Chittapani Das vs Rinkumoni Kalita Das
2021 Latest Caselaw 2606 Gua

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GAHC010073302021




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRP(IO)/47/2021

            CHITTAPANI DAS
            S/O- LT. CHAKRAPANI DAS, C/O- N.K.CHOUDHURY, R/O- H.NO. 13, INDIRA
            GANDHI PATH, SANTIPUR, P.S. BHARALUMUKH, GHY, DIST.- KAMRUP (M),
            ASSAM, PIN- 781009, MOBILE- 8638779841



            VERSUS

            RINKUMONI KALITA DAS
            W/O- SRI CHITTAPANI DAS, D/O- LT. LAKHIRAM KALITA, R/O- DELHI
            PUBLIC SCHOOL, DHALIGAON, BONGAIGAON REFINERY, QUARTER NO.
            728 B DIST.- BONGAIGAON, ASSAM, PIN- 783385, PERMANENT R/O-
            MALIGAON, GOSALA, KRISHNA NAGAR, P.S. JALUKBARI, GHY, DIST.-
            KAMRUP (M), PIN- 781011, ASSAM



Advocate for the Petitioner   : DR. N DEKA

Advocate for the Respondent : MS. M PATHAK

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (Oral) Date : 29-10-2021

Heard Mr. P. Sharma, learned counsel for the petitioner. Also heard Ms. M. Pathak, learned counsel for the respondent.

1. The present petition under Article 227 of the Constitution of India is filed challenging Page No.# 2/5

the order dated 07.12.2019 passed in F.C.(Civil) Case No. 538/2018. For the purpose of disposal of the case, the following facts being relevant are quoted herein below :-

2. The petitioner and the respondent got married on 16.10.1997 and out of their wed lock they were blessed with two sons. Matrimonial differences arose between the petitioner and the respondent for which they are living separately. The respondent thereafter filed an application under Section 13(1)(ia) of the Hindu Marriage Act for dissolution of the marriage by a decree of divorce before the Principal Judge Family Court No. 1, Kamrup. The said proceeding has been numbered a F.C. (Civil) Case No. 538/2018. Pursuant to filing of the said proceedings, notice was issued to the petitioner and vide an order dated 17.04.2019 the Court below passed order to proceed ex-parte against the petitioner. The petitioner there upon filed a petition bearing No. 1570/2019 under order IX Rule 13 for vacating the order of ex-parte hearing dated 17.04.2019 and for permitting the petitioner to file his written statement. The Opposite side objected orally. Vide order dated 07.12.2019, the impugned order was passed thereby rejecting the petition seeking vacation of the ex-parte hearing as well as to file his written statement.

Being aggrieved, the petitioner has filed the instant proceeding by invoking the provision of Article 227 of the Constitution of India.

3. I have heard learned counsel for the parties and have perused the materials on record. From the order passed on 07.12.2019, it transpires that the Court below has rejected the prayer on the ground that the petitioner had not filed his written statement therefore the order of ex-parte hearing can not be vacated. The counsel for the petitioner submits that as no legal practitioner is permitted in the Family Court by virtue of Section13 of the Family Court Act, 1984, the petitioner was not aware that it was the requirement of law to file the written statement along with the application seeking vacation of the ex-parte order. It is also the submission of the counsel of the petitioner that the petitioner was under the belief that once the order of proceeding ex-parte was vacated, he would immediately file the written statement as per the direction of the Family Court. Apart from the above, the counsel for the petitioner submits that the petitioner shall suffer irreparably if his defence is struck off.

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4. For the purpose of deciding the present petition, it is relevant to take note of Section 10 & 13 of the Family Court Act, 1984. For convenience sake the same are quoted herein below :-

"10. Procedure Generally- (1)Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other that the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject- matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."

"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 curiae."

