# Smt. Madhulika Sameer Azad v. Sri Sameer Mohan Azad

- **Citation:** (2012) 3 ILRA 1350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-12
- **Case number:** Civil Misc. Writ Petition No.52072 of 2012
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhulika-sameer-azad-v-sri-sameer-mohan-azad-42406
- **Pages:** 5

## Headnote

Family Court Act, 1984-Section 13 read
with Rule 28 of Family Courts Rule 2006Service of legal Petitioner-when can be
allowed-contingencies explained-strictly
prohibited
during
re
cancellationexemption from personal appearancenot mean to exemption for ever-Family
Court rightly exercised its desecrationwhere the husband residing in U.S.A.-can
not be interfered under writ jurisdiction.

Held: Para-19

In the instant case, the respondent is
working and living in USA and it is not
practically possible for him to attend the
proceedings at Agra on every date. He is
not denying his appearance whenever it
would be required by the court. Thus, in
the circumstances, if the family court has
permitted him to engage a lawyer, no
exception to it can be taken so as to
require any interference in exercise of
extra ordinary discretionary jurisdiction.
Case Law discussed:
1992 Crl.L.J. 1592; 1998 (2) AWC 1551

## Text

1350 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2012

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.52072 of 2012

Smt. Madhulika Sameer Azad

 ...Petitioner
Versus
Sri Sameer Mohan Azad

 ...Respondents

Counsel for the Petitioner:
Sri H.P. Dube
Sri Sanjay Mishra

Counsel for the Respondents:
...........................................

Family Court Act, 1984-Section 13 read
with Rule 28 of Family Courts Rule 2006Service of legal Petitioner-when can be
allowed-contingencies explained-strictly
prohibited
during
re
cancellationexemption from personal appearancenot mean to exemption for ever-Family
Court rightly exercised its desecrationwhere the husband residing in U.S.A.-can
not be interfered under writ jurisdiction.

Held: Para-19

In the instant case, the respondent is
working and living in USA and it is not
practically possible for him to attend the
proceedings at Agra on every date. He is
not denying his appearance whenever it
would be required by the court. Thus, in
the circumstances, if the family court has
permitted him to engage a lawyer, no
exception to it can be taken so as to
require any interference in exercise of
extra ordinary discretionary jurisdiction.
Case Law discussed:
1992 Crl.L.J. 1592; 1998 (2) AWC 1551

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri H.P. Dubey, learned
counsel for the petitioner.

2. Petitioner wife has filed this
petition aggrieved by the order dated
4.9.2012 passed by the family court Agra
allowing the respondent husband to
engage a lawyer for prosecuting the
divorce case on his behalf.

3. A little experience of the
matrimonial disputes on a bare glance on
the facts and circumstances of this
petition would reveal that the petitioner
wife has invoked the writ jurisdiction of
this Court not because the order impugned
is illegal or causes prejudice to her or
infringes her rights but to harass the
respondent husband which is sheer abuse
of the process of law.

4. The petitioner and respondent are
husband and wife.The marriage between
them was solemnized and registered at
Mumbai sometime in the year 2006.
There was a discord between them. They
started living separately. The wife at Agra
whereas the husband in job at California
(USA). The husband appears to be a
resident of Mumbai.

5. The husband initiated proceedings
for divorce against the wife at Mumbai.
The said proceedings at the instance of
wife were ordered to be transferred by the
Apex Court to the family court at Agra
where she is residing.

6. Previously, on behalf of the
husband his power of attorney holder
moved two applications for engaging a
lawyer.The
said
applications
were
rejected on the ground that the husband
3 All] Smt. Madhulika Sameer Azad V. Sri Sameer Mohan Azad
1351
himself had not appeared before the Court
for seeking permission to engage a
lawyer.

7. The present application paper no.
27 Ga seeking permission of the Court for
engaging a lawyer to represent him before
the family court was moved by him in
person. In the said application supported
by an affidavit it is stated that he has
come from USA wherein he is in job to
attend
the
proceedings.
It
is
not
practically possible for him to be present
in court on each and every date fixed in
the proceedings but he undertakes to
appear in person whenever it would be
desired and felt necessary by the court. He
is also unable to pursue the proceedings
himself without the aid of legal expert.

8. The aforesaid application has
been allowed and he has been permitted
to engage the services of a lawyer.

9. The submission of the learned
counsel for the petitioner is three fold;
first, that in the past two similar
applications moved on behalf of the
respondent have been rejected; second, in
view of Section 13 of the Family Court
Act, 1984 (hereinafter referred to as an
Act) the court can not permit engagement
of a lawyer in a routine manner
particularly when the the matter is yet to
be reconciled; lastly, the discretion of
engagement of a lawyer can not be
exercised in violation of Rule 28 of the
Rules framed under the Act.

