Judgment:
L. Mohapatra, J.
1. This writ application is directed against the order dated 26.10.2005 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 211 of 2000 rejecting prayer of the petitioner to recall the order dated 23.9.2005, prayer for adjournment as well as prayer to cross-examine P.W. 1 by the counsel appointed by the Court as amicus curiae on behalf of the petitioner.
2. Shri Jena, learned Counsel for the petitioner challenges the order basically on two grounds, namely refusal of prayer for adjournment arbitrarily and denial of an opportunity to the counsel to cross-examine P.W. 1. Learned Counsel submitted that after the prayer for adjournment asked for on a reasonable ground was turned down, the counsel who was appointed as Amicus curiae prayed before the Court to permit him to cross-examine P.W. 1, but the same was refused on the ground that the petitioner was absent on that date and in her absence cross-examination was not permissible and that the learned Counsel appearing as Amicus curiae is only to assist the Court and cannot cross-examine the witness. It is further submitted that an Amicus curiae appointed by the Court has the same responsibility as that of an Advocate retained by the party for the purpose of conducting the case and therefore in absence of the party also the learned Counsel appearing as Amicus curiae should have been allowed to cross-examine P.W. 1. It was also contended by the learned Counsel that Section 13 of the Family Courts Act, 1984 does not put an absolute bar on appointment of an Advocate by a party to the proceeding before the Family Court and therefore though an Amicus curiae has been appointed by the Court he has the responsibility to defend the petitioner by doing all such acts as required to be done by an advocate retained by a party. In this connection, learned Counsel for the petitioner referred to Section 13 of the Family Courts Act, 1984 (hereinafter called the 'Act') and Rule 27 of the Family Court (Orissa) Rules, 1990 (hereinafter called the 'Rules') and also relied upon some decisions.
3. Shri Mohanty, learned Counsel for the opposite party, on the other hand, submitted that role of an Amicus curiae is limited and he/she cannot act as an Advocate retained by a party. It was contended by Sri Mohanty that Section 13 of the Act puts an absolute bar on engagement of an advocate by a party and proviso to the said provision only empowers the Court to take help of an Amicus curiae if he so desires. Learned Counsel also referred to a decision and submitted that the role of the Amicus Curiae cannot be equated with that of an Advocate retained by a party to conduct case on his behalf and therefore an Amicus curiae has no authority to cross-examine any witness examined by the adversary.
4. Shri Jagannath Patnaik, learned Senior Advocate who was present in Court was requested to assist the Court in this matter and the learned Counsel also made submissions in this regard and practically supported the stand taken by the opposite party so far it relates to role of an Amicus curiae in a proceeding.
5. The opposite party is the husband of the petitioner. He filed Civil Proceeding No. 211 of 2000 before-the Judge, Family Court, Cuttack against the petitioner praying for declaration that the marriage between the parties solemnized on 20.6.1999 is a nullity and/or in the alternative to pass a decree of divorce dissolving the said marriage. After receipt of the notice in the said case the petitioner appeared in the proceeding and fifed her written statement denying the allegations. A specific stand was taken with regard to territorial jurisdiction of the Court in entertaining the case. In course of hearing of the proceeding the petitioner prayed for permission to be represented through counsel but the said prayer was rejected by the learned Judge by order dated 5.12.2005 and in her absence the opposite party was examined as P.W. 1. It is alleged that during examination of the opposite party a counsel was putting question to the opposite party and his statement was being recorded and the same was objected to by the counsel engaged by the petitioner. But the learned Judge, Family Court did not entertain such objection. Challenging the order dated 5.1.2005 both the parties approached this Court in two writ applications vide W.P.(C) No. 1073 of 2005 and W.P.(C) No. 1460 of 2005. Both the writ applications were disposed of on 18.4.2005 directing that parties shall be allowed to take assistance of a legal practitioner who shall act as an Amicus curiae. After disposal of the writ applications the proceeding again continued and on some dates though parties were present the case could not be taken up and ultimately the case was fixed to 23.9.2005. On the said date P.W. 1 was to be cross-examined but the petitioner could not come to Cuttack due to personal illness and she filed a petition for time through her counsel. The prayer for adjournment was allowed subject to payment of cost of Rs. 600/- by the petitioner and the case was posted to 26.10.2005. On the said date an application was filed to recall the order dated 23.9.2005 imposing cost, a prayer for adjournment was made, but both the prayers were turned down. When the prayer for adjournment was turned down the counsel who had been engaged as Amicus curiae requested the Court to permit him to cross-examine P.W. 1. Said prayer having been rejected the present writ application has been filed.
