ORDER
B. Subashan Reddy, J.
1. In this writ petition, the constitutional validity of clause (a) of explanation to Section 7(1) of the Family Courts Act, 1984 relating to causes under Section 12(1)(c) of Hindu Marriage Act, 1955 is challenged as violative of Articles 14 and 21 of Indian Constitution.
2. We will mention some facts leading to filing of this writ petition. Petitioner is the husband and the 2nd Respondent is his wife.Both were married according to Hindu rites on 30-10-1996. But, shortly thereafter there was strained relationship and in the same year, OP No.408 of 1996 was filed by the 2nd Respondent before the Family Court, Visakhapatnam stating so many facts and pleading invalidity of the marriage on the ground that the marriage was not according to her free will and consent, but by force and fraud and that the marriage was void and a nullity. A criminal complaint in Cr. No.258 of 1996 has also been filed. But, that is a question apart. The further complaint of the petitioner is that even though, he had filed IA No.345 of 1997 seeking assistance of an advocate to conduct the case on his behalf, the same was dismissed and CRP No.2108 of 1997 filed against the same was withdrawn and then this writ petition has been filed questioning the constitutional vires of the provision itself.
3. It is apt to extract the provisions which arise for interpretation in this case :
'7. Jurisdiction:--(1) Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and
(b) be deemed for the purposes of exercising such jurisdiction under such law, to be a District Court, as the case may be, such Subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation :--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely :
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be,annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage,' The above provision is of the Family Courts Act, 1984. Section 12(1)(c) of Hindu Marriage Act, 1955 reads:
'12. Voidable marriage :--(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
(a) xxx xxx xxx (b) xxx xxx xxx (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud.'
4. Mr. N.V. Ranganadham, the learned senior Counsel appearing for the petitioner vehemently contends that the provisions contained in Clause (a) of Explanation to Section 7(1) of the Family Courts Act, 1984 is arbitrary and also affects the fundamental right to life and thus, is repugnant to Articles 14 and 21 of Indian Constitution. He submits that the causes under the Hindu Marriage Act, 1955 are triable by the civil Courts where the Code of Civil Procedure is applicable and where the legal practitioners can be engaged as of right and rules of Evidence Act are applicable and taking out such causes out of the civil Court and entrusting to Family Courts where the rules of evidence of Indian Evidence Act are made inapplicable and even the legal practitioners are not allowed, is arbitrary and also invades fundamental right to life. He submits that the Family Courts Act, by its very nature and constitution, deals with the causes arising out of the admitted marriage and cannot deal with the disputed marriage. For this purpose, he takes us to the statement of objects and reasons laying emphasis on the Family Courts being set-up for the settlement of family disputes which will take-in the disputearising out of a marnage meaning to say admitted marriage and not disputed marriage. He also relies upon a judgment of the Bombay High Court in Kamal V.M. Allaudin v. Raja Shaik, : AIR1990Bom299 . In the said case several questions arose and mainly of the ouster of the onginal junsdiction of the Bombay High Court to deal with the matrimonial cause. The Bombay High Court held that in grey areas where Family Court is not invested with the jurisdiction, the Bombay High Court still retained the original jurisdiction and that in matters specified under the Family Courts Act, the Family Court is entitled to adjudicate the disputes arising within its territorial jurisdiction
5. Mr. N. V. Ranganadham, the learned Counsel, however, stresses on what is stated by the Bombay High Court in clause (v) of Paragraph 68 of the judgment which reads :
'Suits or petitions wherein matrimonial relief is not sought in the nature contemplated by any of the Clauses (a) to (f) of Explanation to Section 7, but is based on non-existence of matrimonial relationship such as where the marriage is denied or is alleged to be void will not be cognizable by the Family Court and will not be liable to be transferred from the High Court.'
