competent nor authorised under law to record evidence of any witness. Referring to Section 15 of the Family Court Act, 1984 (briefly "the Act"), the learned counsel for the petitioner argued that oral evidence of witnesses must be recorded or caused to be recorded by the Judge of the Court and it is also mandatory for the Judge to sign the oral evidence of the witnesses. The learned counsel also argued that the deposition of a witness is not complete and cannot be treated as legal evidence unless the witness is cross-examined by the opposite party either himself or through his or her counsel. 7. The learned counsel for the petitioner also pleaded that when an application under Section 125 of the CrPC is filed in the Court of a Judicial Magistrate, the witnesses are allowed to be cross-examined either by the opposite party or by his or her lawyer. However, in the instant case, the legal right of cross-examination was denied to the petitioner though under Section 10 of the Family Court's Act applications for maintenance allowance are required to be decided in accordance with Chapter-IX of the CrPC. 8. Per contra, Mr. However, in the instant case, the legal right of cross-examination was denied to the petitioner though under Section 10 of the Family Court's Act applications for maintenance allowance are required to be decided in accordance with Chapter-IX of the CrPC. 8. Per contra, Mr. Purkayastha, learned counsel for the wife (respondent No. 2) submitted that Section 13 of the Act has put an embargo to engage a legal practitioner by either party and, as such, the petition filed by the petitioner on 29.3.2011 was not maintainable in law. Therefore, the proceeding is not vitiated despite there being no order on the said petition. With regard to the question as to whether oral evidence can be recorded by a Counsellor, Mr. Purkayastha submitted that the provisions of Section 15 has to be conjointly read with Section 10(3) wherein the Court is allowed to lay down its own procedure to decide the subject matter of the suit or proceeding. 9. Mr. N. Choudhury, learned Standing counsel, Gauhati High Court was of the view that delegation of power to record oral evidence by a Counsellor is not permitted under law nor is there any High Court circular in this regard. The learned Standing Counsel for the High Court was also of the view that the Family Courts basically adjudicate civil rights of the parties while deciding matrimonial suits as the Courts also decide the factum of marriage, legitimacy of children born through their wedlock, the allegations of adultery and cruelty etc. and such declarations also govern the rights of inheritance of movable and immovable properties. According to the learned counsel, in view of far reaching consequences of the declarations of Family Courts, it is advisable that in appropriate cases, the parties may be allowed to be represented by their counsels and at least the oral evidence should not be allowed to be recorded by a counsellor. 10. For effective disposal of this criminal petition, it is necessary to look at the provisions of Sections- 10, 13 and 15 of the Act, which are extracted below in extenso for ready reference: 10. 10. For effective disposal of this criminal petition, it is necessary to look at the provisions of Sections- 10, 13 and 15 of the Act, which are extracted below in extenso for ready reference: 10. Procedure generally- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Criminal Procedure Code, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. (2) Subject to the other provisions of this Act and rules, the provisions of the Criminal Procedure Code, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. 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: 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. 15. Record of oral evidence- In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. 11. The above apart, Section 16 of the Act also empowers the Court to receive evidence of formal character on affidavit. 11. The above apart, Section 16 of the Act also empowers the Court to receive evidence of formal character on affidavit. At the same time, Sub-section (2) of Section 16 equally authorizes a party to summon the person, who has filed his affidavit evidence and examine him. Since Section 16 will also have a bearing in this case the said provision is also quoted below: 16. Evidence of formal character on affidavit- (1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court. (2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit. 12. Section 21 of the Act empowers High Courts to frame Rules as it may deem necessary to carry out the objects and purpose of the Act. Sections 22 and 23 respectively empower the Central Government and State government to frame rules to carry out the purposes of the Act. 13. Pursuant to the powers confer upon the High Court; the Gauhati High Court has framed the Rules known as Family Court (Gauhati High Court) Rules, 1989. Similarly, the State of Assam has also framed rules known as Assam Family Court Rules, 1990. Strangely, both these rules have not addressed the methodology of recording of oral evidence or have clarified whether the Presiding Officers of the Family Courts can delegate the power of recording oral evidence of witnesses through their Counselors in the light of plenary power conferred upon the Family Courts under Section 10(3) of the Act. 14. Section 10 of the Act has made it clear that the provisions of the Code of Civil Procedure, 1908 shall apply to the suits and proceedings in Family Courts, other than the proceedings of maintenance allowance under Chapter-IX of the Code of Criminal Procedure. Under Order 18 Rule 4 CPC oral evidence of the witnesses in examination-in-chief are required to be given on affidavit. At the same time, Rule 4(2) of Order 18 allows recording of cross-examination either by Court or through a Commissioner appointed by it. Under Order 18 Rule 4 CPC oral evidence of the witnesses in examination-in-chief are required to be given on affidavit. At the same time, Rule 4(2) of Order 18 allows recording of cross-examination either by Court or through a Commissioner appointed by it. Now, the question is as to who should be allowed to record oral evidence and cross-examine the witnesses in the Family Courts. 