Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 207 (TRI)

Rinku Biswas v. Dilip Biswas

2014-06-04

S.TALAPATRA, U.B.SAHA

body2014
JUDGMENT S. Talapatra, J. 1. Both the appeal, being F.A. No. 04/2011, only the 'appeal' hereinafter, and the criminal revision petition, being Crl. Rev. P. No. 16/2011, only the 'revision petition' hereinafter, are taken up together for disposal as the subject matter of those matters are ex facie entwined and any decision in the appeal would inescapably impact the decision in the criminal revision petition, in view of exception provided in Section 125(4) of the Cr.P.C. Ms. P. Dhar, learned counsel appearing for both the appellant and the petitioner has submitted that while passing the impugned judgment dated 03.01.2011, delivered in T.S. (RCR) No. 129/2010 and the order dated 03.01.2011, delivered in Misc. 06/2010, the Family Court has committed serious procedural irregularity and appreciated the evidence in a manner that has resulted in the miscarriage of justice. 2. From the other side, Ms. R. Guha, learned counsel appearing for the respondent has submitted that in view of the provisions of Sections 15 and 16 of the Family Courts Act, 1984, it cannot be stated that the Family Court has committed any irregularity in conducting the proceeding or in appreciating the evidence. If the evidence so recorded by the Family Court are weighed, it would be apparent that the appellant and the petitioner could not satisfactorily introduce the evidence, establishing her reasons of leaving the matrimonial home. In one breath, she has stated to the witnesses that for impotency of the respondent, she had left the matrimonial home, but on the other breath, her reason as sought to be established is that for inhuman torture she had to leave the matrimonial home. 3. While scrutinising the record, we find that the parties were not allowed to cross-examine the witnesses adduced by the either parties. That apart, the materials in the petition for restoration, being T.S. (RCR) No. 129/2010 had been used in the proceeding drawn under Section 125 of the Cr.P.C., being Misc. 06/2010. Such proceeding cannot be sustained in view of the decision of this Court in Anjana Dey (Mandal) vs. Subal Mandal, reported in (2014) 1 TLR 773, where this Court has observed as under: 4. Reference may be made to the provisions of the Family Courts Act, 1984. 06/2010. Such proceeding cannot be sustained in view of the decision of this Court in Anjana Dey (Mandal) vs. Subal Mandal, reported in (2014) 1 TLR 773, where this Court has observed as under: 4. Reference may be made to the provisions of the Family Courts Act, 1984. Section 10 lays down the procedure generally to be followed and provides that the Code of Civil Procedure and the Code of Criminal Procedure shall apply subject to the rules framed under the Act. However, the Family Court can always lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings. 5. Section 11 of the Act provides that all proceedings are to be held in camera and Section 12 permits the Family Court to take assistance of a medical expert or any other welfare expert. 6. Section 13 reads as follows:- "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." 7. It is thus obvious that no party to a suit or proceeding before a Family Court is entitled as a matter of right to be represented by a legal practitioner. However, me Family Court is empowered to seek the assistance of a legal expert as amicus curiae. 8. Section 14 of the Act permits the Family Court to receive in evidence certain documents even if they are not relevant or admissible under the Indian Evidence Act. 9. Sections 15 and 16 of the Family Courts Act read as follows:- "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. 16. 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." 10. A bare perusal of these provisions shows that though the Family Court may not record the evidence of the witnesses at great length, but a memorandum of substance of the deposition must be recorded and signed both by the witness as well as by the Presiding Judge. 11. Section 16 empowers the Family Court to receive evidence of formal character by way of affidavit. It is obvious that it is only evidence of formal character which can be received by way of affidavit and all other evidence must be recorded orally. 12. One of the main issues which arises for consideration is whether the right to cross-examine witnesses is available to the parties under the Family Courts Act. A perusal of the record of the present case shows that in the divorce case filed by the husband, as many as 6(six) witnesses were examined on behalf of the husband and 8(eight) witnesses on behalf of the wife. If we go through the statements of the witnesses, we find that no opportunity was given to the opposite party to cross-examine the witnesses. On perusal of the statements of the witnesses examined on behalf of the wife, it is apparent that the wife who was not represented by a Counsel had no knowledge as to how a witness has to be examined and the statements of her witnesses are recorded in such a manner which gives the impression that no effort was being made either by the Presiding Officer of the Court or the Counsellor to assist the lady in examining her witnesses. This has, in our opinion, resulted in gross miscarriage of justice. 13. The Family Courts were established with a view to make the procedure less technical and the approach more family oriented. This has, in our opinion, resulted in gross miscarriage of justice. 13. The Family Courts were established with a view to make the procedure less technical and the approach more family oriented. The object was that such matrimonial disputes should be settled by mutual consent of the parties and the effort is towards settlement and not towards adjudication. As pointed out above, lawyers are not permitted to appear. 