Jharkhand High Court
Krishna Murari vs State Of Jharkhand And Ors. on 4 September, 2002
Equivalent citations: [2003(2)JCR44(JHR)], AIR 2004 (NOC) 139 (JHA), 2004 AIR - JHAR. H. C. R. 194, (2003) 2 JLJR 445, (2003) 2 JCR 44 (JHA)
Author: Hari Shankar Prasad
Bench: Hari Shankar Prasad
JUDGMENT V.K. Gupta, C.J.
1. Through the medium of this petition by way of Public Interest Litigation, filed under Articles 226 of the Constitution of India, the petitioner, who is a practicing Advocate of this Court, as also in the District Courts, has prayed for issuance of a writ in the nature of mandamus, commanding respondents 3 to 6, who are the Principal Judges/Presiding Officers of Family Courts constituted under the Family Courts Act, 1984, at Ranchi, Jamshedpur, Dhanbad and Hazaribagh, to allow the parties to litigation before these Courts to be represented by counsel of their choice.
2. The point involved in this petition is very simple and uncomplicated, Family Courts Act, 1984, was enacted to provide for the establishment of Family Courts by making it obligatory on the part of the State Governments to set up a Family Court in every city or town with a population of more than one Million people. The object of the Act was to ensure speedy settlement of family disputes between the contesting parties relating to marriages and other matrimonial affairs. The ostensible purpose of the enactment was to resolve the disputes in the shortest possible time.
3. The Family Courts constituted under Section 3 of the Act were conferred special and exclusive jurisdictions to deal with almost all the matters relating to matrimonial disputes including disputes concerning the property of the spouses, the legitimacy and the guardianship of the children and the custody of the minor and also grant of maintenance under Section 125 of the Code of Criminal Procedure.
4. Section 9 of the Act casts a duty upon the Family Courts to make an earnest endeavor in every suit or proceeding pending before such Courts in the first instance with a view to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and if at any stage of such suits or proceedings, it would appear to a Family Court that there was a reasonable possibility of settlement being arrived at between the parties, it might adjourn the proceedings for a reasonable period to enable the parties to actually effect and arrive at such a settlement. For ready reference, Section 9 of the Family Courts Act 1984, is reproduced hereinbelow which reads thus :--
"9. Duty of Family Court to make effort for settlement--(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, following such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement;
(3) The power conferred by Sub-section (2) shall be in addition to, and not in derogation of, any, other power of the Family Court to adjourn the proceedings.
" 5. In this case we are concerned with Section 13 of the Act which lays down that no party to a suit or proceeding before a Family Court shall be entitled as of right to be represented by legal practitioners. Section 13 reads thus :--
"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 curiac."
5. The grievance of the petitioner is that the Presiding officers of the Family Courts in the State of Jharkhand are, as a matter of Rule, refusing permission to the parties to be represented by the counsel of their choice and this refusal is resulting in grave miscarriage of justice because, according to the petitioner in various situations and contingencies, the parties themselves are not in a position to represent their points of view or canvass their submissions before the Courts and that in the absence of the aid and assistance of qualified legal practitioners, the contentions of the parties go either unnoticed or un-canvassed, resulting in grave prejudice being caused to the parties.
6. When we examined the contentions of the learned counsel for the petitioner in the light of the provisions contained in Section 13 (supra), we found that the only interpretation that can be given to Section 13 is that even though a party to a suit or a proceeding before a Family Court has no absolute, unfettered or guaranteed right to engage a counsel or be represented by a legal practitioner, yet a discretion vests in the Family Court to permit such a party to engage a counsel or to be represented by a legal practitioner of his or her choice. Such interpretation becomes manifestly clear when the expression "as of right" as occurring in Section 13 stares at us. If the intention of the Legislature would have been to debar the appearance of the Advocates completely and absolutely from in or participating at proceedings of the Family Courts, the legislature would not have used the expression "as of right". The legislature, perhaps, intentionally couched the language of Section 13 by inserting the expression "as of right" to convey its intention that engagement and appearance of Advocates in the Family Courts for and on behalf of the parties was not something which was completely forbidden or totally prohibited, but that in a given situation, the Court may by exercising its discretion permit a party to engage or be represented by a lawyer of his or her choice. We must State here that the proviso to Section 13 is not relevant for the purposes of adjudication of this controversy because it only deals with the issue of the Court seeking assistance of a Jegal expert as an amicus curiac. The Court itself seeking assistance of someone as an amicus curiac has nothing to do with the right of the parties to be represented by lawyer of their choice.
7. It can often happen that during the course of trial, proceedings or otherwise, important and complicated questions may arise for consideration by the Court. Actually in some matters, the facts themselves might be so complicated as to ask for forensic examination or critical analysis which the parties being lay persons, perhaps, would not be in a position to put across, thus resulting in mis-carriage of justice. In a large number of cases, evidence may have to be led by the parties which means that the witnesses have to be examined in-chief, cross-examined and re-examined. Actually the experience has shown that trained legal practitioners well versed with the complexities of law and fully conversant with the procedures of the Court save the precious and valuable time of the Court and render proper assistance; whereas the parties personally being alien to the Court-craft, intricacies of law or the parameters of legal system totally fail in putting across their points of view and if they even partially succeed, they take so long a time in doing so that sometimes the Presiding Officers of the Court feel perplexed in understanding the situation in all its perspectives.
8. We are not unconscious of the legislative intent behind enacting Section 13. Legislature clearly intended that before the Family Courts unlike other law Courts, ordinarily constituted, lawyers as a routine, as a matter of practice, would not appear. Such a provision is more akin to the stringent requirements of the provisions contained in the Industrial Disputes Act, 1947 and such like other Acts. Perhaps, the Legislature thought while enacting Section 13 that the participation of the lawyers in usual course as a routine might obstruct the speedy disposal of case, but the experience has shown that more often than not, the lawyers for the above quoted reasons actually help in the faster disposal of cases.