6. On consideration of the submission of the learned Counsel for the parties, two questions arise for consideration;
(1) whether Section 13 of the Family Courts Act, 1984 puts an absolute bar for engagement of Advocates in a proceeding before the Family Court to conduct cases on behalf of the parties ?
(2) Whether an Amicus curiae can do all such acts as an advocate retained by a party in a judicial proceeding?
7. Section 13 of the Act is quoted below:
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.
A bare reading of the said provision prima facie appear to have put a bar for engagement of Advocates by parties in a proceeding before the Family Court and only when the Family Court considers it necessary in the interest of justice, it may seek assistance of a legal expert as Amicus curiae. In this connection, Rule 27 of the Family Court (Orissa) Rules, 1990 is also a relevant. Said provision is quoted below:
A party will be entitled to take legal advice at any stage of the proceeding either before the counsellor or before the Court. A party in indigent circumstance will be entitled to free legal aid and advice.
The Bombay High Court in the case of Leela Mahadeo Joshi v. Dr. Mahadeo Sitaram Joshi reported in AIR 1991 Bombay 105 interpreting Section 13 of the Family Courts Act and Rules of that State held as follows :
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 further 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 reasons 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 permission ought not to be turned down.
The same view was expressed later by the same High Court in the case of Smt. Pimple v. The Union of India and Ors. reported in : AIR1993Bom255 and the Court in paragraphs 17 and 18 of the judgment held as follows :
Mr. Agarwal, learned Counsel appearing for the Union of India urged that Section 13 does not prohibit the party from availing services of the lawyer Such permission can be granted on an application if made by a party and if the Court comes to the conclusion that it is necessary to do so. He, however, urged that there is no fundamental right to a citizen/litigant to appear through a lawyer save and except in case of Article 22(1) of the Constitution of India. In support of this submission, he relied upon decision of the Supreme Court in Paradip Port Trust v. Their Workmen : (1976)IILLJ409SC . While construing Section 36(4) of the Industrial Disputes Act, the Supreme Court held as under (at page 44):-
We have given our anxious consideration to the above submission. It is true that 'and' in a particular context and in view of the object and purpose of a particular legislation may be read as 'or' to give effect to the intent of the legislature. However, having regard to the history of the present legislation, recognition of law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that 'and' in Section 36(4) can be read as 'or'.This ratio, therefore, indicates that no party can claim as a matter of right, a right to be represented through lawyer. It is open to the legislature to put restrictions on such representation by legal practitioner, having regard to the aims and object of the Act. On an identical issue the Supreme Court in Lingappa Pochanna v. State of Maharashtra : [1985]2SCR224 , reiterated the same principle. It was a case under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1971. Section 90-A has laid down a restriction of appearance of Advocate on behalf of non-Tribal in proceedings under the said Act. Challenge was given under Article 19(1)(g) of the Constitution. While dealing with this challenge, the Supreme Court in paragraph 35 held as under (at page 404) :-
Now it is well settled that apart from the provisions of Article 22(1) of the Constitution, no litigant has a fundamental right to be represented by a lawyer in any Court. The only fundamental right recognized by the Constitution is that under Article 22(1) by which an accused who is arrested and detained in custody is entitled to consult and be defended by a legal practitioner of his choice. In all other matters, i.e. suits or other proceedings in which the accused is not arrested and detained on a criminal charge, the litigant has no fundamental right to be represented by a legal practitioner.The Supreme Court has recognized only fundamental right under Constitution to be represented by a lawyer is under Article 22(1) of the Constitution. In view of this authoritative pronouncement by the Supreme Court, we are not impressed by the challenge raised by the petitioners to Section 13.
Mr. Agarwal then drew our attention to the order dated 4.1.1998 of the Supreme Court in Writ Petition No. 1142 of 7987(Kanpur Bar Association v. Union of India). The issue before the Supreme Court was relating to Section 13 of the Act. While negating the right of a party to be represented by a lawyer, the Supreme Court has observed that no party has a right to claim to be represented by a legal practitioner. With this observation, the Supreme Court rejected the petition. In view of this settled position of law, contention raised on behalf of the petitioners by Mr. Gole that the petitioners have fundamental right under Articles 21, 19(1)(g) and 39-A of the Constitution of India to be represented by legal practitioner, must be rejected.