We have scanned the judgment of the Bombay High Court and with respect to the said High Court, we have to say that there was no such issue which arose for consideration and there is also no discussion on the above aspect. In fact, the aspect which was discussed was about the guardianship of the minor, even while saying that the issue also did not arise for consideration. Since guardianship issue is a question apart in this writ petition, we do not want to dilate on the said aspect. Suffice it to say that Clause (a) of Explanation to Section 7 did not fall fcr consideration in the said case. Further, what is deducible from the above judgment is that where the Family Court is established under the Family Courts Act, 1984, it has to be manned by the cadre of a District Judge, which equivalent cadre also mans the District Court and all matters stated in the Act and which arise within the territorial jurisdictionof the Family Court are to be tried and adjudicated only by the Family Court and not by any other Court, be it Civil or Criminal. In any event, the adjudication relating to the rights of the Bombay High Court on its original jurisdiction is no way relevant in the instant case as the High Court of Andhra Pradesh is never vested with any such original jurisdiction to try a matrimonial cause or a suit with regard to annulment of a marriage under Hindu Marriage Act or common law remedy, on its original side. Further, on principle, the Bombay High Court in the above case, has categorically held that what were hitherto triable by District Court are now triable by the Family Court and even the matters pending are to be transferred to the Family Court for adjudication. In view of the above discussion, the above Bombay High Court's judgment does not have any relevance or bearing to this case.
6. We are not impressed by the argument of Mr. N.V. Ranganadham that the Statement of Objects and Reasons refer to settlement of disputes relating to marriage and family affairs and as such, the Family Courts Act, 1984 can be made applicable only to the causes arising out of an admitted marriage and that the dispute regarding annulment of marriage is totally alien to the statement of objects and reasons and Preamble of Family Courts Act, 1984 and as such Clause (a) of explanation to Section 7 of the Family Courts Act is ultra vires. It has to be borne in mind that while interpreting the statute, the specific provisions of statute are read and understood and have to be interpreted in consistence with the language and intention of the said legal provisions and if the language and intention of the legal provisions are clear and unambiguous, then, mere is no need to take the aid of preamble or Statement of Objects and Reasons. Further, in Interpretation of Statutes caption given to the Act is of little significance as it is always the express legal provisions which operate and the adjudication has to be made only basing upon the said express provisions of the statute unguided by the nature of the caption of the Act or the Statement of Objects and Reasons or even the Preamble thereto. Merely becausein the Statement of Objects and Reasons and the Preamble, it is stated that Family Courts Act is 'an Act to provide for the establishment of the 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', it cannot be construed that the dispute with regard to very existence of marriage cannot be a subject for adjudication by a Family Court under the Family Courts Act, 1984. The words '..... settlement of disputes relating tomarriage ..... 'takes in not only the mattersof an admitted marriage, but also a dispute with regard to the very existence of the marriage as the existence or otherwise of a marriage is also a dispute relating to marriage.
7. In view of what is stated supra, the challenge to vires of Clause (a) of Explanation to Section 7 of the Family Courts Act falls and we hold that the said provision is constitutionally valid. The same reasoning and finding is applicable to Clause (b) of Explanation to Section 7 of the Act as it is inter related to Clause (a).
8. The next question is right to be represented by a legal practitioner in proceedings before the Family Court. Section 13 of the Act reads :
'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.'
9. Advocates are enrolled under the Advocates Act, 1961. The distinction between a Pleader and an Advocate has been done away with and there is only one class of legal practitioners i.e., 'Advocates'. Advocates are enrolled by the Bar Council after scrutinising the eligibility thereto. Under Section 30 of Advocates Act, 1961, which is a Central enactment, Advocates are entitled to practise as of right in all Courts and it is needless tomention that the Family Court is a Court. But, we are not apprised as to whether the said section came into operation as it commences only on notification being issued under Section 1(3) of the said Act. While the State made law may not have over-riding effect over the Advocates Act or for that reason. Legal Practitioners Act or Bar Council's Act, Family Courts Act being a Central enactment, it cannot be said that bar of appearance of advocates before the said Court will become repugnant and more so, when there is no material before us with regard to the operation of Section 30 of Advocates Act. A decade back, the Supreme Court while noticing the said aspect of non issue of notification of commencement of Section 30 of Advocates Act, 1961, had given time of six months to consider as to whether circumstances existed to enforce the said legal provision, but even after a decade, we are not sure as to whether the said provision has come into effect There is no light thrown on the said vital issue. Be that as it may, it cannot be read into the Family Courts Act that Advocates' appearance is totally barred. May be, it cannot be projected that the legal practitioners are having fundamental right to practise in all the Courts including the Family Court and that Section 13 is unconstitutional. But, once the Family Courts Act recognises the necessity of taking the assistance of a legal practitioner, the bar of appearance of legal practitioner before Family Court cannot be read into the Family Courts Act. But, in the instant case, such a plea made by the petitioner seeking appointment of legal practitioner was negatived by the Family Court. Perhaps, Family Court was of the opinion that it has got the unfettered discretion either to allow or not the appearance of a legal practitioner and that if it thinks fit to seek legal assistance, it will do so because of the proviso to Section 13.
