VIMAL CHAND BOHRA Vs. SANJAY GANDHI

JUDGEMENT

(1.) Instant civil misc. appeal has been filed by the appellants/ non-applicants under Sec. 19 of the Family Court Act against the order dtd. 5/4/2018 passed by the learned Judge, Family Court No.2, Jaipur, whereby the application filed by the respondent/ applicant for issuing direction to the non-applicant/ appellant for cross-examination of the applicant by the non-applicants and not to provide legal assistance in the matter to him for the purpose of cross-examination, has been allowed.

(2.) Learned counsel contended that after coming into the force of Sec. 30 of the Advocates Act, 1961 which has been brought into force from 15/6/2011, no prior permission is required to appear before the Learned Family Court. Even for the sake of argument it may be presumed that by virtue of Sec. 13 of the Family Courts Act, 1984 any permission is required then also the discretionary powers should be exercised by the Court judicially and meticulously. The discretionary power of any Court depends upon the facts and circumstances of each case. The discretionary power may be exercised in the interest of Justice. In the present case, the matter is related with custody of minor female child. Learned counsel contended that in the matter of granting the custody of a child, the relevant factor is only the welfare of the child. In such circumstances the question which is under consideration before the Learned Family Court is complex in nature and same can be proved or disproved by a person who is having legal expertise. The appellants submitted all the aforesaid facts before the learned Family Court but the learned Family Court completely failed to appreciate the aforesaid important factual aspect of the matter and allowed the application filed by the respondent without any cogent reason and as such the impugned judgment to the extent of allowing the application filed by the respondent is liable to be quashed and set aside on account of not exercising the jurisdiction vested in it. Permission for appearance through an Advocate is in interest of justice and moreso the learned Family Court also gets the proper legal assistance through an Advocate because a lawyer is gifted with natural quality, ability and experience not only to persuade to judges on a point of fact or law but also the parties to settle their dispute. Initially the learned District and Sessions Judge was having jurisdiction of the matter under the provisions of Guardians and Wards Act, 1890 ('the Act of 1890' for short) and there was no such provision by which any permission was required to put appearance of an advocate on behalf of any of the party with the prior permission. Looking to the nature of the matter, entire life of the child and looking to the complexity of the matter, the legal assistance is necessary requirement in such matter.

(3.) In support of his submissions, learned counsel for the appellants has placed reliance upon following judgments:-