In the case of R. Durga Prasad v. Union of India and Anr. reported in AIR 1998 Andhra Pradesh 290, the Court held as follows:
Advocates are enrolled under the Advocates Act, 1961. The distinction between a Pleader and an Advocate has been done away with and there if only one class of legal practitioners i.e. 'Advocates'. Advocates are enrolled by the Bar Council after scrutinizing the eligibility thereto. Under Section 30 of Advocates Act, 1961, which is a central enactment, Advocates are entitled to practise as a right in all Courts and it is needless to mention 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 overriding 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 the Advocates Act. A decade back, the Supreme Court while noticing the said aspect of non-issue of notification of commencement of Section 30 of the Advocates Act, 1962, had given time of six months to consider as to whether circumstances existed to enforce the said legal provisions, 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 recognizes the necessity of taking the assistance of a legal practitioner, the bar of appearance of a 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.
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 legal practitioners 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 appoints them, then the management also is permitted. This is based on equality clause as workmen and management are unequals 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 practitioner, 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.
Order 32-A of C.P.C. was carved out for matters concerning the family and there is no similar provision analogous to Section 13 of Family Courts Act. We are unable 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, invalid 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 of legal 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 have the right to appoint a legal practitioner and that is how Section 13 of the Family Courts Act has to be understood and interpreted and we do so. But, if a party to the Us before the Family Courts 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.
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 practitioner/s, 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 context, 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.
Reliance was placed on a decision of this Court in the case of Manguli Dalei v. Smt. Malini Dalei reported in (1997) 12 OCR 196, wherein this Court held that representation by lawyer is not a matter of right, but permission to be represented by lawyer should be liberally granted where facts are complicated. The relevant portion of the judgment is quoted below:
In the present revision, the learned advocate appearing for the husband-petitioner has argued that since the present petitioner was not represented through a lawyer, the petitioner could not take effective steps for proving documents marked 'X' and 'X-V as the petitioner was not aware about the intricacies of law relating to proof of a document. Section 14 of the Act has liberalized the power of a Family Court in the matter of reception of evidence and in a given circumstance a Family Court may receive as evidence any report, statement, document, information which would facilitate the Family Court as effectively decide the dispute, even though such report, et certera may not be strictly admissible or relevant under the Indian Evidence Act, 1972. In other words, a Family Court need not be inordinately technical or strict regarding relevancy or admissibility of a document. Be that as it may, in the present case, the petitioner had failed to prove the execution of the document and had not laid the foundation for receiving secondary evidence, possibly because the petitioner was not represented through a lawyer in view of the provisions contained in Section 13 of the Act. Inasmuch as it is ordinarily understood that parties are not allowed to be represented through lawyers before the Family Court. In view of Section 13 of the Act, a party cannot be represented by a lawyer as of right in a suit or proceeding before the Family Court, but that does not mean, in no circumstance a litigant in the Family Court is to be allowed to be represented through a lawyer. Though as of right no litigant is to be represented by a legal practitioner in the Family Court, if the litigant desires to be represented by a legal practitioner, ordinarily the same should be permitted by the Family Court especially in complicated cases affecting the rights and liabilities of the parties before the Family Court. Apart from the provisions of Rules 27 and 30 of the Family Courts (Orissa) Rules, 1990, a Family Court should liberally grant permission to litigants to engage lawyers of their own choice depending upon facts and circumstances of a given case. If the facts of a particular case appear to be complicated and the parties so desire, it would be better on the part of the Family Court to permit a party to engage a lawyer so that all the relevant materials be brought on record. If a matter can be mutually settled through counselling and process of reconciliation, the question of engaging a lawyer may not arise, but when cases cannot be decided on the basis of reconciliation or amicable settlement, it may be desirable to permit an applicant to engage a lawyer. In this connection, it must be kept in mind that the branch of law relating to matrimonial disputes though may appear to be simple on the face, of it, in fact, quite complicated and it is always advisable to get the benefit of proper legal advice. The aforesaid view expressed by me get support from the Division Bench decision of the Bombay High Court reported in AIR 1991 Bom. 105, Leela Mahadeo Joshi v. Dr. Mahdevo Sitaram Joshi.
