Madras High Court
S. Venkataraman vs L. Vijayasaratha on 16 July, 1996
Equivalent citations: I(1997)DMC503
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT Abdul Hadi, J.
1. The husband has preferred this civil miscellaneous appeal against the dismissal of his O.P. No. 876 of 1991 on the file of the Additional' Principal Family Court, Madras by order dated 31.7.1992. The said O.P. was filed for dissolution of marriage that took place on 21.8.1987 between him and the respondent-wife, on the ground of cruelty and desertion under Section 13(1)(ia) and (ib) respectively of the Hindu Marriage Act, hereinafter referred to as 'the Act'.
2. Admittedly, both the spouses were living together till August, 1989, and thereafter they got separated. The original petition was filed on or about 23.1.1991.
3. The nature of alleged cruelty pleaded by the petitioner in the petition is briefly as follows: The respondent refused to consummate the marriage on the nuptials day and on the following days, which caused great anxiety and mental strain to the petitioner. Even on the honey-moon days, there was no normal sexual life between the parties and there was no "willing and acceptable consummation of marriage on any occasion" and on every occasion there was only reluctance and attempt to avoid the fruit of marriage by not having issues. The respondent had never shown any improvement and it affected the health of the petitioner. Even on few occasions with great pursuation the petitioner had sexual intercourse she insisted that there should not be any "result" of such intercourse.
3. As against the above allegations, the counter statement of the wife stated as follows:
The allegation that the respondent refused to consummate the marriage on the nuptials night is not correct. The petitioner's mother advised both the petitioner and the respondent not to consummate the marriage on the nuptials night and warned them of the serious consequences. The petitioner's mother said that since the respondent was forced to take some tablets for postponing her menstruation, she must abstain from intercourse for a few days as otherwise, in the event of conception, the child may suffer some severe physical handicap. It was this fear infused by the petitioner's mother, that restrained both the petitioner and the respondent from having the normal sexual intercourse on the wedding night itself. There was no reluctance or non-co-operation on the part of the respondent to consummate the marriage and in fact during the honey-moon the marriage was happily consummated as by then the respondent had the menstruation over. The petitioner did not suffer any disappointment. He was quite happy and cheerful during the honey-moon trip. On all relevant occasions the spouses enjoyed happiness and it is absolutely false to state that the respondent was not amenable to normal sexual life.
4. On this aspect, the Court below has found that even on the face of evidence of P.W.I, the husband, in chief examination, the ground of cruelty has not been made out.
5. Learned Counsel for the petitioner, in his argument, mainly stressed the aspect of cruelty on the ground that the respondent refused to allow the petitioner to have sexual intercourse. But, it must be pointed out even at the outset that as P.W.I, the husband did not at all speak about any such cruelty. In fact there was no whisper about the abovesaid alleged refusal of the wife to allow the husband to have sexual intercourse with her. When we pointed out this aspect in the evidence of P.W.I, learned Counsel for the petitioner sought to submit that the husband was not given the opportunity to examine himself further and speak about the abovesaid cruelty. But, we are unable to accept this contention. Not even such express ground has been taken in the memorandum of grounds. In this regard all that is stated in the grounds is that the learned Judge failed to record evidence in the manner the appellant deposed inspite of his protest throughout. If really fuller opportunity was not given for P.W.I to depose, he could have filed a petition or memo seeking such further or fuller opportunity. Admittedly no such attempt was made. So, we cannot accept the abovesaid contention of learned Counsel for the petitioner.
6. That apart, even in Ex.A.4, the letter written by the husband to his father-in-law on 1.8.1990 also, there is no reference to any cruelty by the wife at all. No doubt, in another earlier letter Ex.A.3 dated 12.9.1988 written by the husband to the wife, there is reference to the abovesaid cruelty. But that document was not put to R.W.I, the wife when she was in the witness box. No doubt, there was no reply by the wife, to Ex.A.3. But, it is not clear whether Ex.A.3, which was sent by ordinary post, was received by her. The husband also, as P.W.I, does not specifically speak about Ex.A.3, when he deposed as P.W.I. 6A. However, in this regard, learned Counsel for the petitioner submits that the learned Trial Judge simply brushed aside the entire documentary evidence on the side of the husband, which are in the form of Exs.A.l to A.19 without any discussion regarding them. But this submission is not quite correct. No doubt, in the impugned order, learned Judge, after referring or mentioning about these documents simply says thus :
"Though the petitioner filed 19 documents, which were marked as Al to A19 in support of his version, a reading of these documents will impress upon any person that these documents will not in any way improve the case of the petitioner. On the other hand, some of the documents will clearly indicate that the present version of the respondent is true and acceptable. It is not necessary to go into the details of the documents."
