ORDER
B.J. Shethna, J.
1. The petitioner Smt. Kailash Bhansali is wife of respondent Shri Surendra Kumar. She has challenged in this petition the impugned order dated 23-3-2000 (Annex.5) passed by the learned Judge of Family Court. Udaipur, whereby, he not only allowed the application dated 29-12-1999 filed by the respondent husband to plead his case through the lawyer of his choice Shri Subhash Chandra Sharma, but also granted permission to petitioner-wife to plead her case through the lawyer of her choice though no such request was made by her.
2. Respondent husband had earlier filed an application for divorce before the Family Court, Udaipur seeking divorce from his wife present petitioner, which was dismissed on 30-3-1995 by then Judge of Family Court. Thereafter, the petitioner wife filed application under Sec. 9 of the Hindu Marriage Act for restitution of conjugal right against her husband before the Family Court, Udaipur which was allowed on 26-10-1996 by the then Judge of Family Court (Annex.2). Instead of complying with the orders at Annex. 1 and 2 passed by the Family Court, Udaipur, only with a view to harass the petitioner, the respondent husband filed an application under Section 13(i)(A)(ii) of the Hindu Marriage Act before the Family Court. Udaipur stating that his wife failed to comply with the decree passed by the Family Court regarding restitution of conjugal right, therefore, decree of divorce be passed in his favour. There is no pleading in this case to this effect, but this fact is not disputed by the learned counsel for the respondent Shri Bhatnagar.
3. It is nothing but harassment, but unfortunately the learned Judge of Family Court, Udaipur entertained such application and after framing the issues the case was fixed for evidence on 7-6-1999. On that day an application was filed under Order 8 Rule 9 C.P.C. seeking permission to file rejoinder and the case was thereafter adjourned from time to time for recording evidence, but he failed to examine the witnesses in support of his case. The learned Judge of Family Court ought to have appreciated the fact that the respondent husband was indulging in delay tactics, but unfortunately the proceedings went on merrily before the Learned Judge. Thereafter, on 29-12-1999 the respondent husband filed an application before the Family Court simply praying that he wants to engage Shri Subhash Chandra Sharma to plead and appear on his behalf the case pending before the Family Court (Annex. 3). It is a small application in Hindi, which I would like to reproduce, which is as under :–
ekuuh; ikfjokfjd U;k;ky;]
mn;iqj A
lqjsUnz Hkalkyh
cuke Jhefr dSyk’k Hkalkyh
eq- ua-
izkFkhZ dh vksj ls fuosnu gS fd %&
1- ;g fd eS izkFkhZ lqjsUnz
Hkalkyh viuh vksj ls vf/koDrk Jh lqHkk”k pUnz th ‘kekZ dks fu;qDr dj iSjoh
djokuk pkgrk gwW A
2- ;g fd eq> izkFkhZ dks vius
vf/koDrk ds tfj;s iSjoh djus gsrw btktr drbZ tkuk U;k;ksfpr gS A
vr% izkFkZuk gSs fd esjh vksj ls
esjs vf/koDrk Jh lqHkk”k pUnz th dks iSjoh djus gsrw btktr nh tkos A
fnukad
29&12&2000
lqjsUnz dqekj Hkalkyh
,l Mh@&
4. The aforesaid application at Annex. 3 seeking assistance of a lawyer was seriously objected by the petitioner wife by filing reply at Annex. 4 dated 23-3-2000, which is as under:–
izkFkZuk&i= dk tokc
izkFkhZ }kjk izLrqr izkFkZuk i= dk tokc foi{kh
dh vksj ls fuEu gS %&
1- ;g fd izkFkhZ us izkFkZuk fdl
fu;e ,oa dkuwu ds rgr is’k fd;k gS] ;g vius izkFkZuk i= esa vafdr ugh fd;k gSs A
2- ;g fd izkFkZuk i= dh dye la[;k
1 ¼,d½ esa izkFkhZ us ;g dgha ij ntZ ugh fd;k gS fd izkFkhZ lqHkk”kpUnz ‘kekZ
ls gh D;ksa iSjoh djkuk pkgrk gS] tcfd izkFkhZ us iwoZ esa Hkh ,d nkok fookg
foPNsn dk fnukad 17&8&92 dks is’k fd;k] tks nkok ekuuh; U;k;ky; vkius [kkfjt
dj fn;k] ,oa ftldh vihy Hkh ekuuh; jktLFkku mPp U;k;ky;] tks/kiqj esa gqbZ] og