10. The earlier applications filed on
behalf of the husband for engaging a
lawyer were rejected on a technical
ground that they were not moved by the
husband in person. The merits of the
applications were not considered. The
rejection of the said applications therefore
would not hamper or vitiate the merits of
the
order
passed
on
the
present
application. The submission in this regard
is of no value.

11. Section 13 of the Family Court
Act reads as under:-

13. Right to legal representation:-

"
Notwithstanding
anything
contained in any law, no party to a suit or
proceedings 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 curaie."

12. A plain reading of the aforesaid
provision indicates that it does not place
an absolute bar upon the engagement of a
lawyer and that the family court at its
discretion can always seek assistance of a
lawyer. In other words, engagement of a
lawyer in family court is not permissible
as of right but nonetheless in certain
contingencies a party can be allowed to be
represented by a legal practitioner.

13. Rule 24 of The Uttar Pradesh
Family Court Rules, 1995 provides that
where family court considers necessary in
the interest of justice, it may seek the
assistance of a legal expert on legal
issues. At the same time, Rule 27 of the
U.P. Family Court (Courts) Rules, 2006
which have been framed in exercise of
powers under Section 21 of the Act,
empowers the family court to permit the
parties to be represented by a lawyer in
court not only where the cases involve
1352 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
complicated questions of law but also
where the court is of the view that the
party will not be in a position to conduct
his or her case himself/herself adequately
or for any other reason. The above Rule
widens the scope for granting permission
to parties to be represented by a lawyer
before the family court by using the term
"or for any other reason.

14. In short, the conjoint reading of
Section 13 of the Act and the aforesaid
Rules in no way completely prohibits the
presence of lawyers in family courts
rather it authorizes family court in its
wisdom and discretion to permit the
parties to engage lawyers even for any
reason other than the reasons specified.

15. A Division Bench of this Court
in Banshidhar Vs. Seema 1992 Crl.L.J.
1592 considered the provision of Section
13
of
the
Act and
held that
a
representation of a party by a legal
practitioner depends upon the discretion
of the family court. The aforesaid
provision does not impose a complete ban
on the representation of the party by a
legal practitioner rather it allows the
family court to permit parties to be
represented by counsel in the interest of
justice.

16. In Prabhat Narain Tickoo Vs.
Mrs. Mamta Tickoo 1998 (2) AWC 1551
a division Bench of this Court which has
been relied upon by the learned counsel
for the petitioner it has opined that
Section 13 of the Act gives a discretion to
the Family court to permit a lawyer to
appear on behalf of a party, though
ordinarily lawyers are not permitted. The
court further observed that service of a
lawyer should not be permitted when the
court is trying reconciliation between the
parties and where divorce is being sought
by
mutual consent of the parties.
However, as divorce law and other family
laws have become complicated branch of
law and an ordinary person can not be
expected to know it, the court should
ordinarily allow the lawyers to appear on
behalf of the parties.

17. The legal position that emerges
from the above discussion can be
summerised as under:-

(i) Ordinarily, lawyers are not
permitted before family court especially
where the court is in the process of
reconciliation of the dispute between the
parties and the divorce is applied by
mutual consent;

(ii) There is no absolute prohibition
in engaging a lawyer where complicated
legal issues are involved or where parties
are not in a position to conduct there case
for want of legal knowledge or of any
other reason; and

(iii) The court can always seek legal
assistance of a lawyer, if considered
necessary;

18. Thus, the family court in
addition to the above specified occasions
in its discretion and wisdom can allow
engagement of lawyers for any other
reason which may include conditions of
the nature where it is practically not
possible for a party to attend the
proceedings
personally
on
every
date/dates in the present case.

19. In the instant case, the
respondent is working and living in USA
and it is not practically possible for him to
attend the proceedings at Agra on every
3 All] Smt. Madhulika Sameer Azad V. Sri Sameer Mohan Azad
1353
date. He is not denying his appearance
whenever it would be required by the
court. Thus, in the circumstances, if the
family court has permitted him to engage
a lawyer, no exception to it can be taken
so as to require any interference in
exercise of extra ordinary discretionary
jurisdiction.

20. Rule 28 of Rules 2006 provides
for notice to other side on the application
by a party seeking permission for
representation by a lawyer. It reads as
under:-

"Rule 28- Any application for
representation by a lawyer in Court shall
be made by such party to Court after
notice to the other side, not less than one
week prior to the date fixed for hearing of
the petition. The case shall not be
adjourned on this ground."

