The term "have been living separately" will have to be read in conjunction with "not having been able to live together". It is undoubtedly clear that if out of economic necessity or for reasons of employment, the spouses have been living separately and conversely, have not been able to live together, the Court will have to find out from the averments in the petition or from the oral evidence as to whether it is because of a breakdown of the matrimonal relations or for any other reason. S. 13B presupposes only those cases where cohabitation, which is the essential ingredient of a valid and subsisting marriage, has come to an end because of a total break-down of the matrimonial relationship. Again, the Legislature has provided a further safeguard, namely that the period of such separation should be at least one year prior to the date when the petition is presented. Obviously, the reason for prescribing this period is that in cases of estrangement or separation on flimsy or frivolous grounds, the Court would be justified in not passing a decree unless the facts disclose that the breach has not only been serious but such as to have lasted at least for one year. In fact, this period would effectively be extended to at least 18 months or more, having regard to the procedural delay, taking into account the waiting period of six months from the presentation of the petition.1
1. This First Appeal has come up before us for admission. However, on the application of the learned Advocates for the Appellant as well as the Respondent that the matter be admitted and finally disposed of at this stage, we have complied with their request. The Appellant in this First Appeal impugns the judgment and Order passed by the learned Judge, Family Court, Bombay, dated 18-7-1990, whereunder a joint petition of the Appellant and the Respondent for a divorce by mutual consent u/S. 13B of the Hindu Marriage Act, 1955 was dismissed.
2. The brief facts are that the Appellant and the Respondent were married according to Hindu Vedic Rites on 5-12-1956. On 28-7-1960, the Appellant gave birth to a son named Satish. The parties lived together happily till December 1986. However, in December 1986, the Respondent suffered certain financial losses in his business as a result of which disputes and dissensions arose between the Appellant and the Respondent, and they decided to live separately. It is the evidence of the Respondent that he and his wife have been living separately for about five years prior to the filing of the petition.
3. On 26-10-1989, the Respondent and the Appellant as Petitioner No. 1 and Petitioner No. 2 respectively filed a petition for divorce by mutual consent u/S. 13B of the Hindu Marriage Act, 1955. In the Petition, the Petitioners averred that they had been living separately from each other since Dec. 1986. They stated that due to incompatibility of temperament and certain differences between them, it was not possible for them to live together.
4. During the course of the hearing of the petition, the parties filed certain consent terms with regard to the payment to the wife in lieu of relinquishment of the residence by her. The consent terms also provided for the marriage expenses of the son Satish.
5. During the course of the hearing, the learned Trial Judge recorded the evidence of the Appellant as also the Respondent. The Respondent-husband stated that it was not possible for him to live together with his wife due to differences of temperament. The learned Judge thereupon queried the Respondent-husband as to why he wanted to dissolve his marriage after living with his wife for 30 years. The Respondent explained that after he had suffered certain financial losses in his business, he had suffered a nervous breakdown. Because he had stood guarantee in his business to the extent of two crores rupees, his wife disapproved of his action and quarrels ensued. The Respondent stated that he sought divorce as that was the only way he could cure himself of the tension and nerves which plagued him. When the Appellant-wife entered the witness-box, the learned Trial Judge again queried her whether she thought it was necessary to obtain a divorce after having lived together with her husband for 30 years. The Appellant-wife replied that there were differences of opinion and clashes between her and her husband and that in order to obtain mental peace, it was best that she obtained a divorce from her husband.
