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2014 Supreme(Tri) 205
IN THE HIGH COURT OF TRIPURA
Utpalendu Bikas Saha, S. Talapatra, JJ.
Rinku Biswas - Appellant
Versus
Dilip Biswas - Respondent
F.A. No. 04 of 2011 and Crl. Rev. Pet. 16 of 2011Decided On : 04-06-2014
For the Appellant :P. Dhar, Advocate
For the Respondents:R. Guha, Advocate
The main legal point established in the judgment is the importance of following procedural requirements, ensuring the right to cross-examine witnesses, and providing legal representation and aid, especially for uneducated and poor litigants.
Headnote:
Family Court Procedure - Family Courts Act, 1984 - Sections 10, 11, 12, 13, 14, 15, 16 - The judgment discusses the procedural irregularities in the Family Court's proceedings, the right to legal representation, recording of oral evidence, and the admissibility of certain documents. It emphasizes the importance of cross-examination and the need for legal aid, especially for uneducated and poor litigants. The court sets aside the previous judgment and orders the matters to be remanded to the Family Court for decision afresh after giving the parties an opportunity to cross-examine the witnesses and engage legal aid if necessary.
Fact of the Case:
The appellant and the petitioner challenged the judgment and order of the Family Court, alleging serious procedural irregularity and miscarriage of justice. The respondent argued that the Family Court had not committed any irregularity in conducting the proceedings.
Finding of the Court:
The court found that the Family Court had committed procedural irregularities, especially in the recording of oral evidence and the denial of the right to cross-examine witnesses. It emphasized the importance of legal representation and legal aid, particularly for uneducated and poor litigants. The court set aside the previous judgment and ordered the matters to be remanded to the Family Court for decision afresh.
Issues: The main issues included procedural irregularities in the Family Court's proceedings, the right to legal representation, recording of oral evidence, and the admissibility of certain documents. The court also addressed the need for legal aid, especially for uneducated and poor litigants.
Ratio Decidendi: The court held that the Family Court had failed to follow the procedural requirements of the Family Courts Act, especially regarding the recording of oral evidence and the right to cross-examine witnesses. It emphasized the importance of legal representation and legal aid, particularly for uneducated and poor litigants.
Final Decision: The court set aside the previous judgment and ordered the matters to be remanded to the Family Court for decision afresh after giving the parties an opportunity to cross-examine the witnesses and engage legal aid if necessary.
JUDGMENT
S. Talapatra, J.1. Both the appeal, being F.A. No. 04/2011, only the 'appeal' hereinafter, and the criminal revision petition, being Crl. Rev. P. No. 16/2011, only the 'revision petition' hereinafter, are taken up together for disposal as the subject matter of those matters are ex facie entwined and any decision in the appeal would inescapably impact the decision in the criminal revision petition, in view of exception provided in Section 125(4) of the Cr.P.C. Ms. P. Dhar, learned counsel appearing for both the appellant and the petitioner has submitted that while passing the impugned judgment dated 03.01.2011, delivered in T.S. (RCR) No. 129/2010 and the order dated 03.01.2011, delivered in Misc. 06/2010, the Family Court has committed serious procedural irregularity and appreciated the evidence in a manner that has resulted in the miscarriage of justice.
2. From the other side, Ms. R. Guha, learned counsel appearing for the respondent has submitted that in view of the provisions of Sections 15 and 16 of the Family Courts Act, 1984, it cannot be stated that the Family Court has committed any irregularity in conducting the proceeding or in appreciating the evidence. If the evidence so recorded by the Family Court are weighed, it would be apparent that the appellant and the petitioner could not satisfactorily introduce the evidence, establishing her reasons of leaving the matrimonial home. In one breath, she has stated to the witnesses that for impotency of the respondent, she had left the matrimonial home, but on the other breath, her reason as sought to be established is that for inhuman torture she had to leave the matrimonial home.
3. While scrutinising the record, we find that the parties were not allowed to cross-examine the witnesses adduced by the either parties. That apart, the materials in the petition for restoration, being T.S. (RCR) No. 129/2010 had been used in the proceeding drawn under Section 125 of the Cr.P.C., being Misc. 06/2010. Such proceeding cannot be sustained in view of the decision of this Court in Anjana Dey (Mandal) vs. Subal Mandal, reported in (2014) 1 TLR 773, where this Court has observed as under:
4. Reference may be made to the provisions of the Family Courts Act, 1984. Section 10 lays down the procedure generally to be followed and provides that the Code of Civil Procedure and the Code of Criminal Procedure shall apply subject to the rules framed under the Act. However, the Family Court can always lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings.
5. Section 11 of the Act provides that all proceedings are to be held in camera and Section 12 permits the Family Court to take assistance of a medical expert or any other welfare expert.
6. Section 13 reads as follows:-
"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."
7. It is thus obvious that no party to a suit or proceeding before a Family Court is entitled as a matter of right to be represented by a legal practitioner. However, me Family Court is empowered to seek the assistance of a legal expert as amicus curiae.
8. Section 14 of the Act permits the Family Court to receive in evidence certain documents even if they are not relevant or admissible under the Indian Evidence Act.
9. Sections 15 and 16 of the Family Courts Act read as follows:-
"15. Record of oral evidence.--In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum sha
