N.N.MATHUR,J. - (1.) THIS miscellaneous appeal filed under Section 19 of the Family Courts Act, is directed against the order of the Judge, Family Court, Jodhpur dated 1.4.2003 dismissing the appellant's application filed under Section 13 of the Family Courts Act, 1984, hereinafter referred to as 'the Act of 1984' read with Rule 22 of the Rajasthan High Court Family Court Rules, 1990, hereinafter referred to as 'the Rules of 1990' seeking leave to be represented through a Counsel.
(2.) THIS respondent -husband filed a petition in the Court of Judge, Family Court, Jodhpur against the appellant -wife under Section 13 of the Hindu Marriage Act, 1955, hereinafter referred to as 'the Act of 1955' for divorce. The notice of the petition was served on the appellant -wife at her Kapadganj address in the State of Gujarat, where she is residing with her parents. She used to travel from Kapadganj to Jodhpur for attending the Family Court on dates of hearing, escorted by her parents. On account of illness, she could not appear on 17.5.2001, which led to ex parte proceedings against her. However, the ex parte proceedings were recalled by order dated 19.7.2001. It was a great harassment to her parents and herself to travel from Kapadganj to Jodhpur on every date of hearing. In these circumstances, leave was sought to be represented through Counsel. The application was opposed by the respondent -husband on the ground that the appellant -wife being an educated lady holding the qualification of M.A., B.Ed. and also a student of LL.B. final, could travel alone and defend her case. The respondent -husband placed reliance on a decision of the learned Single Judge of this Court in Smt. Kailash Bhansali v. Surendra Kumar, reported in 2000 (3) WLC (Raj.) 543. In the said case, the Judge, Family Court, Udaipur granted leave to the party to be represented through a Counsel. On appeal, the learned Single Judge of this Court set aside the said order with a cost of Rs. 10,000/ -. The said judgment has been set aside by the Division Bench in special appeal being D.B. Special Appeal No. 550/2000 decided on 15.12.2000. However, the Judge, Family Court preferred to rely on the judgment of the learned Single Judge in utter disregard to the Division Bench judgment. In the opinion of the learned Family Judge, the difficulty of visiting Jodhpur for attending the Family Court on dates of hearing, could be redressed by directing respondent -husband to pay the actual expenses incurred. It was further observed that she is not only M.A., B.Ed. but also student of LL.B. The learned Judge, Family Court made a personal remark against the appellant -wife that she can defend her own case much more effectively than a Lawyer. Thus, the learned Judge, Family Court made a personal remark against the appellant -wife that she can defend her own case much more effectively than a Lawyer. Thus, the learned Judge by the impugned order dated 1.4.2003 rejected the application filed by the appellant under Section 13 of the Family Courts Act. The core question which arises for consideration in the instant appeal is that in the facts of the case as to whether the appellant -wife is entitled to appear through Counsel? In this connection, it would be apt to read Section 13 of the Act of 1984 as follows; 'Section 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.'
(3.) IT would be further relevant to refer to Rule 22 of the Rules of 1994, which is extracted as follows: 'Permission for representation by a Lawyer - -The Presiding Officer of a Family Court, in his discretion, may permit a lawyer/Advocate to appear in the Court wherever he feels that it is necessary in the interest of justice.' ;