6. From the above evidence given by the Appellant and the Respondent, it became apparent that the two Petitioners to the divorce petition had proved that they had been living separately for a period of more than one year and that they had not been able to live together and that they had mutually agreed that the marriage should be dissolved. Hence all the ingredients necessary u/S. 13B of the Hindu Marriage Act for obtaining a divorce by mutual consent had been proved. The learned Trial Judge, however, came to the conclusion that the parties had not proved that they were unable to live together. The learned Trial Judge also came to the conclusion that the dissolution of marriage was sought with some ulterior motive such as saving the property from prospective actions of the creditors and that the divorce appeared to be an eye-wash. The learned Trial Judge stated in his judgment that he did not agree with the parties that they had not been able to live together. The learned Trial Judge concluded that there appeared to be no real differences between the husband and the wife. Now, we find it difficult to understand how the learned Trial Judge could have arrived at this conclusion in the absence of any evidence that the divorce was being sought with an ulterior motive of defrauding the husband's creditors. It is also difficult to understand why the learned Trial Judge rejected the evidence of both the parties when they stated that they have not been able to live together as husband and wife. It appears to us that the learned Trial Judge was disinclined to grant divorce to parties who had lived together in matrimony for long years. However, we do not think that personal predilections should be allowed to influence the mind of a Judge. If parties are able to prove their case within the confines of the provisions of a statute, then there is no other course left open to a Judge but to comply with the law. In the instant case, as we have pointed out, all the three ingredients required u/S. 13B of the Hindu Marriage Act had been proved by the parties. Both the parties had appeared before the Court voluntarily and had mutually agreed upon a divorce. In these circumstances, we are of the view that the learned Trial judge ought not to have denied them the prayer for divorce and dismissed the Petition.
7. Both the Appellant and the Respondent are represented before us by their respective learned Advocates and the parties are present in Court. Both the learned Advocates have made it plain to us that their respective clients were desirous of a divorce by mutual consent. Inasmuch as all the ingredients of S. 13B of the Hindu Marriage Act have been established by the evidence of both the parties, we see no reason why a decree for divorce by mutual consent should not be passed in their favour.
8. In the result, the Appeal succeeds. The judgment and order of the learned Judge of the Family Court dated 18-7-1990 is set aside. There will be a decree for divorce in favour of the parties by mutual consent. There will be no order as to costs. Order in terms of the consent terms filed at Exhibit 'A' of the Paper-Book.
Saldanha, J.
9. While concurring with the decision of my learned brother Mehta, J., and the conclusions arrived at by him, it is necessary to deal with certain additional aspects of the law and procedure relating to cases of the present type.
10. In this and several other First Appeals that have come up to this Court from the Family Courts at Bombay and Pune, the learned counsel appearing on behalf of the appellants and the respondents have brought to our notice several issues and they have also made a grievance with regard to matters which, in our opinion, require some degree of rectification. To that extent, we propose to make certain observations which, to our mind, are very essential for the effective and efficient disposal of proceedings before the Family Courtsd. These courts were specially set up with the specific objective of providing a forum for speedy and efficient disposal of all types of matrimonial litigation. It is imperative, therefore, that the parties who have already been through the trauma of a broken marriage be assisted through a considerate approach in obtaining the reliefs that they are entitled to.
11. Firstly, it is essential to interpret S. 13-B of the Hindu Marriage Act in its true sense particularly since the learned Judge presding over the Family Court has expressed certain views with regard to the requirements of this Section. S. 13B reads as follows :
"13B(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-sec. (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree".
This section was introduced by the Amendment Act of 1976 and is pari materia to the analogous provisions contained in the Special Marriage Act, 1954. Prior to 1976, dissolution of marriage by mutual consent was not permissible under the provisions of the Hindu Marriage Act, but it was found advisable by the Legislature to introduce this provision so that in those of the cases where the other grounds for dissolution of marriage do not exist, i.e. cases where the parties find it impossible and inadvisable to continue living together, must also qualify for the relief. In doing so, the Legislature brought the Hindu Marriage Act in line with matrimonial statutes in other parts of the world where temperamental incompatibility is regarded as a valid ground for dissolution of a marriage. After incorporation of this provision, a duty is cast on the Court, where the ingredients of the section are satisfied, to pass a decree without going into an investigation of other extraneous issues. Sub-sec. (2) of S. 13B enjoins upon the Court, that on the application of the parties made not earlier than six months after the date of presentation of the petition, and not later than eighteen months after the said date, that it should, after hearing the parties and making an enquiry that a marriage had been solemnized, that the averments in the petition are true, that it shall pass a decree declaring the marriage to be dissolved with effect from the date of the decree. The three ingredients with regard to which the Court must satisfy itself are, that the petition must be a joint petition presented by both the parties praying for a divorce by mutual consent, secondly, that they have been living separately for a period of one year or more prior to the presentation of the petition and lastly, that they have not been able to live together and that they have-mutually agreed that the marriage should be dissolved. The safeguards as are enumerated in S. 23 must undoubtedly be borne in mind, namely that the consent of the parties has not been obtained by force, fraud or undue influence and this aspect must necessarily be ascertained by the trial Court.