10. While main Section 13 deals with appointment of legal practitioners by the parties, proviso deals with the power of the Family Court to appoint a legal practitioner as an amicus curiae. Both should not be mixed up and confused. It only connotes that while the party cannot claim to appoint legalpractitioners to plead his/her cause as of right, an exception is carved out in proviso vesting the jurisdiction in the Family Court to seek the assistance of a legal practitioner by appointing any advocate as amicus curiae to assist the Court. But, that does not mean to say that parties are not at all entitled to appoint legal practitioners to plead their causes before the Family Court and that such legal practitioner can appear only when the Family Court appoints as amicus curiae. Section 13 and its proviso do not spell out any such meaning. Truly understood, Section 13 does not create a total embargo on the parties before the Family Court to engage advocates. Even under the Industrial Disputes Act and the rules made thereunder, the legal practitioner cannot be appointed to plead for the parties unless permission to that effect is granted by the Court, be it Labour Court or Industrial Tribunal. The kind of disputes tried by the Courts/Tribunals under the Industrial Disputes Act are entirely different than that of the disputes before the Family Court. Further, even before Labour Courts and Industrial Tribunals, lawyers are permitted. If the workmen appoint them, then the management also is permitted. That is based on equality clause as workmen and management are unequal s and on the ground that mighty management should not defeat the cause of a tiny workmen because of the financial disability of the latter. It is in that context, there is a regulation with regard to grant of permission or otherwise of appearance of a legal practitioners, before Industrial Tribunals and Labour Courts. Further, very many conflicting and intricate questions of law and facts as arising in the case of civil rights may not arise before the above Courts/Tribunals.
11. All matters which are enumerated in the Family Courts Act for being tried by the Family Court were hitherto triable by the common law Courts. Because of the enactment of Family Courts Act, 1984, the jurisdiction of the said common law Courts is taken away and is invested in the Family Courts. But, Family Courts are not established everywhere in Andhra Pradesh and same is the case in other parts of the country. They are establishedin the cities with large population. In die State of Andhra Pradesh, there are Family Courts set-up in the cities of Hyderabad, Secunderabad, Warangal, Kurnool, Tirupathi, Vijayawada and Visakhapatnam and their territorial jurisdiction is ear-marked which extends to the limits of its Municipal Corporations. In other areas of Andhra Pradesh, the common law Courts which were exercising the jurisdiction are still exercising the jurisdiction over the matters enumerated in the Family Courts Act. We are unable to understand as to why Family Courts cannot be created for the rest of the areas of Andhra Pradesh also as there is no logic in saying that only in cities having large population, there is a necessity of settlement of cases and that too by adopting a special procedure and that such necessity does not arise in other areas of Andhra Pradesh. We hope and trust that the law making authorities as also the Government take note of this and remove this anomaly.
12. Coming to the subject of representation of legal practitioners before the Family Court, the procedure is some what different than that of common law Court and as the common law Court procedure is adversary and as by virtue of Section 9 of Family Courts Act, a duty is cast on the Family Court to make endeavour to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceedings and should the Family Court feel that there is a reasonable possibility of settlement between the parties, the proceedings have to be adjourned for a reasonable period to enable the parties to effect such settlement. We make it clear that the Family Court shall not skip this important stage and per se the Family Court on the first appearance of the respondents shall make endeavour as aforesaid and only if it comes to the conclusion after the above exercise that the settlement is impossible, then the case should be posted for further steps such as written statement/counter, issues, trial and so on. Family Courts do not just decide the issues relating to the marriage simplicitor regarding the performance of rituals or even the aspects of cruelty which are within the knowledge of the parties themselves and whichthey themselves can divulge and which, ordinarily, do not percolate to other members of the society or even to the neighbours. On the above aspects, legal practitioners assistance may not be necessary. There may be issues of impotency on the part of the husband and frigidity on the part of the wife and even such things can be effectively elicited and analysed by the Family Court and if necessary with the assistance of a medical expert. On such issues also, a legal practitioner may not be necessary. But, the same cannot be the situation in the adjudication of tights involving complicated and intricate questions of facts and law. The provisions of Code of Civil Procedure as also the Code of Criminal Procedure are made applicable to the proceedings before the Family Court by Section 10 of the Act. Indian Evidence Act, 1872 is also applicable because of Section 14 of the Family Courts Act, but with some variation relating to the admissibility of the material therein, which may be found inadmissible in the common law Court. Code of Civil Procedure was suitably amended by incorporating Order XXXIIA by the Amending Act of 1976. Such benefit of exemptions of record of admissibility of certain materials enumerated under Section 14 of the Family Courts Act having not been extended to the litigants in resolution of similar disputes by common law Courts where the Family Courts do not operate, we hope that the law-makers will take note of this anomaly and set right the situation. Even if the Family Courts are not set-up in the areas other than cities, Order XXXII-A of CPC can be suitably amended incorporating a provision analogous to Section 14 of the Family Courts Act, 1984. As otherwise, the same class of litigants will be dissimilarly treated and materials which are otherwise admissible before Family Courts informally, cannot be admitted in evidence in similar matters before the common law Court because of the application of the Indian Evidence Act, 1872.