Of course, this cursory way of dealing with the matter is not proper. Learned Judge should have taken into consideration the relevant contents of those documents and after proper discussion regarding them, he could have come to any conclusion hi wanted to arrive at.
6B. However, learned Counsel for the petitioner filed a typed set of Exs.A.l to A.19 and took us through many of them. But, after going through them we are also convinced that the contents of those documents do not really improve the case of the petitioner. Of those documents, we have already referred to Ex.A-3. We must also point out that even in Ex.A-3, actually speaking there was no averment that the wife completely refused to have intercourse with the husband, but, what is stated is as follows :
"Even during the honeymoon you refused to give me sexual satisfaction. In fact, you abhored the very idea of sex. This continued even after our return from Ooty where we went for honeymoon."
(Italics supplied) Anyway, when R.W.1, the wife was in the witness box, the husband should have put Ex.A.3 to her and elicited her answer regarding the allegations made therein, but that has not been done.
7. No doubt in this regard, and generally, learned Counsel for the petitioner submits that in view of the fact that the parties before the Family Court could not have had legal assistance through a Counsel, such imperfect or defective cross-examination is there. But, though there may be some little justification for such a comment, it must be noted that there is no complete or total bar for the parties before the Family Court to have assistance through a Counsel. All that is stated in Section 13 of the Family Courts Act is as follows :
"Notwithstanding anything contained in any law, no party to 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."
(Italics supplied) So, in other words, though in other normal Civil Courts, a legal Practitioner can, as of right, appear on behalf of his client, in the Family Court, such a right cannot be claimed as such, but, it is left to the discretion of the Family Court to allow any Counsel to appear on behalf of the client and give necessary legal assistance, generally in the interest of justice and particularly, taking into consideration the nature of the case and the conditions under which the parties are placed. So, if any of the parties before the Family Court files a memo or petition before the Family Court, or even when orally express desire seeking permission of the Court for him or her to engage a Counsel and have legal assistance, the Family Court, exercising its judicial discretion, may allow the parties to have such legal assistance, as required, in the interest of justice and after taking into consideration the nature of the case and the conditions under which the parties are placed. When so allowed, the Counsel of a party could file the Vakalath and do all that is necessary for the client in conducting the case. It is said that at times a Counsel is allowed to give some (not all) assistance in conducting the case even without filing a Vakalath. But, we must state that, allowing Counsel to give any assistance in conducting the case without himself filing Vakalath, is not proper.
8. In this regard, reference to the following observations of a Division Bench of the Bombay High Court in Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi, , would be quite appropriate :
"A perusal of Section 13 of the Act indicates that a party to a proceeding before the Family Court shall not be entitled as a right to be represented by a legal Practitioner. It is necessary to clarify that Section 13 does not prescribe a total bar to representation by a legal Practitioner which bar itself be unconstitutional. The intentment 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 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 starta 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 procedure 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, 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".
9. We are also in agreement with the above referred to observations of the Bombay High Court. The said Court also adds thus :
"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 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 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."
10. We presume that the abovesaid Family Courts (Court) Rules, 1988 are that of Maharashtra State framed under Section 23 of the Act, or that framed by the Bombay High Court under Section 21 of the Act. Anyway the abovesaid Rule 37 is a healthy rule and we suggest that a similar rule be also framed by this Court or by the State of Tamil Nadu. However, even without such a rule framed and made applicable in this State, the course suggested by us in paragraph 7 above could be adopted by the Family Court and the parties before it, taking into account what is contained in Section 13 of the Act.
11. In the present case, it does not appear that any petition or memo was filed - or any desire orally expressed - by any of the parties, seeking permission of the Family Court below to engage a Counsel to assist him or her in conducting the case. As such, there cannot be any real justification for the abovesaid submissions by learned Counsel for the petitioner that the petitioner was not given the opportunity to examine himself further or that in view of the bar in having legal assistance, there is imperfectness or defect in the oral evidence elicited.
