- (1.) This an application under Article 227 of the Constitution of India is filed at the instance of Mohit Gupta, the opposite party in Misc. Case No. 117/2007 under section 125 of the Code of Criminal Procedure and is directed against the order passed by the Ld. Principal Judge, Family Court, Calcutta on 05-03-2010 whereby the Misc. Case was allowed ex parte and a sum of Rs.50,000/- per month was awarded to the wife/opposite party Swati Gupta. A short reference to the background of the case is required for the proper appreciation of the matter :- The petitioner herein was originally a man of Bokaro, Jharkhand, who is living in Liverpool Street, London, his working place. Swati Shahabadi, opposite party herein filed an application under section 125 Cr. P. C in the court of Ld. Judge, Family Court, Calcutta praying for maintenance to the tune of Rs.1,50,000/- for herself. Notice upon the petitioner being opposite party in this case was sent through registered post with acknowledgement due directing him to show cause as to why the prayer of Swati Shahabadi shall not be allowed. The notice, however, could not be served. Notice was sent to the London address but could not be served.
(2.) A substituted service of notice upon him by way of publication in the local newspaper was directed. The notice was published in Indian papers but not in any paper of London. However, on 20-08- 2009, the ld. court observed that the postal receipt issued by the G. P. O, Calcutta dated 07-01-08 addressed to the petitioner Mohit Gupta, London, U. K was despatched to London Town by Kolkata Air sorting Division on 07-08-08 and despite issuance of reclamation enquiry followed reminders by Postal Department to the concerned foreign administration, no reply was received. At that juncture, the Ld. Judge thought it expedient to take up the matter ex parte and fixed ex parte hearing of the matter on 23- 11-2009. On 23-11-2009, one Mr. Sandip Kumar Bhattacharya, learned advocate appearing before the court together with one 'vakalatnama' prayed for allowing him to represent the petitioner Mohit Gupta in the case. The Ld. Judge, Family Court rejected the prayer and also refused to give him certified copy of the order on the ground that section 13 of the Family Court Act puts an embargo to a party to a case in Family Court under Family Court's Act, 1984 to be represented by any legal practitioner. Ultimately, the Ld. Judge, Family Court heard the matter ex parte and passed the order impugned on 05-03-2010. Mohit Gupta, the husband has come up with this application challenging the legality, validity and propriety of the matter mainly on the grounds :- a) that section 13 of the Family Court Act does not create absolute impediment to engage counsels or legal practitioners by a party to the case ; and b) that the opposite party was not given any opportunity to be heard which is contrary to natural justice. I have carefully gone through the judgement impugned and all the orders passed by the Judge, Family Court since filing of application under section 125 Cr. P. C. There is no room of doubt that notice upon the opposite party could not be served and the court had to effect the service of notice by way of substituted service. But, no notice even in form of substituted service was effected in Liverpool Street, London and no publication of notice was made in any paper of U. K. However, the petitioner responded to a notice of the court which perhaps served in his Bokaro address. Therefore, he sent one legal representative on his behalf as he could not personally appear in the court from U. K. This gesture of the petitioner Mohit Gupta was ignored by the Ld. Judge. The legal position is that section 13 does not impose a complete bar to one party to a proceeding under Family Court be represented by legal practitioners. When the first part of section 13 is mandatory, the second part of the same is obviously discretionary and in a proper case, the court may permit such representation in the interest of justice.
(3.) In the instant case, admittedly, the petitioner Mohit Gupta is residing in Liverpool, London at his working place. It is also on record that he was not served with any notice personally. He somehow came to know about the case and send legal representative on his behalf to the court so that the matter can be heard on merit in his presence through his representatives. This appears to be a proper case where the court ought to have directed such representation in the interest of justice. In this connection, a decision of Bombay High Court in Leela Mahadeo Joshi v. Dr. Mahadeo Sitaram Joshi, 1991 AIR(Bom) 105, a decision of Allahabad High Court in Bansidhar v. Smt. Seema, 1992 CrLJ 1562, a decision of Andhra Pradesh High Court in R. Durga Prasad v. Union of India & Anr., 1998 AIR(AP) 290, a decision of Karnataka High Court in Mrs. Komal S. Padukone v. Principal Judge, Family Court at Bangalore City & Anr, 1999 AIR(Kar) 427, a decision of Rajasthan High Court in Smt. Laxmi Kanwar v. Laxman Singh, 2004 21 AICLR 440, can well be referred to .;