8. As is evident from the decisions referred to above the Courts while interpreting Section 13 of the Act and the relevant rules of the respective States, observed that in matrimonial proceedings, issues such as, custody of children, visiting rights, maintenance, alimony, apportionment of property etc. and in respect of such other issues, that may not be possible on the part of the parties to protect their own interest and they may not be in a position to visualize each problems or requirements, the parties may give up their rights or fail to safeguard them. If it so happens, the consequence would be either undue hardship or future litigation or both which deserve to be avoided. Though Section 13 of the Act puts a bar for engagement of Advocates by the parties in a Family Court, as a matter of right, Rule 27 of the Rules permit a party to take legal advice at any stage of the proceeding either at the time of coryciliation or before the Court. If the Section 13 of the Act and the Rule 27 of the Rules are read together, it will be clear that though the party to a proceeding before a Family Court as a matter of right cannot be represented by a legal practitioner, he/she shall be entitled to take legal advice even before the Court. The reasons assigned in the decision referred to above and the fact that under Rule 27 of the Rules a party to the proceeding before a Family Court is entailed to take legal advice even before Court, it appears that Section 13 of the Act does not impose an absolute bar for engagement of a legal practitioner by a party before a Family Court. However, while applying to the Court for permission to engage a legal practitioner the party seeking such relief may assign reasons as to why assistance of a legal practitioner is required and only if the Court is satisfied that for the reasons stated in the petition legal assistance is required, it may allow a party to take legal advice while the matter is pending before the Court.
9. The second question raised before this Court is the role of Amicus curiae in a proceeding before the Family Court appointed under proviso to Section 13 of the Act. Shri Mohanty, learned Counsel appearing for the opposite party and Sri Jagannath Patnaik, Senior Advocate who had been requested to assist the Court in this regard relied upon a decision of the Rajasthan High Court in the case of Sarla Sharma v. State of Rajasthan and Ors. reported in/(2002) DMC 409 (DB) as well as . Referring to the Family Court Rules of the State the Division Bench of the Rajasthan High Court in para-8 of the judgment has laid down the basic distinction between the legal practitioner appearing as an Amicus curiae and a lawyer/Advocate appearing for the individual party. Said paragraph is quoted below.
There is a basic distinction between, a legal practitioner appearing as an amicus curiae i.e. friend of the Court and a Lawyer/Advocate appearing for individual party. The Family Courts are established to settle family disputes expeditiously without there being strict rigour or procedural law and Evidence Act keeping an eye on conciliatory approach to achieve socially desirable result. It is, therefore, Legislatures have thought it proper to restrict appearance of Lawyers/Advocates in the proceedings, who by nature of their training, do insist upon compliance of the procedural law and application of strict rules of evidence. Having considered the aims and objects and statutory provisions of the Family Courts Act and even giving liberal construction, appearance permissible of legal expert as an amicus curiae under the proviso to Section 13 of the Act of 1984 cannot be read to include appearance by Lawyer or Advocate. Therefore, apparently, the Rule 22 of the Rules of 1994, permitting Lawyer/Advocate's appearance with the permission of the Court then increases the permissible limit provided under Statute, namely, proviso to Section 13 of the Act of 1984.
From the discussions made in the judgment it appears that a legal practitioner appearing as an amicus curiae is a friend of the Court and the amicus curiae is not appointed as a private counsel by the parties to action or to represent them in a partisan manner and for their personal use and benefit and that they does not have a function of taking over conduct of a case for parties to litigation. Although the Court may hear the communications of an amicus curiae, it is within the discretion of the Court whether it will need the advice given and the amicus curiae has no right to complain if the Court refuses to accept his suggestions. The Law Lexicon edited by Justice Y.V. Chandrachud describes 'amicus curiae' as a friend of the Court. It says that an amicus curiae is one to volunteer or on invitation of the Court instructs the Court on a matter of law concerning which the latter is doubtful or mistaken, or informs him on facts, a knowledge of which is necessary for a proper disposition of the case. Amicus curiae is one not being retained in a case volunteers to express his views or make suggestions for information of the Court. Chambers 21st Centuary Dictionary describes 'amicus curiae' as a person not directly involved in a cause but who gives advice about it and otherwise means, friend of the Court.
In view of what has been discussed above, there cannot be any doubt in mind that an amicus curiae appointed by the Judge, Family Court, under the proviso to Section 13 of the Act is only a friend of the Court and is required to assist the Court in matters of fact and law as and when required by the Court and cannot act as a lawyer/advocate engaged by a party to defend cases. In other words, an amicus curiae cannot do all such acts as usually done by an Advocate retained by a party in a judicial proceeding and his role is limited to rendering assistance to the Court in matters of facts and law whenever required by the Court.
10. In view of the above, I do not find any illegality in the order of the learned Judge, Family Court in refusing the prayer of the Amicus curiae appointed by the Court to cross-examine P.W. 1.
In view of the observations made above, it will be open for the parties to approach the Court with an appropriate application seeking permission for engagement of an advocate and if such an application is filed by either of the parties or both the parties, the Court may consider the same and pass necessary orders by examining the facts and law involved in the case in the light of the observations made in this judgment.
11. With the above observations and directions, the writ application is disposed of.