12. The term "have been living separately" will have to be read in conjunction with "not having been able to live together". It is undoubtedly clear that if out of economic necessity or for reasons of employment, the spouses have been living separately and conversely, have not been able to live together, the Court will have to find out from the averments in the petition or from the oral evidence as to whether it is because of a breakdown of the matrimonal relations or for any other reason. S. 13B presupposes only those cases where cohabitation, which is the essential ingredient of a valid and subsisting marriage, has come to an end because of a total break-down of the matrimonial relationship. Again, the Legislature has provided a further safeguard, namely that the period of such separation should be at least one year prior to the date when the petition is presented. Obviously, the reason for prescribing this period is that in cases of estrangement or separation on flimsy or frivolous grounds, the Court would be justified in not passing a decree unless the facts disclose that the breach has not only been serious but such as to have lasted at least for one year. In fact, this period would effectively be extended to at least 18 months or more, having regard to the procedural delay, taking into account the waiting period of six months from the presentation of the petition.
13. It is material to note that S. 13B, sub-sec. (2) makes it mandatory on the part of the Court to pass a decree once the above ingredients are satisfied and it is, therefore, not open to the Court to refuse to pass a decree in such circumstances. Such refusal would be contrary not only to the provisions of law but the very purpose of the amendment and would frustrate the basic objective of providing an honourable and effective dissolution of marriage in cases of matrimonial break-down without having to go through the exercise of an adversary litigation involving allegations against each other. It would be worthwhile for the trial Courts to bear in mind these principles because we have been repeatedly receiving complaints that instead of providing the unfortunate litigants with an effective relief to their problems that the matrimonial Courts have been at times taking up a difficult or technical approach which results in lingering of the litigation, often times through appeals and avoidable difficulties to the parties. Unlike other forms of litigation, the matrimonial Courts constitute a specialised forum which is duty bound to act in consonance with the needs of the hour, namely, to provide quick and efficient justice to parties who have already gone through the trauma of a broken marriage.
14. The Family Courts Act makes a provision for a reference to the Counsellor. This reference must be understood to mean that an effort be made towards an introspection into the problems that have brought the parties to a Matrimonial Court. Marriage being the bedrock of society and the most important social institution, a last effort must necessarily be made to find out the true cause of the breach and whether corrective steps arc still possible. The Counsellors are trained persons and after a session with the parties, a report is put up to the Court oftentimes that the break down is complete and beyond repair. The object of such reference to a Counsellor is not to be misunderstood to mean that the parties must be forced even against their wishes of interests to patch up a marriage which cannot be mended or to do something against their wishes. a judicious approach is essential as far as this aspect of the proceeding is concerned which pre-supposes that in border-line cases where the interests of the parties or the children require that a Judge may certainly persuade them towards a reconciliation but the duty of the Court certainly ends there.
15. In the light of this, we are of the view that the approach of the learned Judge in the present case is faulty in so far as he has disregarded the statements of both the petitioners who have unequivocably pointed out that there have been long standing problems between them which had resulted in total break-down of the marriage five years before the petition was presented and that they have, therefore, agreed mutually to put an end to the marriage. It is essential to take note of the fact that the parties in this case are not only highly educated persons but that petitioner No. 1 is a Medical Practitioner, that one must, therefore, presume that they have taken a calculated and mature decision before approaching the Court. Admittedly, the son has grown up and is earning and adequate provision has been made for petitioner No. 2 wife as per the Consent Terms. In this view of the matter, the trial Court was clearly in error in having refused the decree and the Appeal will, therefore, have to be allowed.
16. Before parting with this appeal, it is necessary for us to also refer to S. 13 of the Family Courts, Act, 1984 which 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."