14. Our experience has been that when lawyers are not permitted to appear, it is the women who suffer more. In Indian society, husbands are normally better educated than the wives. In many cases, especially in the lower strata of society, the women would be illiterate or barely educated whereas the men would be educated and also employed. The men would be also more worldly wise. Therefore, though a man may be in a position to prepare pleadings, lead evidence and examine and cross-examine witnesses in many cases, a woman who may not have even stepped out of her house or village would be overawed by the atmosphere in a Family Court and would be unable to match her husband. 15. It is here that the role of the Counsellor appointed under the Family Courts Act as well as the Presiding Officer of the Court comes in. If the Presiding Officer feels that any party, more specially the woman, is unable to present her case in a proper manner due to the reason of illiteracy or otherwise, it is the duty of the Counsellor and the Family Court to ensure that the woman is given legal aid by providing a legal aid counsel to her. Mechanically following Section 13 and rejecting the prayer for assistance of counsel is not proper. In case, the Family Court feels that a lawyer should not be appointed, then the Counsellor must aid and advise the woman as to how she should deal with the matter. 16. The Bombay High Court in Leela Mahadeo Joshi vs. Dr. Mahadeo Sitaram Joshi, (AIR 1991 BOMBAY 105), dealing with the provisions of the Family Courts Act held as follows:- 17. 16. The Bombay High Court in Leela Mahadeo Joshi vs. Dr. Mahadeo Sitaram Joshi, (AIR 1991 BOMBAY 105), dealing with the provisions of the Family Courts Act held as follows:- 17. A strong grievance has been made before us, in several cases, that have come up in appeal, from the Family Courts at Pune and at Bombay that the representation by Advocates is not being permitted and that avoidable situations have arisen because the cases have gone by default and have had to be either remanded by the High Court or entertained in appeal. A perusal of S. 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 S. 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 breakdown or dispute being essentially of a personal nature, that it maybe 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. We are, however, informed that as far as uneducated and poor persons are concerned that they are being totally handicapped in the conduct of their cases for want of legal assistance. Even as far as persons coming from the educated and professional strata are concerned, the obvious difficulty that is involved, namely the drafting of applications and pleadings in consonance with Court requirements and the ability to conduct an examination-in-chief or a cross-examination are skills which one cannot expect of a lay person. Even as far as persons coming from the educated and professional strata are concerned, the obvious difficulty that is involved, namely the drafting of applications and pleadings in consonance with Court requirements and the ability to conduct an examination-in-chief or a cross-examination are skills which one cannot expect of a lay person. The inevitable result is that the parties are handicapped resulting in a possible miscarriage of justice, not to mention delays and the attendant problem of having to take me matter in appeal to the High Court. This is not something which is within the ability of all the litigants. 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 lawyers 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 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. 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 visualise 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. 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, R. 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 S. 13 with R. 37 that adequate provision has been made for legal representation and in the absence of convincing reasons, such permission ought not to be turned down." 17. We would like to point out that though there is no similar provision like Rule 37 in Tripura, we are of the considered view that the approach of the Court while permitting a party to be represented by a counsel should be in consonance with the judgment of the Bombay High Court with which we totally agree. 18. The constitutional validity of the Family Courts Act was challenged before the Bombay High Court in Smt. Lata Pimple vs. The Union of India and others, (AIR 1993 BOMBAY 255) and one of the grounds raised was that Section 13 of the Act is violative of Articles 19, 21 and 39-A of the Constitution insofar as legal representation is not permitted. While rejecting this argument, the Bombay High Court held that there is no total prohibition of being represented by legal practitioner and rule 37 of the Rules permits a party to be represented by a lawyer in certain circumstances. The guidelines laid down in Leela Mahadeo Joshi (supra) were approved. 19. One of us (Talapatra, J) has also considered this aspect while sitting in a Division Bench of the Agartala Bench of the then Gauhati High Court. The guidelines laid down in Leela Mahadeo Joshi (supra) were approved. 19. One of us (Talapatra, J) has also considered this aspect while sitting in a Division Bench of the Agartala Bench of the then Gauhati High Court. In the said judgment, it was held as follows:- "36. No doubt, usually in the civil courts, unless the opportunity of the cross-examination is given, the examination in chief are not as a whole admitted in the evidence save and except where some admission appears. But in this case what we curiously find that the learned Judge, Family Court, South Tripura, Udaipur, has deviated from the normal rule of recording evidence but he has done the same uniformly and following a very simple method of inquiry. The respondent (the appellant herein) was even allowed to adduce her witnesses first and thereafter the petitioner (the respondent herein) was allowed to adduce his witnesses. No grievance surfaces from the record stated to have demonstrated by either of the parties in this regard. This court is also not oblivious of the fact that usually in the proceedings of the Family Court, no lawyer is permitted to represent the parties unless of course if permitted by the court. In view of this, even though this procedure cannot be claimed to be foolproof, cannot be even questioned at this stage by the appellant. However, this procedure is not advisable to be followed by the Family Courts, rather the Principal Counselor of the Family Court where no legal practitioner is permitted to represent the case of the parties would demonstrate the rights of cross-examination available to the parties and how to exercised the same before recording of the evidence in a detached manner without making any reference to the subject-matter of the case. It is also expected that the adverse party would be asked by the Family Court to question or to suggest or to bring contradiction or omission of previous admission from the witnesses appearing for the one party or from the other party." 