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Judgment
This appeal U/s 19(1) of the Family Courts Act, 1984 ("the Act" for short) is directed against the order dated 17-8-2013 passed by the learned Judge, Family Court, West Tripura in Title Suit (RCR) No. 155 of 2012 for restituting the conjugal rights of the respondent-husband vis-?-vis the appellant.
No representation from the respondent despite proper service of notice. After hearing Mr. K. Nath, the learned counsel for the appellant at length, it becomes clear that the controversy centers around the correct procedure to be adopted by the Family Court in examining the parties. The case of the appellant is that she and her husband solemnized their marriage about 16 years ago after duly observing Hindu rites and rituals at the residence of her father at Nutan Nagar under East Agartala Police Station. From this marriage, they were blessed with two sons, who at the time of filing the appeal, were aged 16 years and 12 years respectively. While the elder son is residing with the appellant, the younger son is residing with the respondent. The marriage apparently went to the rock, which resulted in their separation and living apart. The respondent thereupon instituted Title Suit (RCR) No. 155 of 2012 U/s 9 of the Hindu Marriage Act, 1955 before the learned Judge, Family Court, Sadar, Agartala, West Tripura seeking a decree of conjugal rights against the appellant. The appellant contested the suit and denied all the allegations of the respondent. In particular, she asserted that a reconciliation meeting was convened by the Nutan Nagar Gram Panchayat on 23-3-2011 wherein a resolution was passed to the effect, among others, that both the appellant and the respondent would live separately from each other for two years whereafter they would again decide whether they would live together or not. The appellant made allegations against the respondent about his torture, abuse and cruel treatment upon her. In utter disregard of the resolution passed by the Gram Panchayat, the respondent instituted the suit against her, which resulted in the impugned order.
The Family Court framed one issue, namely, whether the husband-petitioner is entitled to get a decree of restitution of conjugal rights with his wife-respondent? Two witnesses were examined on behalf of the respondent-husband to substantiate his case. Similarly, two witnesses were examined on behalf of the appellant to prove her case. The Family Court at the conclusion of the trial held that it did not find any reason for the appellant live separately or to withdraw from the respondent and, therefore, allowed the prayer of the respondent for restitution of his conjugal rights. The Family Court, accordingly, directed the appellant to immediately go back to her marital home and restore conjugal life with him.
A number of contentions have been raised by Mr. K. Nath, the learned counsel for the appellant to assail the impugned order, but ultimately confines himself to the absence of legal assistance to defend herself thereby causing grave prejudice to her. He draws my attention to her cross-examination of PW-1 and 2 which speaks volume on the ineffectiveness thereof due to her ignorance about the art of cross-examination. According to the learned counsel, the appellant is absolutely unaware of even the meaning of cross-examination or the purpose of cross-examination; she should have been informed, on the peculiar facts of this case, by the Family Court of the need to arrange a counsel to defend her. The learned counsel, therefore, submits that the proceedings adopted by the trial court resulting in the impugned order suffer from grave miscarriage of justice warranting the setting aside thereof on this ground alone.
After hearing the learned counsel for the appellant, the question which falls for consideration in this appeal is whether the Family Court has the duty to inform ignorant litigant of a matrimonial dispute to engage a counsel to assist him/her to present his/her case. Family Courts were established with a view to make the procedure less technical and the approach family oriented. The object of enacting the Act was to settle matrimonial disputes by mutual consent of the parties; the effort is to facilitate settlement or reconciliation to the extent possible and not towards adjudication. This is precisely the reason for discouraging the participation of lawyers in matrimonial dispute. Section 13 of the Act is in the following terms:
"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."
The scope and ambit of Section 13 of the Act has been elaborately explained by the Division Bench of this Court in Mat. Appeal No. 2 of 2009 (Smt. Anjana Dey (Mandal) v. Shri Subal Mandal). The relevant parts of the judgment are reproduced below:
"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.
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.
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 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.
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. 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 the 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 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.
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 of 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, 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."
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. 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.
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.
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.
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 levelled 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."
From the aforesaid decisions of this Court and the Bombay High Court, the following principles can be culled out for the guidance of the Family Court:
a) If the Presiding Officer feels that any party, more particularly, the woman, is unable to prepare her case in a proper manner due to reason of illiteracy or otherwise, it shall be the duty of the Presiding Officer and the Counselor to permit the woman is permitted to engage a counsel of her choice or to provide a legal aid counsel if she, due to poverty, is unable to engage a lawyer.
b) In case, the Family Court feels that a lawyer should not be appointed to assist the woman, then the Counselor must aid and advise the woman as to how she should deal with the case.
c) Section 13 of the Act does not totally prohibit a party of a Family Court from being represented by a legal practitioner, which bar would itself to unconstitutional; the section itself makes a provision for a situation whereby the Court may seek the assistance of a legal expert as amicus curiae.
d) It would 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 that stage or at the subsequent stage of the proceedings, permission may be granted by the Family Court if it is satisfied that the party requires such assistance and would be handicapped if legal representation is not permitted.
e) If the case involves complicated questions of law or fact, and 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 reason, the Court may permit the parties to be represented by a lawyer in Court.
f) The right of cross-examination is a very important right; the parties should invariably be allowed to cross-examine the witnesses produced by either of the parties; this is where representation by counsel could be indispensable.
g) In case, the parties before a Family Court are unrepresented by counsel, then the Family Court as well as the Counselor attached to that Court must at the first instance try to arrive at an amicable settlement of the case, but if such efforts fail, they shall aid and advise the parties as to how they should proceed in the matter.
The instant case is a glaring example of gross injustice resulting from the ignorance of the appellant in conducting her case. The suit is filed by the husband against the wife for a decree of divorce. The cross-examination of the witnesses of the petitioner (husband) is confined to this: "It is not a fact that I deposed falsely". It is also interesting to note that the cross-examination of the defence witnesses by the petitioner is equally confined to this: "It is not a fact that I deposed false". The petitioner examined two witnesses including himself to prove his case. The wife examined herself as the defence witness and no other witnesses are examined to disprove the case of her husband. In my opinion, such pathetic adduction of evidence is the result of ignorance of procedural law by both the parties. The examinations-in-chief on affidavits are equally sketchy and lack in material particulars. Anyway, since examinations-in-chief are prepared in advance and not extempore, the same can be maintained at the peril of the husband. However, one thing stands out. The petitioner herein could have presented her case more effectively with the aid and able assistance of the Counselor, whose duty is to assist the Family Court in the discharge of its functions, namely, to decide the dispute in accordance with law. If the Family Court finds the assistance rendered by the Counselor to be wanting in any manner, which is, unfortunately the case here, it should have either permitted the wife to engage a counsel of her choice or provided her a legal aid counsel to assist her if she could not do so. In our opinion, the proceedings of the Family Court left much to be desired. The proceedings are vitiated by non-application of mind and are contrary to the guidelines (a), (d) and (e) laid down by this Court in Leela Mahadeo Joshi case (supra). This calls for the interference of this Court.
The offshoot of the foregoing discussion is that this appeal stands allowed. The impugned judgment is set aside. The case is, therefore, remanded to the Family Court, West Tripura, Agartala for further proceedings at the stage of cross-examination of witnesses in accordance with law and keeping in mind the guidelines indicated above. No cost. Transmit the L.C. record forthwith. The parties are directed to appear before the trial court on 2-2-2017 for further proceedings.