17. A strong grievance has been made before us, in several cases, that have come up in appeal, from the Family Courts at Pune and at Bombay that the representation by Advocates is not being permitted and that avoidable situations have arisen because the cases have gone by default and have had to be either remanded by the High Court or entertained in appeal. A perusal of S. 13 of the Act indicates that a party to a proceeding before the Family Court shall not be entitled as of right to be represented by a legal practitioner. It is necessary to clarify that S. 13 does not prescribe a total bar to representation by a legal practitioner which bar would itself be unconstitutional. The intentment of the Legislature obviously was that the problems or grounds for matrimonial break-down or dispute being essentially of a personal nature, that it may be advisable to adjudicate these issues as far as possible by hearing the parties themselves and seeking assistance from Counsellors. The Section also makes provision for a situation whereby the Court may seek the assistance of a legal expert as amicus curiae. It is a well-known fact that the adjudication of a complicated or highly contested matrimonial dispute in the light of the law and interpretation of provisions by different Courts over a period of time, would require in given cases assistance from a legally trained mind and for this purpose, the Court has been empowered to seek the assistance of a legal expert.
18. We are, however, informed that as far as uneducated and poor persons are concerned that they are being totally handicapped in the conduct of their cases for want of legal assistance. Even as far as persons coming from the educated, and professional starta are concerned, the obvious difficulty that is involved, namely the drafting of applications and pleadings in consonance with Court requirements and the ability to conduct an examination-in-chief or a cross-examination are skills which one cannot expect of a lay person. The inevitable result is that the parties are handicapped resulting in a possible miscarriage of justice, not to mention delays and the attendent problem of having to take the matter in appeal to the High Court, This is not something which is within the ability of all the litigants. It would, therefore, be a healthy practice for the Family Court at the scrutiny stage itself, to ascertain as to whether the parties desire to be represented by their lawyers and if such a desire is expressed at this or any subsequent stage of the proceedings, that the permission be granted if the Court is satisfied that the litigant requires such assistance and would be handicapped if the case is not permitted. We are conscious of the fact that an appeal from the Family Court lies to the Division Bench of the High Court and a situation should not arise whereby at the appeal stage when the parties are represented by Advocate, that it is disclosed that the evidence or pleadings have not been in consonance with the legal requirements or that the replies or cross-examination are inadequate. It is too much to expect of lay litigants to be able to study the laws, rules, acquaint themselves with Court procedures and to conduct a trial of their own and at the same time be able to place before, the Court the relevant case law.
19. We are fortified in this view by another aspect which is peculiar to matrimonial proceedings, namely, the fact that as far as issues such as custody of children, visiting rights, maintenance, alimony, apportionment of property etc., arc concerned that the parties may not be in a position to protect their own interest or that they may not be in a position to visualise future problems of requirements and would, therefore, either give up their rights or not be in a position to agitate or safeguard them. The inevitable consequences would be either undue hardship or future litigation, both of which deserve to be avoided. We are, therefore, inclined to agree with the grievance made before us that the Family Court ought to give due credence to the desire of litigants where legal representation is concerned. In fact, R. 37 of the Family Courts (Court) Rules, 1988 reads as follows :
"37. Permission for Representation by a Lawyer : The Court may permit the parties to be represented by a lawyer in Court. Such permission may be granted if the case involves complicated questions of law or fact, if the Court is of the view that the party in person will not be in a position to conduct his or her case adequately or for any other reasons. The reason for granting permission shall be recorded in the order. Permission so granted may be revoked by the Court at any stage of the proceedings if the Court considers it just and necessary".
It is, therefore, patently clear that reading S. 13 with R. 37 that adequate provision has been made for legal representation and in the absence of convincing reasons, such permission ought not to be turned down.
20. Before parting with this judgment, it is worthwhile for us to refer to the plea made before us by both the learned counsel appearing for the respective parties, requesting that this appeal be disposed of immediately. It was pointed out to the Bench that an appeal from a decision of the Family Courts lies to a Division Bench of the High Court and in the event of the Bench being satisfied that the decision requires reconsideration that the appeal could only be admitted and that it would undoubtedly take several years for disposal having regard to the heavy backlog. Taking into account the human factor and that the delay would be extremely harsh to the parties, a request was made that the case be disposed of immediately. We have acceded to this request and disposed of the appeal at the first hearing itself, being conscious of the fact that matrimonial litigation constitutes a class of cases where expediency is of paramount necessity. The learned counsel appearing before us used the expression "instant justice" which, though ideal, is not always possible since procedural requirements have also to be complied with. It would, however, be very useful if the Family Court were to bear in mind the need for utmost expediency while dealing with this branch of litigation.