12. It is also argued that to another letter Ex.A.5 by the husband to the wife dated 14.2.1991 also (wherein also there was reference to the abovesaid refusal of the wife to allow the husband to have sexual intercourse), there was no reply by the wife, Ex.A.5 is a letter sent by registered post and Ex.A.6, the postal acknowledgement therein, shows that she has received Ex.A.5 letter. But, first of all, even Ex.A.5 was not put to R.W.1, when she was in the witness box. That apart, Ex.A.5 itself says thus :
"After much pursuation, ultimately you had agreed to have intercourse but insisted that you should not have a child."
Further we may also refer the following plea in paragraph 14 of the petition :-
"A letter was sent by the petitioner narrating all the incidents on 14.2.1991, there was no reply for the letter or denying the allegations but sent a short note on 25.2.1991 that she would meet the petitioner personally and the petitioner sent a reply on 7.3.1991 explaining her attitude and conducts earlier and how her father has behaved on earlier occasions."
The above referred to letter sent on 14.2.1991 is the above mentioned Ex.A.5 letter. So, in the light of the abovesaid plea in paragraph 14, it is clear that there was actually a reply to Ex.A.5 letter, though it is called in the said passage as a 'short note' of 25.2.1991. Here, it is significant to point out that the said reply, which is alleged to be a short note, has not been exhibited by the appellant-husband and no explanation has been given by him, either in the petition or as P.W.I as to why he has not produced before Court the abovesaid reply by the wife to Ex.A.5.
13. That apart, on going through the deposition of R.W.1, we also find that there was not even a suggestion to the wife that she. was expressing such refusal, and not allowing sexual intercourse.
14. Further, in Ex.A.9 dated 18.6.1991, the wife's letter to husband, she stated as follows :
"During our honey-moon at Ooty, when the marriage was consummated, you had expressed your satisfaction and happiness. Thereafter, we have been living a normal... life. Wherever both of us went to the temple, we have also been jointly praying for a child. You are also aware that we have made special prayers at Cheranmadevi before your family deity and taken a vow to offer a "Jadari" and I have also been saving money for the same. It is very painful as to how were able to forget all these things and make utterly false allegations against me. Your conduct in celebrating the completion of one month of our wedding would also vouch for our happy and cordial relationship. I may also recall to your memory of our visiting Dr. A. Joseph, for consultation. In the light of all the above facts, how could you now accuse me that I am not interested to have a child. I also would like to remind you that when you suggested that we may go to Mayuram to my parents house during our honey-moon trip even against your mother's wishes in a clandestine manner, I had refused to do so because I did not want any misunderstanding between you and your mother."
As against these specific and express allegations, there was no specific denial by the husband in his subsequent reply Ex.A.ll dated 18.7.1991, except almost repeating the same old allegation earlier made, in the following manner :
"During honeymoon you even refused to consummate the marriage by saying that the bed in the hotel is not a new one and has been used up by so many people."
15. Now, we may also point out the following passage in Ex.A.10 dated 15.7.1991, another letter by the wife to the husband :
"I am wishing you many happy returns on your birthday (17.7.91) and pray for our early re-union. Hope you are keeping well .....
I have no other alternative, when you completely refuse to hear me either in person or over the phone. You refuse to permit me to stay in the house and your mother tells me, as the premises is taken on lease by your younger brother, she is not in a position to allow me to stay in the house.....
My personal efforts/attempts and my parents efforts to bring about reconciliation and our re-union have all been in vain, mainly because of your attitude/conduct and your peoples attitude and conduct...
I have amply apologised and my parents have also apologised on my behalf and requested you to take me. Your adament attitude is un" understandable. I have not done anything to deserve this hostile attitude from you. Even if I had done something to hurt you unawares, I am tendering my excuses for the same."
16. In the light of these features, we see no good reason to differ from the conclusion reached by the Court below on the aspect of cruelty under Section 13(1)(ia) of the Act.
17. Even in regard to the other ground, taken by the husband, viz; desertion under Section 13(1)(ib) of the Act, we must point out that learned Counsel for the appellant could not seriously argue anything substantial to convince us for coming to any conclusion different from what was reached by the Court below. Further, in the light of the passage extracted from Ex.A.10, we are unable to come to a conclusion that there was any animus deserendi on the part of the wife and that too for a continuous period of two years immediately preceding the date of petition, as required under Section 13(1)(ib) of the Act Further, even after analysing the entire evidence in the case, we are unable to differ from the Court below, even on the aspect of desertion.
18. In the result, the civil miscellaneous appeal is dismissed. However, in the circumstances of the case, there will be no order as to costs.