Hkh [kkfjt gks xbZ A bl lkjs izdj.k dh dk;Zokgh esa izkFkhZ us fgLlk fy;k] Hkkx
fy;k iSjoh dh A blfy;s odhy fu;qDr ugh fd;k tk ldrk gS A dsoy ek= foi{kh;ksa dks
tyhy ,oa ijs’kku djus ds fy;s og izkFkZuk i= is’k fd;k x;k gS A
3- ;g fd izkFkZuk i= dh dye la[;k
2 ¼nks½ vlR; gkus ls vLohdkj Qsesyh dksVZ ,DV 1984 dh ;g Li”V ea’kk gS fd
ikfjokfjd U;k;ky; ls lacaf/kr fookn esa vf/koDrkvksa dks iSjoh ugha djus nh
tkosa] D;ksafd blls fookn esa odhyksa }kjk vuko’;d rwy Mkyk tkrk gS A ,oa Qsesyh
dksVZ 1984 dh nQk&13 ds rgr vf/koDrk dks iSjoh djus ds fy;s fu;qDr ugh fd;k
tk ldrk gS A izkFkhZ irk ugh gS vkSj i<+k fy[kk ugh gks A
4- izkFkZuk i= dh dye esa lHkh rF;
xyr fy[ks gS A izkFkhZ us izkFkZuk i= dks eqdnesa dks yEck djus dh xtZ ls is’k
fd;k gS vkSj izkFkhZ us foi{kh;ksa dks djhc 12 lky ls eqdnesa ckth ls my>k
j[kk gS vkSj vHkh Hkh bl dsl esa xokg ds fy;s pkj ekSds ys pqek gS vkSj odhy }kjk
iSjoh ds fy;s vujxy vk/kkjks ij izkFkZuk i= is’k dj fn;k gS] tks pyus ;ksX; ugh gS A
vr% izkFkZuk gS fd izkFkhZ dk
izkFkZuk i= fujLr fd;k tkos] izkFkhZ dh lk{; can dj izkFkhZ dk nkok [kkfjt fd;k
tkos A rkbZn esa ‘kiFk i= is’k gS A
mn;iqj
,l Mh@&
fnukad
23&3&2000
gLrk{kj foi{kh;k
5. From the above reply at Annex. 4, it is clear that not only the respondent husband is educated person, but he is also very well off because he is having gold and silver shops. It is also clear that the respondent husband was very well equipped with the Family Law as earlier way back in 1992 he filed a suit for divorce against his wife and when the same was dismissed, he challenged the same in appeal before this Court. It also clearly appears from the aforesaid reply that the respondent husband was simply harassing the petitioner since last 12 years. Unfortunately, none of the aforesaid aspects have been considered by the Learned Judge, Family Court while passing the impugned order on 23-3-2000 itself, the day on which the reply at Annex.4 was filed by the petitioner wife before him. It is a small order, which I would like to reproduce, which is as under :–
ikfjokfjd U;k;ky;] mn;iqj
¼jkt-½
lqjsUnz dqekj
cuke Jhefr dSyk’k Hkalkyh
vkMZj ‘khV
23&2&2000 izkFkhZ lqjsUnz dqekj mifLFkr
A
foi{kh;k
Jhefr dSyk’k mifLFkr
foi{kh;k
Jhefr dSyk’k us vkt izkFkhZ ds izkFkZuk i= ckcr iSjoh gsrw U;k;fe= dh vuqefr
fnykus dk tckc is’k fd;k] udy izkFkhZ dks nh x;h A
izdj.k esa izkFkhZ ds izkFkZuk i=
ckcr iSjoh gsrw U;k;fe= dh vuqefr fnykus ij nksuks i{kks dks lquk x;k A
izdj.k dh ifjfLFkfr;ksa dks
ns[krs gqos nksuks i{kkas dks iSjoh gsrw U;k;fe= dh vuqefr nh tkrh gS A
vk;Unk nksuks i{k iSjoh gsrw vius
vius U;k;fe= dks ykdj iSjoh djkus A vkbZUnk ,d izkFkZuk i= foi{kh;k ds izkFkZuk
i= fnukad 17&8&99 ij o ‘kgknr izkFkhZ gsrw fnukad 2&5&2000 dks
is’k gks
,l Mh@&
6. From the aforesaid Impugned order passed by the learned Judge, Family Court it is clear that without applying his mind to the requirement of law and without considering the averments made in the reply affidavit at Annex. 4 by the petitioner wife before him, he simply passed an order of granting permission to the applicant husband as well as opponent wife before him to plead their case through the lawyer of their choice. While passing the order he has completely ignored the fact that the petitioner wife had never prayed for legal assistance, still he passed such order of providing legal assistance to her as well by granting such permission to the respondent husband. He has simply stated that:–
izdj.k dh ifjfLFkfr;ks dks ns[krs
gqos nksuks i{kksa dks iSjoh gsrw U;k;fe= dh vuqefr nh tkrh gS A