21. It mandates for filing such
application at least a week prior to the
date fixed for hearing of the petition after
notice to the other party. The aforesaid
Rule
contemplates
notice
of
the
application a week before hearing but not
a week's notice.

22. The said rule is to intimate the
other side that a party is thinking of
engaging a lawyer/legal expert so that the
other side may not be taken by surprise
and is pitted against a legal expert
unarmed or unprepared.

23. In the present case, a copy of the
application to engage a lawyer moved by
the respondent was served upon the
petitioner well before hearing as by then
no date was fixed for hearing. Therefore,
there is violation of the aforesaid Rule.

24. Learned counsel for the
petitioner submits that the petitioner
wanted to file objections against the said
application.

25. The Court inquired from the
learned counsel for the petitioner as to
what possible objections the petitioner
wanted to take against the engagement of
lawyer by the respondent. He appears to
be in a predicament and unable to point
out any possible objections to it. He could
not inform the Court as to the prejudice
the petitioner would suffer, if the
respondent is allowed to engage a lawyer.

26. In the totality of the facts and
circumstances, as the petitioner can not
legally deny the respondent the services
of a lawyer and that she is unable to show
any prejudice to her, I am of the view that
matter requires no intervention of this
Court
in
exercise
of
discretionary
jurisdiction under Article 226 of the
Constitution of India. However, it goes
without saying that in case the court
below enters into an exercise for
reconciliation it can always insist for the
personal appearance of the parties and
deny participation of the lawyer during
reconciliation. The engagement of lawyer
should not be taken to mean that the
personal appearance of the party is
exempted for all times. The court is
always free to have the attendance of the
parties, if considered necessary, despite
permitting engagement of lawyers.

27. The writ petition lacks merit and
is dismissed with the above observation.
---------
1354 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2012

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE MUSHAFFEY AHMAD, J.

Civil Misc. Writ Petition No. 53273 of 2012

Raja Ram

 ...Petitioner
Versus
State Of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Singh
Sri J.P. Singh

Counsel for the Respondents:
C.S.C.
Sri S.S. Yadav

Constitution
of
India-Article
226Alternative Remedy-Licence of Fair Price
Shop dealer-suspended-order withdrawn
with fine of Rs. 3000/-again revocation
of
suspension
withdrawn-without
opportunity of hearing-quashed by High
Court-on
second
time
consideration
without
opportunity
of
hearing
cancellation
order
passed-normally
where statutory appeal provided High
Court declined to interfere violation of
principle of Natural Justice-cancellation
order-held-not
sustainable-alternative
remedy-no
bar
where
principle
of
Natural Justice violated.

Held: Para-6

A bare perusal of the impugned order
would go to show that prior to the
passing of the said order, no opportunity
was given to the petitioner. In the said
order, discussion has been made that the
petitioner was given opportunity by the
inquiry officer, but nowhere it has been
mentioned
that
after
accepting
the
inquiry report, a copy of the same was
served
on
the
petitioner
or
any
opportunity was given to the petitioner
to explain his position, after submission
of such report. As we have already held
in earlier order dated 6.9.2012 passed in
Writ Petition No. 44900 of 2012 that
opportunity given by the inquiry officer
would not be sufficient opportunity
having been given to the petitioner as he
would have a right to be heard before
any final order is passed against him.

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel for
the State, Sri S.S. Yadav for complainantrespondent no. 6 and perused the
record.With the consent of the learned
counsel for the parties, this writ petition is
disposed of at this stage without calling
for a counter affidavit.

2. The petitioner is a Fair Price Shop
Dealer. On complaint made by the
respondent nos. 6 to 8 against the
petitioner, by order dated 8.6.2012, the
dealership of the petitioner was placed
under suspension. On considering the
reply of the petitioner, vide order dated
25.7.2012,
the
suspension
of
the
dealership
of
the
petitioner
was
withdrawn with the condition that the
petitioner shall deposit a sum of Rs.
3000/-, which the petitioner deposited and
thereafter continued running his fair price
shop. Then by the order dated 18.8.2012,
the
earlier
order
dated
25.7.2012
withdrawing the suspension order was
withdrawn, meaning thereby that the
suspension of the dealership of the
petitioner was to continue.

3. Challenging the same, petitioner
filed Writ Petition No. 44900 of 2012,
which was allowed by this Court vide
judgment and order dated 6.9.2012 and
the order dated 18.8.2012 was quashed. In