21. Order accordingly.
Print Page
Bombay High Court
Leela Mahdeo Joshi vs Dr. Mahadeo Sitaram Joshi on 9 August, 1990
Equivalent citations: AIR 1991 Bom 105, 1991 (1) BomCR 130, II (1991) DMC 125
Bench: D Mehta, M Saldanha
1. This First Appeal has come up before us for admission. However, on the application of the learned Advocates for the Appellant as well as the Respondent that the matter be admitted and finally disposed of at this stage, we have complied with their request. The Appellant in this First Appeal impugns the judgment and Order passed by the learned Judge, Family Court, Bombay, dated 18-7-1990, whereunder a joint petition of the Appellant and the Respondent for a divorce by mutual consent u/S. 13B of the Hindu Marriage Act, 1955 was dismissed.
2. The brief facts are that the Appellant and the Respondent were married according to Hindu Vedic Rites on 5-12-1956. On 28-7-1960, the Appellant gave birth to a son named Satish. The parties lived together happily till December 1986. However, in December 1986, the Respondent suffered certain financial losses in his business as a result of which disputes and dissensions arose between the Appellant and the Respondent, and they decided to live separately. It is the evidence of the Respondent that he and his wife have been living separately for about five years prior to the filing of the petition.
3. On 26-10-1989, the Respondent and the Appellant as Petitioner No. 1 and Petitioner No. 2 respectively filed a petition for divorce by mutual consent u/S. 13B of the Hindu Marriage Act, 1955. In the Petition, the Petitioners averred that they had been living separately from each other since Dec. 1986. They stated that due to incompatibility of temperament and certain differences between them, it was not possible for them to live together.
4. During the course of the hearing of the petition, the parties filed certain consent terms with regard to the payment to the wife in lieu of relinquishment of the residence by her. The consent terms also provided for the marriage expenses of the son Satish.
5. During the course of the hearing, the learned Trial Judge recorded the evidence of the Appellant as also the Respondent. The Respondent-husband stated that it was not possible for him to live together with his wife due to differences of temperament. The learned Judge thereupon queried the Respondent-husband as to why he wanted to dissolve his marriage after living with his wife for 30 years. The Respondent explained that after he had suffered certain financial losses in his business, he had suffered a nervous breakdown. Because he had stood guarantee in his business to the extent of two crores rupees, his wife disapproved of his action and quarrels ensued. The Respondent stated that he sought divorce as that was the only way he could cure himself of the tension and nerves which plagued him. When the Appellant-wife entered the witness-box, the learned Trial Judge again queried her whether she thought it was necessary to obtain a divorce after having lived together with her husband for 30 years. The Appellant-wife replied that there were differences of opinion and clashes between her and her husband and that in order to obtain mental peace, it was best that she obtained a divorce from her husband.
6. From the above evidence given by the Appellant and the Respondent, it became apparent that the two Petitioners to the divorce petition had proved that they had been living separately for a period of more than one year and that they had not been able to live together and that they had mutually agreed that the marriage should be dissolved. Hence all the ingredients necessary u/S. 13B of the Hindu Marriage Act for obtaining a divorce by mutual consent had been proved. The learned Trial Judge, however, came to the conclusion that the parties had not proved that they were unable to live together. The learned Trial Judge also came to the conclusion that the dissolution of marriage was sought with some ulterior motive such as saving the property from prospective actions of the creditors and that the divorce appeared to be an eye-wash. The learned Trial Judge stated in his judgment that he did not agree with the parties that they had not been able to live together. The learned Trial Judge concluded that there appeared to be no real differences between the husband and the wife. Now, we find it difficult to understand how the learned Trial Judge could have arrived at this conclusion in the absence of any evidence that the divorce was being sought with an ulterior motive of defrauding the husband's creditors. It is also difficult to understand why the learned Trial Judge rejected the evidence of both the parties when they stated that they have not been able to live together as husband and wife. It appears to us that the learned Trial Judge was disinclined to grant divorce to parties who had lived together in matrimony for long years. However, we do not think that personal predilections should be allowed to influence the mind of a Judge. If parties are able to prove their case within the confines of the provisions of a statute, then there is no other course left open to a Judge but to comply with the law. In the instant case, as we have pointed out, all the three ingredients required u/S. 13B of the Hindu Marriage Act had been proved by the parties. Both the parties had appeared before the Court voluntarily and had mutually agreed upon a divorce. In these circumstances, we are of the view that the learned Trial judge ought not to have denied them the prayer for divorce and dismissed the Petition.
