JUDGMENT
Vasanti A. Naik, J.
1. Rule. Rule made returnable forthwith. The matter is finally heard at the stage of admission as the issue involved in this petition is a short one.
2. Few facts giving rise to the petition are stated thus:
The petitioner was married with the respondent No. 1 on 11-2-2000 and a female child by name Malvika was born from the wedlock on 28-1-2002. The parties started living separately some time in the month of June, 2005. The respondent No. 1 had filed a divorce petition before the Family Court at Nagpur which was assigned to the 2nd Family Court. It appears that the respondent No. 1 was permitted to engage a counsel to prosecute the petition. An application for custody of the minor child Malvika was also made by the respondent No. 1. On 15-10-2007, the petitioner filed a Written Statement as also a reply to the application for grant of custody of the child. The petitioner filed an application for grant of maintenance. On 15-10-2007, the respondent No. 1/husband, moved an application for grant of custody of child during the period of Dusshera and Padwa of Diwali. On the very same day, the petitioner was asked to give her say and the petitioner gave her say to the Civil Application. The matter was thereafter listed before the Court on 23-10-2007 for hearing on the application for grant of custody.
3. It is the case of the petitioner that, when the petitioner appeared before the Court on 23-10-2007, the counsel for the respondent No. 1-husband argued the application for grant of custody of the child for Padwa of Diwali. The wife was not permitted to engage a counsel by that time. Certain allegations are levelled against the Presiding Officer of the 2nd Family Court, Nagpur in the petition. The verbal dual between the petitioner and the counsel for the petitioner on one hand and the Presiding Officer on the other hand is also narrated in the Writ Petition.
4. It is necessary to mention at this stage that an application for grant of permission to engage a counsel was filed by the petitioner as early as on 2-7-2007 and the Court had on that very day passed the following order.
Put up for orders.
Though the afore-said order was passed on 2-7-2007, it appeal’s that the 2nd Family Court, Nagpur did not decide the application for permission to engage a counsel till the impugned order was passed on 23-10-2007 rejecting the application filed by the petitioner for engagement of counsel. The order dt. 23-10-2007 rejecting the application for grant of permission to engage a Counsel is challenged in the instant petition.
5. I have heard the counsel for the respective parties at length. I have also perused the application Exh.9 and the other documents and orders annexed to the petition. It appears that the respondent No. 1 had filed an application for grant of permission to have interim custody of the child on Dusshera and Padwa of Diwali on 15-10-2007 through his counsel. The solemn affirmation of the respondent No. 1 to the application for grant of permission also records that the contents of the para Nos. 1 to 6 of the application are true and correct and the pleadings regarding law are incorporated as per the advice of the Lawyer. It is, thus, clear that the respondent-husband was permitted to engage a counsel in the matter for advancing his case. As early as on 2-7-2007, the petitioner had also filed an application for permission to engage a counsel to plead her case. Though the application was filed on 2-7-2007 and the Court had also endorsed that the matter be put up for orders, no orders were passed on the said application and the matter proceeded before the 2nd Family Court, Nagpur from time to time and ultimately, the petitioner/wife had to file her Written Statement and also defend the application for grant of permission filed by the respondent No. 1-husband. In the backdrop of the aforesaid facts, it is the case of the petitioner that it was necessary for the 2nd Family Court, Nagpur to have afforded an opportunity to the petitioner to engage a counsel and to defend the case specially when the Court had permitted the respondent No. 1-husband to avail the services of a lawyer to prosecute the case on his behalf.
6. It would not be desirable for this Court to consider the allegations made by the petitioner in the instant case, so far as they pertain to the biased attitude of the Presiding Officer, 2nd Family Court, Nagpur. It was, however, necessary for the 2nd Family Court, Nagpur to have permitted the petitioner to present her case through a lawyer, specially when she was required to defend the application for grant of interim custody filed by the respondent No. 1-husband, who was represented through a lawyer. It appears that, in the afore-said background, the petitioner wanted her lawyer to oppose the prayer made in the application for grant of interim custody and the counsel for the petitioner tried to address the Court on the said application. The Observations made by the 2nd Family Court, Nagpur in the impugned order below Exh.9 that no counsel can appear before the Family Court as of right and permission of the Court to represent the client in the case is to be sought are no doubt true, but they do not apply to the facts of this case as the petitioner had filed an application for permission to engage a counsel as early as on 2-7-2007 and though the Court had proposed to pass orders on the same, no orders were passed on the same in spite of the fact that the matter was proceeded on a number of days in absence of permission to the petitioner to engage a counsel. It is true that under Section 13 of the Family Courts Act, no lawyer can appear before the Family Court as of right and the Family Court is also invested with ample power under Section 37 (sic) to revoke the permission granted to an Advocate to appear on behalf of a party. Howsoever true that may be, in the instant case, since the respondent No. 1 was permitted to engage a counsel to prosecute the petition for grant of divorce, as also the application for grant of interim custody, propriety and fairness demanded that the petitioner/wife was also granted permission to engage a counsel to defend the case, specially when she had stated in the application, Exh. 9 that she was not aware of the procedure of Courts and law. Moreover, Section 37(sic) could not have been invoked in the instant case as the petitioner was never permitted to engage a counsel to defend her case and hence the question of revocation of permission did not arise. It cannot be imagined that one of the parties, specially of a male gender is permitted to prosecute the case through a counsel and the wife is not permitted to engage the services of a counsel to defend the case. It is also not clear from the record as to why the 2nd Family Court, Nagpur did not decide the application for grant of permission to engage a counsel for a period of more than three months and the petitioner/wife was required, in the meantime, to file a Written Statement and a reply to the application filed by the respondent No. 1-husband. The order passed on 23-10-2007, below Exh. 9, cannot be sustained and therefore, the same is liable to be quashed and set aside.
7. In view of the allegations made in the petition, the petitioner has sought the transfer of Hindu Marriage Petition No. A-283/2007 from the 2nd Family Court at Nagpur to any other competent Court having similar jurisdiction. It would not be proper for this Court to transfer the said Hindu Marriage Petition from the 2nd Family Court, Nagpur to any other competent Court having similar jurisdiction while exercising the powers under Article 227 of the Constitution of India as the petitioner has not filed any transfer application before the principal family Court as yet. However, in the facts and circumstances of the present case, it is highly desirable that the petitioner files an application before the Principal Judge, Family Court, Nagpur for transferring the matter from the 2nd Family Court at Nagpur to any other competent Court. For the reasons stated here-in-above, the Writ Petition is partly allowed. The order passed by the 2nd Family Court, Nagpur on 23-10-2007 below Exh.9 is hereby quashed and set aside. In the facts and circumstances of the case, since the respondent No. 1 is permitted to appear and represent his case through a counsel, the application filed by the petitioner, at Exhibit-9, for grant of permission to engage a counsel is hereby allowed.
8. Rule is made absolute in the aforesaid terms. In the facts of the case, no orders as to costs.