13, Order XXXII-A of CPC was carved out for matters concerning the family and there, there is no similar provision analogous to Section 13 of Family Courts Act. We areunable to understand as to why the Parliament made such a distinction between the same class of litigants merely because of their places of residence. The place of residence cannot form a nexus for the purpose of discrimination of this kind where a party in common law Court can appoint a legal practitioner as of right and for a similar cause, a party before the Family Court cannot have such a right. Under Section 8 of the Family Courts Act, for the resolution of disputes enumerated therein, the jurisdiction of other Courts within its territorial limits is excluded. As such, there is no option for parties, but to submit to the jurisdiction of the Family Court for the matters arising under Section 7 of the Act. In fact, matters which are pending have to be transferred. Varied subjects enumerated under Clauses (a) to (g) of Explanation to Section 7 of the Act such as, nullity of marriage, restitution of conjugal rights, judicial separation, dissolution of marriage, invalidity of the marriage, matrimonial status of any person, property of the parties and other orders including injunction relating to the said property, other matters arising out of marital relationship, legitimacy of any person, civil maintenance, guardianship of the person, custody and access to any minor, maintenance under Section 125 Cr.P.C arise for adjudication. In fact, the 'scope of jurisdiction is kept so wide that the Family Court can be invested with the adjudication of other disputes arising under other existing enactments which have to be understood as existing and to be enacted. Important and complicated pleadings, clarity as to issues, evidence to be led, chief and cross-examination to be conducted, necessity of re-examination, arguments to be advanced having regard to the evidence, both oral and documentary, are involved in proceedings before the Family Court and as such, a party may feel to have legal assistance and denial oflegal assistance in such cases will not further the cause of justice, but in fact, hinder and result in miscarriage of justice. Ignorance of law may not be the excuse, but ignorance of the parties to plead before the Court can be the excuse and if the party thinks that it cannot effectively project its legal rights, such party should havethe right to appoint a legal practitioner and that is how Section 13 of Family Courts Act has to be understood and interpreted and we do so. But, if a party to the lis before the Family Court appoints an advocate beyond the stage of conciliation, then the party-in-opposition shall not only be entitled to appoint a legal practitioner, but if the economic situation does not permit such party in opposition, then the Family Court shall be entitled to impose upon the other party to bear the reasonable costs of such legal practitioner. In this regard, the Family Court shall follow the concept of Section 24 of Hindu Marriage Act, 1955.
14. In view of what is stated supra :
(1) we uphold the constitutional vires of Clause (a) of Explanation to Section 7 of Family Courts Act, 1984;
(2) that the main provision of Section 13 of Family Courts Act, 1984 permits the parties to engage legal practitioners, but beyond the stage of impossibility of reconciliation exercised under Section 9 of the Act;
(3) under proviso to Section 13 of the Family Courts Act, 1984, the Family Court shall be entitled to appoint amicus curiae to assist the said Court in addition to the legal practitioners, as may be appointed by the parties; and
(4) that the Family Courts shall be entitled to impose upon a party before it who is economically sound and who can appoint a legal practitioner in the case of the contest, directing him/her to bear the legal expenses of the other spouse/ party, on the analogy of Section 24 of the Hindu Marriage Act, 1955.
15. The writ petition is disposed of accordingly. No costs.