15. Under Section 15 of the Act, a Judge of a Family court is permitted to record or cause to be recorded a memorandum of substance of the deposition. The words 'cause to be recorded' clearly indicates delegation of power by a family court judge to a counsellor or even to any other competent authority, who may be known as "Commissioner". Since Section 10 has allowed application of the procedure laid down in the Code of Civil Procedure Section 15 of the Act has to be read harmoniously and in juxtaposition with Order 18 Rule 4 of the CPC, which allows cross-examination of witnesses through 'Commissioner'. In other words, there should be no bar to get the evidence recorded through Counselors, who may be considered as Commissioners of the Family Courts. At this stage, I would like to remind myself that Section 10(3) of the Act has given ample power to the Family Courts to evolve their own procedure to decide the suits and proceedings. 16. It is the settled principle of law that when the language of the law is clear and unambiguous the courts are not permitted to re-write the law. In the case of S.D. Joshi Vs. High Court of Judicature at Bombay; reported (2011) 1 SCC 252 , the Hon'ble Supreme Court had the occasion to examine the object of the law and purpose behind constitution of Family Courts and their Lordships have observed thus: 50. In order to clearly understand the object of the legislature in establishing Family Courts, reference to the recommendations of the Law Commission would be useful. In its 59th Report, the Law Commission emphatically recommended that the court, in dealing with the disputes concerning family, ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts for an amicable settlement before the commencement of the trial. The same view was reiterated in the 230th Report of the Law Commission. The same view was reiterated in the 230th Report of the Law Commission. Despite the amendment to the Code of Civil Procedure, it was felt that the matters concerning family disputes were not being dealt with a conciliatory approach. Thus, the Bill, inter alia, provided for establishment of Family Courts by the State Governments. The State Governments were expected to set up these courts and family disputes were to be dealt with by these specially constituted courts. The most important feature of the Preamble of the Act was, "establishment of 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". This sufficiently indicates the limited jurisdiction that was vested in the Family Court under the provisions of the Act. The primary purpose of the Family Court was to promote conciliation and amicably settle the matters relating to matrimonial and family disputes rather than adjudicate on the same. 17. In the aforesaid case, the Apex Court has also differentiated the functions of the District Judges vis--vis Judges of Family Courts and has held that while the District Judges have wider jurisdiction the presiding officers of Family Courts have limited jurisdiction and decides matters, which strictly fall within the ambit and scope of Explanation to Section 7(1) of the Act only. Their Lordships have further held that right of representation and assistance by lawyers before the Family Courts is totally restricted in terms of Section 13 of the Act. Their Lordships further went on to hold that the Judges of the Family Courts do not hold any 'judicial office', as contemplated under Article 217 of the Constitution of India. In view of these prescriptions of the Hon'ble Supreme Court I hardly find any case to hold that the litigants have any legal right to claim their representation by legal practitioners in the Family Courts. The only exception to this rule is 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. Even the proviso to Section 13 of the Family Courts Act shall not confer any authority to the family courts to allow the parties in dispute to be represented by lawyers. Even the proviso to Section 13 of the Family Courts Act shall not confer any authority to the family courts to allow the parties in dispute to be represented by lawyers. In other words, the family courts shall not be allowed to frustrate the express provisions in Section 13 in the garb of devising its own procedure to settle the dispute under section 10(3) of the Act. 18. The preamble of the Act also indicates that this special law has been enacted for speedy settlement of disputes relating to marriage and matters connected therewith with special emphasis to resolve matrimonial disputes by way of conciliation and mediation. The Law Commission Reports and the observations of the Hon'ble Supreme Court also suggest that the proceedings in the family court should be in the nature of summary proceeding sans the mystic web of procedure laid down in the CPC. In my considered opinion, while empowering the family court judges to get the evidence recorded by another authority the legislature must have taken into consideration the growing number of matrimonial cases, pendency in the courts as well as in the interest of both the parties to get a judicial verdict as expeditiously as possible. I am also of the further view that if the law is made rigid that all the depositions should invariably be recorded by the judge himself/herself there will be every possibility of delay in disposal and resolving family disputes. Even otherwise recording of depositions by the "Commissioners" is a legally recognized procedure under Order XVIII Rule 4 CPC. Hence, there is no illegality in getting the evidence recorded through Counselors and the signatures of the Counselors in the evidence shall be treated as signatures of the judges of the Family Courts. 