SADHANA PATRA Vs. SUBRAT PRADHAN

JUDGEMENT

(1.) This writ application is directed against the order dated 26.10.2005 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 211 of 2000 rejecting prayer of the petitioner to recall the order dated 23.9.2005, prayer for adjournment as well as prayer to cross-examine P.W. 1 by the counsel appointed by the Court as amicus curiae on behalf of the petitioner.

(2.) Shri Jena, learned Counsel for the petitioner challenges the order basically on two grounds, namely refusal of prayer for adjournment arbitrarily and denial of an opportunity to the counsel to cross-examine P.W. 1. Learned Counsel submitted that after the prayer for adjournment asked for on a reasonable ground was turned down, the counsel who was appointed as Amicus curiae prayed before the Court to permit him to cross-examine P.W. 1, but the same was refused on the ground that the petitioner was absent on that date and in her absence cross-examination was not permissible and that the learned Counsel appearing as Amicus curiae is only to assist the Court and cannot cross-examine the witness. It is further submitted that an Amicus curiae appointed by the Court has the same responsibility as that of an Advocate retained by the party for the purpose of conducting the case and therefore in absence of the party also the learned Counsel appearing as Amicus curiae should have been allowed to cross-examine P.W. 1. It was also contended by the learned Counsel that Section 13 of the Family Courts Act, 1984 does not put an absolute bar on appointment of an Advocate by a party to the proceeding before the Family Court and therefore though an Amicus curiae has been appointed by the Court he has the responsibility to defend the petitioner by doing all such acts as required to be done by an advocate retained by a party. In this connection, learned Counsel for the petitioner referred to Section 13 of the Family Courts Act, 1984 (hereinafter called the 'Act') and Rule 27 of the Family Court (Orissa) Rules, 1990 (hereinafter called the 'Rules') and also relied upon some decisions.

(3.) Shri Mohanty, learned Counsel for the opposite party, on the other hand, submitted that role of an Amicus curiae is limited and he/she cannot act as an Advocate retained by a party. It was contended by Sri Mohanty that Section 13 of the Act puts an absolute bar on engagement of an advocate by a party and proviso to the said provision only empowers the Court to take help of an Amicus curiae if he so desires. Learned Counsel also referred to a decision and submitted that the role of the Amicus Curiae cannot be equated with that of an Advocate retained by a party to conduct case on his behalf and therefore an Amicus curiae has no authority to cross-examine any witness examined by the adversary.