SAMARENDRA JENA Vs. SANGHAMITRA BISWAL

JUDGEMENT

(1.) Being aggrieved by the order dated 7.1.2013 passed by the learned Judge, Family Court, Bhubaneswar in C.P. No. 68 of 2010 rejecting the application to permit the petitioner-husband for engagement of legal practitioner under Section 13 of the Family Courts Act, he has preferred W.P.(C) No. 863 of 2013. The wife being petitioner in W.P.(C) No. 1011 of 2013, has approached this Court seeking for a direction to the learned Judge, Family Court, Bhubaneswar to dispose of C.P. No. 68 of 2010 within a time frame. Since both the cases arise out of C.P. No. 68 of 2010, they are heard together and disposed of by this common judgment. The petitioner-husband filed C.P. No. 68 of 2010 before the learned Judge, Family Court, Bhubaneswar for dissolution of marriage, which was performed under the Special Marriage Act. In course of hearing, an application was filed by the petitioner-husband, who was respondent in the aforesaid C.P. No. 68 of 2010 before the learned Judge, Family Court, Bhubaneswar praying to permit him to be represented through a lawyer vide Annexure-1 on 3.4.2012. The said application was rejected by the learned Judge, Family Court, Bhubaneswar vide order dated 7.8.2012 without assigning any reason and therefore, the petitioner-husband approached this Court by filing W.P.(C) no. 14916 of 2012. On consideration of the contentions raised therein, this Court by order dated 19.12.2012 set aside the order dated 7.8.2012 passed by the learned Judge, Family Court, Bhubaneswar rejecting the application for representation by legal practitioner and remitted the matter to the said court for reconsideration of the application dated 3.4.2012 strictly in consonance with law by passing a speaking order (afresh), consequence thereof, the impugned order in Annexure-3 dated 7.1.2013 has been passed, which is under challenge in W.P.(C) No. 863 of 2013.

(2.) On being noticed, the opposite party-wife entered appearance and supported the order passed by the learned Judge, Family Court, Bhubaneswar stating that in view of the provisions contained in Section 13 of the Family Courts Act, the order passed is absolutely correct and needs no interference by this Court at this stage.

(3.) Mr. R.C. Sarangi, learned counsel for the petitioner-husband assails the impugned order dated 7.1.2013 on the ground that the learned Judge, Family Court has not considered the contentions raised in the application filed under Annexure-1 in proper perspective and has stated that though the petitioner-husband relied upon the judgment of this Court in Sadhana Patra v. Subrat Pradhan,2006 1 OLR 524 he has not filed the order/decision and he has abruptly came to the conclusion thereby depriving the petitioner-husband to avail the assistance of a lawyer for the purpose of cross-examination and making argument on his behalf. He further submitted that though reliance was made upon the judgment of the apex court in S.D. Joshi and others v. High Court of Judicature at Bombay and others, 2011 1 SCC 252 the learned Judge, Family Court has not appreciated the said judgment in proper perspective and rejected the application without any application of mind. Several judgments have been referred to in the writ petition filed by the petitioner-husband reported in State of Orissa Vs. Sudhansu Sekhar Misra & others, , : 1968 AIR(SC) 647 Rajpur Rudra Meha & others Vs. State of Gujarat, , : 1980 AIR(SC) 1707 M/S. Amar Nath Om Prakash & others Vs. State of Punjab & others, , : 1985 AIR(SC) 218 Som Mittal Vs. Govt. of Karnataka, , : 2008(3) SCC 574 and Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University, Sirsa & another, , : 2008(9) SCC 284. According to Mr. Sarangi, depriving the petitioner by rejecting the application to permit him to engage a lawyer to defend his case violates Article 29 of the Constitution and therefore, he seeks for quashing of the said order.