A perusal of the above quoted provisions would go to show that the provisions of the Code of Civil Procedure,, 1908 and any other law for the time being in force shall be applicable to suits and proceedings before the Family Court and for the purpose of the provisions of the Code, the Family Court shall be deemed to be a Civil Court and shall have all such powers of such Courts. The provisions of the Code of Criminal Procedure, 1973 as well as the Rules framed thereunder has been made applicable to the proceedings under Chapter IX of that Code before the Family Court. However both Sub-Sections (1) & (2) of Section 10 of the further stipulates that the applicability of the provisions of the Code of Civil Procedure, 1908 and the provisions of the Code of Criminal Procedure, 1973 is subject to the provisions of the Family Court Act, 1984. Sub-section (3) of Section 10 of the Family Court Act, 1984 is a Non-obstante clause thereby permitting the Family Court to lays down its procedure with a Page No.# 4/5

view to arrive at settlement in respect of the subject matter of the suit or proceedings or to arrive at the truth of facts alleged by one party and denied by the other party.

5. A glance at Section 13 of the Family Court Act, 1984 indicates that a party to a proceedings before the Family Court shall not be entitled as of right to be represented by a legal practitioner. However, it needs to be clarified that Section 13 of the said Act does not prescribe a total bar to representation by a legal practitioner and this aspect of the matter is clear from Rule 37 of the Family Courts (Court) Rules, 1988 which stipulates that the Family Court may grant permissions by a lawyer in cases which involve complicated questions of law or fact or 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 reason.

6. In the backdrop of the above and taking into consideration the submissions made by the parties let me see the impugned order. The impugned order is a result of the order dated 17.04.2019 whereby the Court below decided to proceed ex-parte against the petitioner on the ground that the petitioner was absent without steps and accordingly fixed the case for evidence of the respondent herein. Thereafter, on 01.06.2019 and 20.07.2019, the petitioner herein was absent and the case was fixed for hearing on 06.09.2019 after the respondent herein adduced her evidence on 01.06.2019 and 20.07.2019. Thereafter, on 06.09.2019, the petitioner herein filed an application for vacating of the order to proceed ex-parte. The respondent herein objected orally and the Court below fixed the matter on 02.11.2019 for orders. It was on 07.12.2019 that the impugned order was passed whereby the petition filed by the petitioner was rejected on the ground that the petitioner had not filed his written statement till the date of the impugned order. It may be relevant herein to take not that none of the orders passed prior to the impugned order, it was reflected that the petitioner could file his written statement despite the order passed to proceed ex-parte.

7. It is a trite principle of law that in a proceeding under Order IX Rule 7 of the Code of Civil Procedure, 1908, the Court is required to adjudicate as whether the reasons assigned by the Defendant for his/ her previous non-appearance is a good cause unlike the provisions of Order IX Rule 13 of the said Code which requires a sufficient cause. The question of filing the written statement would only arise when the Court upon being satisfied of the existence of the good cause puts the clock back to the date of filing of the written statement and under Page No.# 5/5

such circumstances the question of filing written statement in the present facts of the case did not arise. The Court below could have vacated the ex-parte order in the present case and directed the petitioner to file his written statement as per the discretion of the Court and if the petitioner then would have failed, the consequences as envisaged under law would have befallen upon the petitioner. However, this was not done.

8. Under such circumstances, I in exercise of the power of superintendence as well as in the interest of justice interfere with the orders dated 17.04.2019 whereby the Court below proceeded ex-parte against the respondent as well as order dated 07.12.2019 whereby the application seeking vacation of the ex-parte order was rejected. Both the parties are directed to appear before the Court below on 22.11.2021 on which date the petitioner shall file his written statement without fail. Failure on the part of the petitioner to file the written statement on 22.11.2021 would revive the orders dated 17.04.2019 and 07.12.2019. With the above observation the instant petition stands disposed of.

It is clarified that the respondent herein had adduced two witnesses. The said evidence was adduced taking into consideration that the proceedings were continuing ex-parte against the petitioner. If the petitioner files his written statement on 22.11.2021, the respondent shall be at liberty to file additional affidavit of evidence, if so advised.

JUDGE

Comparing Assistant