7. Both the Appellant and the Respondent are represented before us by their respective learned Advocates and the parties are present in Court. Both the learned Advocates have made it plain to us that their respective clients were desirous of a divorce by mutual consent. Inasmuch as all the ingredients of S. 13B of the Hindu Marriage Act have been established by the evidence of both the parties, we see no reason why a decree for divorce by mutual consent should not be passed in their favour.
8. In the result, the Appeal succeeds. The judgment and order of the learned Judge of the Family Court dated 18-7-1990 is set aside. There will be a decree for divorce in favour of the parties by mutual consent. There will be no order as to costs. Order in terms of the consent terms filed at Exhibit 'A' of the Paper-Book.
Saldanha, J.
9. While concurring with the decision of my learned brother Mehta, J., and the conclusions arrived at by him, it is necessary to deal with certain additional aspects of the law and procedure relating to cases of the present type.
10. In this and several other First Appeals that have come up to this Court from the Family Courts at Bombay and Pune, the learned counsel appearing on behalf of the appellants and the respondents have brought to our notice several issues and they have also made a grievance with regard to matters which, in our opinion, require some degree of rectification. To that extent, we propose to make certain observations which, to our mind, are very essential for the effective and efficient disposal of proceedings before the Family Courtsd. These courts were specially set up with the specific objective of providing a forum for speedy and efficient disposal of all types of matrimonial litigation. It is imperative, therefore, that the parties who have already been through the trauma of a broken marriage be assisted through a considerate approach in obtaining the reliefs that they are entitled to.
11. Firstly, it is essential to interpret S. 13-B of the Hindu Marriage Act in its true sense particularly since the learned Judge presding over the Family Court has expressed certain views with regard to the requirements of this Section. S. 13B reads as follows :
"13B(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-sec. (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree".
This section was introduced by the Amendment Act of 1976 and is pari materia to the analogous provisions contained in the Special Marriage Act, 1954. Prior to 1976, dissolution of marriage by mutual consent was not permissible under the provisions of the Hindu Marriage Act, but it was found advisable by the Legislature to introduce this provision so that in those of the cases where the other grounds for dissolution of marriage do not exist, i.e. cases where the parties find it impossible and inadvisable to continue living together, must also qualify for the relief. In doing so, the Legislature brought the Hindu Marriage Act in line with matrimonial statutes in other parts of the world where temperamental incompatibility is regarded as a valid ground for dissolution of a marriage. After incorporation of this provision, a duty is cast on the Court, where the ingredients of the section are satisfied, to pass a decree without going into an investigation of other extraneous issues. Sub-sec. (2) of S. 13B enjoins upon the Court, that on the application of the parties made not earlier than six months after the date of presentation of the petition, and not later than eighteen months after the said date, that it should, after hearing the parties and making an enquiry that a marriage had been solemnized, that the averments in the petition are true, that it shall pass a decree declaring the marriage to be dissolved with effect from the date of the decree. The three ingredients with regard to which the Court must satisfy itself are, that the petition must be a joint petition presented by both the parties praying for a divorce by mutual consent, secondly, that they have been living separately for a period of one year or more prior to the presentation of the petition and lastly, that they have not been able to live together and that they have-mutually agreed that the marriage should be dissolved. The safeguards as are enumerated in S. 23 must undoubtedly be borne in mind, namely that the consent of the parties has not been obtained by force, fraud or undue influence and this aspect must necessarily be ascertained by the trial Court.