7. What are the circumstances have not at all been stated in his impugned order. At the cost of repetition. I may state that if he had applied his mind then the facts and circumstances which I have narrated hereinabove shows that the respondent husband was not at all entitled for any legal assistance. Instead of protecting the interest of deserted wife, the learned Judge passed the impugned order at Annex. 5, which is not only against the law, but against the human conscience. Family Courts are established for the purpose of speedy justice to the deserted wife and not for this type of harassment. If the Family Courts pass such order then it will shake the confidence of litigating public and they will not come to the courts for justice and that will be the saddest day for the institution.
8. Section 13 of the Family Courts Act, 1984 (for short the ‘Act’) reads as under :–
“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 necesary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.”
9. It starts with non obstante clause, which shows that 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. This Section was inserted in the Act by the Legislature in its wisdom so as to avoid unnecessary delay in disposal of cases filed before the Family Courts and with the intention that the victims may get speedy justice. It is true that proviso to Section 13 empowers the Family Court to have the assistance of legal expert as amicus curiae but it is only when it considers it necessary, otherwise not.
10. It was contended by the learned counsel for the respondent husband that by
passing the impugned order at Annex.5 substantial justice has been done by the learned Judge, Family Court as the legal assistance is provided to both the husband and the wife, therefore, this Court should not interfere with such order in exercise of its powers under Article 27 of the Constitution of India.
11. From the impugned order at Annex. 5 passed by the learned Judge of Family Court it nowhere appears that the learned Judge thought it necessary in the interest of justice to have assistance of legal expert as amicus curiae. By passing the said impugned order at Annex.5, the learned Judge has only facilitated the respondent husband to prolong the case pending before him so that his destituted wife continue to suffer.
12. I am conscious of the fact that this is a petition under Article 227 of the Constitution of India. I am also conscious of the Judgment of Hon’ble Supreme Court reported in AIR 1984 SC 38, wherein, it is held that the scope of Article 227 of the Constitution of India is very narrow and limited and even error of law cannot be corrected by the High Court in its supervisary jurisdiction. However, from the peculiar facts and circumstanes of the case, it is clear that by passing the impugned order at Annex. 5 the learned Judge of Family Court has not only committed an error of law, but also committed jurisdictional error, therefore, there is no alternative for this Court but to interfere with such order. If this Court does not interfere with such order, then I am of the opinion that it is failing in discharge of its duty.
13. In view of the above discussion, this petition is allowed. The impugned order at Annex.5 passed by the learned Judge, Family Court, Udaipur on 23-3-2000 is hereby quashed and set aside. Accordingly, application at Annex.3 filed by the respondent husband before the Family Court, Udaipur is also dismissed.
14. Now, the learned Judge of Family Court shall proceed with the case pending before him and decide the case as early as possible strictly in accordance with law as the petitioner wife is suffering since long.
15. This is a fit case in which exemplary cost should be awarded as the petitioner wife is made to suffer by the respondent husband for all this time only because he is very well off and well settled in life, therefore, while allowing this petition the respondent husband is directed to a pay a special cost of Rs. 10,000/- to the petitioner within one month from today.
16. Copy of this order be placed in the confidential file of the Learned Judge.