20. The right of cross-examination is a very important right. In many cases the Family Courts are recording the testimony by way of affidavit. When affidavits are tendered in evidence, it has been found that more often than not these are affidavits in the language of Counsel where many facts relevant and irrelevant are stated. It is necessary that such witnesses be cross-examined. In many cases the Family Courts are recording the testimony by way of affidavit. When affidavits are tendered in evidence, it has been found that more often than not these are affidavits in the language of Counsel where many facts relevant and irrelevant are stated. It is necessary that such witnesses be cross-examined. Even where a witness appears in person before the Court, the opposite party has a right to cross-examine such witness. Without cross-examination, the veracity of the statement made in the examination-in-chief cannot be tested. At the same time, the art of cross-examination is not so simple. It takes years of experience for a lawyer to learn how to effectively cross-examine a witness. How can we expect an illiterate villager to cross-examine the witnesses? As far as cross-examination is concerned, the same must be invariably allowed in every case. 21. De Smith in his treatise on Judicial Review of Administrative Action has held that cross-examination of witnesses must be permitted. This has become a part of the rule of the Audi Alteram Partem. 22. Wade in his exposition of Administrative Law has pointed out that failure to allow cross-examination by an objector leads to quashing of the administrative decision. 23. Where matters are simple and the disputes are limited, the Family Court may be justified in refusing legal aid, but here also it is the duty of the Family Court as well as the Counsellor attached with the Family Court to ensure that the parties are able to comprehend what is the dispute and they are also effectively able to put forth their case. In case, the matters in issue are complicated or serious allegations have been leveled which may affect the reputation of any of the parties to the dispute, the party should be permitted to engage counsel and the rejection should not be in a mechanical manner. In the present case, we find that the lady has lost her case because she was not permitted to cross-examine the witnesses of the husband whose statements have been relied upon by the learned Family Judge. The lady was not even in a position to cross-examine the witnesses. She was even denied maintenance on similar grounds. 24. We, therefore, have no hesitation in setting aside both the orders passed by the Family Judge in T.S. (Divorce) 12 of 2008 and Cr. Misc./F.C./UDP/09 of 2008. The lady was not even in a position to cross-examine the witnesses. She was even denied maintenance on similar grounds. 24. We, therefore, have no hesitation in setting aside both the orders passed by the Family Judge in T.S. (Divorce) 12 of 2008 and Cr. Misc./F.C./UDP/09 of 2008. Both the matters are remanded to the learned Family Judge who shall decide the same after giving an opportunity to the parties to cross-examine the witnesses. In case, the lady desires, she shall be permitted to engage a counsel or she may be provided legal aid. In case, legal aid is provided to the lady, then obviously the husband shall also be entitled to be represented by counsel, if he so desires. [Emphasis supplied] 4. In view of above, we have no hesitation to interfere with and set aside the judgment dated 03.01.2011, delivered in T.S. (RCR) No. 129/2010 by the Family Court, West Tripura, Agartala and the order dated 03.01.2011, delivered in Misc. 06/2010 by the Family Court, West Tripura, Agartala. Both the matters are remanded to the Family Court for decision afresh after giving opportunity to the parties to cross-examine the witnesses. In case the parties approach the Family Court for leave to engage the counsel, they may be allowed to engage the counsel. If necessary, they may be provided the legal aid. It is needless to reiterate that the Family Court shall give due importance to the guidelines as given by the High Court of Tripura in Anjana Dey (Mandal). 5. The Family Court is directed to decide the matter as early as possible and, in any rate, not later than 30.09.2014. The appellant and the petitioner, namely Rinku Biswas may approach the Family Court for an interim order for maintenance allowance till the matters are finally heard. The Family Court is further directed that the proceeding under Section 125 of the Cr.P.C. and the proceeding under Section 9 of the Hindu Marriage Act, 1955 shall be decided separately, having regard to their divergence perspectives. It is no denying fact that the decision in some aspects in the proceeding under Section 9 of the Hindu Marriage Act, 1955 may have ramification on the decision of the proceeding under Section 125 of the Cr.P.C. or vice versa. It is no denying fact that the decision in some aspects in the proceeding under Section 9 of the Hindu Marriage Act, 1955 may have ramification on the decision of the proceeding under Section 125 of the Cr.P.C. or vice versa. Notwithstanding that, the decisions are to be taken on the basis of the evidence that would be available in the record of the proceedings. In the result, both the appeal and the revision petition are allowed. Send back the LCRs forthwith.