12. The term "have been living separately" will have to be read in conjunction with "not having been able to live together". It is undoubtedly clear that if out of economic necessity or for reasons of employment, the spouses have been living separately and conversely, have not been able to live together, the Court will have to find out from the averments in the petition or from the oral evidence as to whether it is because of a breakdown of the matrimonal relations or for any other reason. S. 13B presupposes only those cases where cohabitation, which is the essential ingredient of a valid and subsisting marriage, has come to an end because of a total break-down of the matrimonial relationship. Again, the Legislature has provided a further safeguard, namely that the period of such separation should be at least one year prior to the date when the petition is presented. Obviously, the reason for prescribing this period is that in cases of estrangement or separation on flimsy or frivolous grounds, the Court would be justified in not passing a decree unless the facts disclose that the breach has not only been serious but such as to have lasted at least for one year. In fact, this period would effectively be extended to at least 18 months or more, having regard to the procedural delay, taking into account the waiting period of six months from the presentation of the petition.
13. It is material to note that S. 13B, sub-sec. (2) makes it mandatory on the part of the Court to pass a decree once the above ingredients are satisfied and it is, therefore, not open to the Court to refuse to pass a decree in such circumstances. Such refusal would be contrary not only to the provisions of law but the very purpose of the amendment and would frustrate the basic objective of providing an honourable and effective dissolution of marriage in cases of matrimonial break-down without having to go through the exercise of an adversary litigation involving allegations against each other. It would be worthwhile for the trial Courts to bear in mind these principles because we have been repeatedly receiving complaints that instead of providing the unfortunate litigants with an effective relief to their problems that the matrimonial Courts have been at times taking up a difficult or technical approach which results in lingering of the litigation, often times through appeals and avoidable difficulties to the parties. Unlike other forms of litigation, the matrimonial Courts constitute a specialised forum which is duty bound to act in consonance with the needs of the hour, namely, to provide quick and efficient justice to parties who have already gone through the trauma of a broken marriage.
14. The Family Courts Act makes a provision for a reference to the Counsellor. This reference must be understood to mean that an effort be made towards an introspection into the problems that have brought the parties to a Matrimonial Court. Marriage being the bedrock of society and the most important social institution, a last effort must necessarily be made to find out the true cause of the breach and whether corrective steps arc still possible. The Counsellors are trained persons and after a session with the parties, a report is put up to the Court oftentimes that the break down is complete and beyond repair. The object of such reference to a Counsellor is not to be misunderstood to mean that the parties must be forced even against their wishes of interests to patch up a marriage which cannot be mended or to do something against their wishes. a judicious approach is essential as far as this aspect of the proceeding is concerned which pre-supposes that in border-line cases where the interests of the parties or the children require that a Judge may certainly persuade them towards a reconciliation but the duty of the Court certainly ends there.
15. In the light of this, we are of the view that the approach of the learned Judge in the present case is faulty in so far as he has disregarded the statements of both the petitioners who have unequivocably pointed out that there have been long standing problems between them which had resulted in total break-down of the marriage five years before the petition was presented and that they have, therefore, agreed mutually to put an end to the marriage. It is essential to take note of the fact that the parties in this case are not only highly educated persons but that petitioner No. 1 is a Medical Practitioner, that one must, therefore, presume that they have taken a calculated and mature decision before approaching the Court. Admittedly, the son has grown up and is earning and adequate provision has been made for petitioner No. 2 wife as per the Consent Terms. In this view of the matter, the trial Court was clearly in error in having refused the decree and the Appeal will, therefore, have to be allowed.
16. Before parting with this appeal, it is necessary for us to also refer to S. 13 of the Family Courts, Act, 1984 which 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."