9. Sections 21, 22 and 23 of the Act enjoin upon the High Court, the Central Government and the State Government to make rules for carrying out the purposes of the Act. We are told that rules have not been framed so far either by the Jharkhand High Court or by the Govt. of Jharkhand. This also in a way has created some confusion with regard to the true interpretation of Section 13 of the Act. We hope and trust that rules under Sections 21 and 23 shall be framed and notified in the shortest possible time. We request the learned Advocate General to convey this direction to the Registrar General, Jharkhand High Court and the Chief Secretary, Government of Jharkhand.
10. Coming back to the resolution of the dispute relating to the interpretation of Section 13 and the persistent refusal on the part of the Family Courts in the State to disallow the engagement of lawyers as a matter of course, based on the aforesaid reasoning, we find that it shall be more desirable to take a materialistic and pragmatic approach to the entire issue so that in the true spirit of the legislative intent prescribed under Section 13 of the Act, it is properly construed by all the Family Courts that there is no complete embargo as such no total prohibition in the engagement of the lawyers and that in a given situation, in a particular case, the discretion vests with the presiding officer to permit the parties to be represented by the counsel of their choice. How this discretion has to be exercised in a given case, of course, would depend on the fact situation of every such case. There can be situations where the Court finds that the parties, or one of them is illiterate or so ignorant of his/her rights and claims and he/she is not in a position, because of illiteracy or ignorance, to present his/her case in the Court. Actually, in our State we so commonly come across numerous cases of illiterate/ignorant litigants not knowing even the basics of their litigation, what to speak of the con-Lours thereof. It is these parties, actually, who may need the help of lawyers to present their cases in the Court. We would, therefore, like to emphasize that if a party does apply to a Court with an application duly supported by material facts and particulars (and it is based on sound reasons) for engagement of a counsel on his/her behalf, the Court should consider such an application on the basis of brief and short reasons to be recorded in writing, allow the party to be represented by a lawyer. Actually, the reasons even though may be recorded briefly and shortly, should of course indicate the exercise of the Court's discretion for allowing the party to be represented through a lawyer. However, if the Court finds that in a particular case, only one party has applied for being represented by a lawyer, it must, as a matter of obligation oh its part, enquire from the other party also as to whether it would like to be represented by a lawyer of his/her choice. The Court by allowing one party to be represented by a lawyer cannot put the other party to a position of disadvantage by not being represented by a lawyer of his/her choice. If, therefore, in a given situation, only one party comes forward with a plea of being represented by lawyer and if the Court in the exercise of its discretion decides to permit such a party to be so represented and allows his or her plea and if it finds that other party is either not coming forth with such a plea or that admittedly is not in a position, for any reason-financial or otherwise, to engage a lawyer of his/her choice, it would be mandatory requirement that in such a situation, the Court should provide to such a party the assistance of a counsel, either by appointing an amicus curiac by itself or by selecting a lawyer from the panel available with the District Legal Aid Authority or from out of the group of lawyers constituting the Legal Aid Clinic in that District, but an endeavour must be made to ensure that the provision of such a facility to such an unrepresented party is not a mere formality, nor an empty ritual. It would always be the bounden duty of the Court in every such situation to ensure that any such helpless party is not bogged down, prevented, brow-beaten, or cowed down by the presence of a mighty lawyer representing the opposite party. That situation would run counter to the basic spirit of the legislative intent behind Section 13 and rather than advancing the cause of justice, it would not only frustrate but retard the very basic purpose for which Section 13 was enacted. Such a situation undoubtedly would result in grave miscarriage of justice.
11. The mandate of Section 9 is very clear. It enjoins upon a Court a duty to make an earnest endeavour to bring about a settlement between the parties. Uptill the stage of coinpletion of that process undoubtedly the lawyers have no role to play. Their services are not required. Because till that stage, the adversarial litigation between the parties does not start in right earnest. That is a stage where the Presiding Officer by using his good offices tries to bring about a conciliation, a settlement between the parties, The spirit behind Section 9 is to try and find out if the parties can resolve their differences and through process of amicable settlement bring about an end to the litigation. Successful culmination of the endeavour as initiated in terms of Section 9 of the Act, for every Presiding Officer of the Court, would be a moment of happiness and a moment of glory for him. We, therefore, have no hesitation in commanding upon all the Presiding Officers of the Family Courts in Jharkhand State the imperative need to earnestly and sincerely make all-out efforts and also make an earnest endeavour to see if the parties can bring about a settlement between themselves. Undoubtedly, uptill that stage, there is no question of allowing the lawyers to render any assistance to the parties, be represented or be allowed to participate in the proceedings. Only if the efforts, the endeavour under Section 9 ultimately fails and the Court records a finding that it has so failed, would the adversarial litigation start and it is at that stage and thereafter that the parties, or anyone of them if it so desires, may make an application as indicated hereinabove, for being represented by a lawyer of his/her choice; not before that stage.
12. It goes without saying that the power to grant permission also includes the power to revoke the permission. If at any stage of the proceedings, the Court finds that the presence of lawyers is not helping the parties or the cause of justice or that because of the participation of the lawyers, the progress of the suit or the proceedings is being obstructed or hampered, it may, for reasons to be recorded in writing, revoke the permission granted.
13. We hope and trust that everyone concerned properly appreciates the con tours of this judgment.
14.Copies of this judgment shall be sent to all Family Courts in the State for their information and necessary compliance.
15. The petition stands disposed of. No orders as to costs.