19. With regard to the issue of cross-examination, the learned counsel for the petitioner submitted that when an application under Section 125 CrPC is filed in the court of a Judicial Magistrate, the parties are allowed to be represented by their counsels and the witnesses are also allowed to be cross-examined by the legal representatives and the same procedure should be adhered to in the family courts, since Section 10(2) of the Act holds that such applications are to be decided as per the procedure prescribed in Chapter IX of the CrPC. 20. 20. It is the settled position of law that if a particular procedure of trial/enquiry is prescribed in a special law the same would prevail over the general law. One can refer to the cases of The Transport Commissioner, Andhra Pradesh Vs. S. Sardar Ali, (1983) 4 SCC 245 ; Moti Lal Vs. CBI, (2002) 4 SCC 713 ; State (Union of India) Vs. Ram Saran, (2003) 12 SCC 578 ; Moly Vs. State of Kerala, (2004) 4 SCC 584; Sarabjit Rick Singh Vs. Union of India, (2008) 2 SCC 417 and Suresh Nanda Vs. CBI, (2008) 3 SCC 674 . Besides this, in the case of Nazir Ahmad Vs. King-Emperor (AIR 1936 PC 252) and Bhavnagar University Vs. Palitana Sugar Mills (P) Ltd.: reported in (2003) 2 SCC 111 and in various other judgments the Apex Court has held that the procedure prescribed in a statute should be strictly adhered to. The observations made in the later judgment are reproduced below: The statutory interdict of use and enjoyment of the property must strictly construe. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said act are only creature of statute. They must act within the four corners thereof. 21. In the FC Act, the entire responsibility of recording evidence has been given to the Judge. Besides this, under Section 13 of the Act representation of the parties by the legal practitioners has been restricted and under Section 15 of the Act the Judge is only required to record the memorandum of depositions. Even otherwise, no specific method of enquiry has been provided in Chapter IX of the CrPC. On the other hand, the Apex Court has repeatedly observed that the enquiry under Section 125 CrPC should be of summary nature. To put it differently, an order passed under Chapter IX of the CrPC does not necessarily declare any civil right between the parties. In view of this, I hold that no miscarriage of justice has been caused to the petitioner for not allowing him to be represented by a lawyer. To put it differently, an order passed under Chapter IX of the CrPC does not necessarily declare any civil right between the parties. In view of this, I hold that no miscarriage of justice has been caused to the petitioner for not allowing him to be represented by a lawyer. Though no order, rejecting the petition in this regard, has been passed it can safely be presumed that the prayer has been rejected by the Family Court since a party has no vested right to be represented by a legal representative. Be that as it may, the legality and vires of Sections 13 and 15 of the Act have not been challenged in this proceeding. In the case of Smt. Lata Pimple Vs. Union of India AIR 1993 Bom 255 (DB), relied upon by the learned counsel for the petitioner, their Lordships have held that Section 13 of the Family Court's Act is neither discriminatory nor offending Article 14 of the Constitution. While holding so, their Lordships, however, have observed that there is no total prohibition to allow a party to be represented by a legal practitioner. In my considered opinion this observation is not tenable in law and in fact, is 'per incuriam' in view of the judgment of the Hon'ble Supreme Court in the case of S.D. Joshi (supra). 22. The above apart, the FC Act is a special law and under Section 20 the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. With regard to the applicability of CPC and CrPC the Hon'ble Supreme Court has clarified in the Judgment of S.D. Joshi that this is basically for the purpose of execution of the decrees and orders passed by the family courts. Rule 2(f) of the Assam Family Courts Rules, 1990 has defined 'Counsellor'. As per this definition Counselors should have suitable legal knowledge and working experience of social and family welfare. In view of the qualifications of Counselors there is little scope of mis-carriage of justice if the power of recording of evidence is delegated to them and also if the evidences are recorded without any assistance from lawyers. As per this definition Counselors should have suitable legal knowledge and working experience of social and family welfare. In view of the qualifications of Counselors there is little scope of mis-carriage of justice if the power of recording of evidence is delegated to them and also if the evidences are recorded without any assistance from lawyers. Since the duty is cast upon the judges of the Family Courts to record evidence of witnesses it is obvious that the power has been vested to the judges to elicit factual details and clarifications by way of putting questions to the witnesses in the form of cross-examination. Only when a case raises substantial question of law the court may appoint an amicus curiae to assist it. 23. For the forgoing reasons I hold that there was no illegality in recording the evidence of the witnesses by the counsellor of the family court. 24. Resultantly, the Criminal Petition stands dismissed. Stay order stands vacated. 25. Return the LCR records forthwith. Both the parties are directed to appear in the Family Court on 26.11.2012 and receive further directions. The Registry is directed to place a copy of this judgment before the Hon'ble Chief Justice in the administrative side, who may consider amendment of the "The Family Court (Gauhati High Court) Rules, 1989" in the light of the observations made in the judgment. As of now, there is no High Court circular prohibiting engagement of lawyers by the parties and allowing Family Courts in Assam to get the evidence recorded through Counselors. Hence, the Hon'ble Chief Justice may consider issuing appropriate circular, till the Rules are amended. Petition dismissed