17. A strong grievance has been made before us, in several cases, that have come up in appeal, from the Family Courts at Pune and at Bombay that the representation by Advocates is not being permitted and that avoidable situations have arisen because the cases have gone by default and have had to be either remanded by the High Court or entertained in appeal. A perusal of S. 13 of the Act indicates that a party to a proceeding before the Family Court shall not be entitled as of right to be represented by a legal practitioner. It is necessary to clarify that S. 13 does not prescribe a total bar to representation by a legal practitioner which bar would itself be unconstitutional. The intentment of the Legislature obviously was that the problems or grounds for matrimonial break-down or dispute being essentially of a personal nature, that it may be advisable to adjudicate these issues as far as possible by hearing the parties themselves and seeking assistance from Counsellors. The Section also makes provision for a situation whereby the Court may seek the assistance of a legal expert as amicus curiae. It is a well-known fact that the adjudication of a complicated or highly contested matrimonial dispute in the light of the law and interpretation of provisions by different Courts over a period of time, would require in given cases assistance from a legally trained mind and for this purpose, the Court has been empowered to seek the assistance of a legal expert.
18. We are, however, informed that as far as uneducated and poor persons are concerned that they are being totally handicapped in the conduct of their cases for want of legal assistance. Even as far as persons coming from the educated, and professional starta are concerned, the obvious difficulty that is involved, namely the drafting of applications and pleadings in consonance with Court requirements and the ability to conduct an examination-in-chief or a cross-examination are skills which one cannot expect of a lay person. The inevitable result is that the parties are handicapped resulting in a possible miscarriage of justice, not to mention delays and the attendent problem of having to take the matter in appeal to the High Court, This is not something which is within the ability of all the litigants. It would, therefore, be a healthy practice for the Family Court at the scrutiny stage itself, to ascertain as to whether the parties desire to be represented by their lawyers and if such a desire is expressed at this or any subsequent stage of the proceedings, that the permission be granted if the Court is satisfied that the litigant requires such assistance and would be handicapped if the case is not permitted. We are conscious of the fact that an appeal from the Family Court lies to the Division Bench of the High Court and a situation should not arise whereby at the appeal stage when the parties are represented by Advocate, that it is disclosed that the evidence or pleadings have not been in consonance with the legal requirements or that the replies or cross-examination are inadequate. It is too much to expect of lay litigants to be able to study the laws, rules, acquaint themselves with Court procedures and to conduct a trial of their own and at the same time be able to place before, the Court the relevant case law.
19. We are fortified in this view by another aspect which is peculiar to matrimonial proceedings, namely, the fact that as far as issues such as custody of children, visiting rights, maintenance, alimony, apportionment of property etc., arc concerned that the parties may not be in a position to protect their own interest or that they may not be in a position to visualise future problems of requirements and would, therefore, either give up their rights or not be in a position to agitate or safeguard them. The inevitable consequences would be either undue hardship or future litigation, both of which deserve to be avoided. We are, therefore, inclined to agree with the grievance made before us that the Family Court ought to give due credence to the desire of litigants where legal representation is concerned. In fact, R. 37 of the Family Courts (Court) Rules, 1988 reads as follows :
"37. Permission for Representation by a Lawyer : The Court may permit the parties to be represented by a lawyer in Court. Such permission may be granted if the case involves complicated questions of law or fact, if the Court is of the view that the party in person will not be in a position to conduct his or her case adequately or for any other reasons. The reason for granting permission shall be recorded in the order. Permission so granted may be revoked by the Court at any stage of the proceedings if the Court considers it just and necessary".
It is, therefore, patently clear that reading S. 13 with R. 37 that adequate provision has been made for legal representation and in the absence of convincing reasons, such permission ought not to be turned down.
20. Before parting with this judgment, it is worthwhile for us to refer to the plea made before us by both the learned counsel appearing for the respective parties, requesting that this appeal be disposed of immediately. It was pointed out to the Bench that an appeal from a decision of the Family Courts lies to a Division Bench of the High Court and in the event of the Bench being satisfied that the decision requires reconsideration that the appeal could only be admitted and that it would undoubtedly take several years for disposal having regard to the heavy backlog. Taking into account the human factor and that the delay would be extremely harsh to the parties, a request was made that the case be disposed of immediately. We have acceded to this request and disposed of the appeal at the first hearing itself, being conscious of the fact that matrimonial litigation constitutes a class of cases where expediency is of paramount necessity. The learned counsel appearing before us used the expression "instant justice" which, though ideal, is not always possible since procedural requirements have also to be complied with. It would, however, be very useful if the Family Court were to bear in mind the need for utmost expediency while dealing with this branch of litigation.
21. Order accordingly.
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