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{FA(MAT)No.197/2024}

2026:CGHC:536-DB

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

FA(MAT) No. 197 of 2024

{Arising out of judgment and decree dated 22-2-2024 in Civil Suit

No.356A/2022 of the Principal Judge, Family Court, Janjgir, District

Janjgir-Champa}

Judgment reserved on: 19-12-2025

Judgment delivered on: 06-01-2026

Judgment uploaded on: 06-01-2026

Anchal Agrawal, W/o Arvind Agrawal, D/o Sambhudayal Didwania, Aged

about 41 years, R/o Bada Bazaar, Mali Para, Khetrajpur, Distt. Sambalpur

(Odisha)

(Defendant)

... Appellant

versus

Arvind Agrawal, S/o Fattehchand Agrawal, Aged about 45 Years, R/o

Kuber Mohalla, Ward No.3, Naila, Tehsil Janjgir, District Janjgir-Champa

(C.G.)

(Plaintiff)

... Respondent

For Appellant :Mr. Himanshu Kumar Sharma, Advocate.

For Respondent :Mr. Shobhit Koshta, Advocate.

Amicus Curiae:Mr. Manoj Paranjpe, Senior Advocate with Mr. Rishabh

Gupta, Advocate.

Division Bench: -

Hon'ble Shri Sanjay K. Agrawal and

Hon'ble Shri Sanjay Kumar Jaiswal, JJ.

C.A.V. Judgment

Sanjay K. Agrawal, J.

1.Feeling aggrieved and dissatisfied with judgment & decree dated 22-

2-2024 passed by the Principal Judge, Family Court, Janjgir, District

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{FA(MAT)No.197/2024}

Janjgir-Champa in Civil Suit No.356A/2022, the appellant herein/

defendant has preferred this appeal under Section 19 of the Family

Courts Act, 1984, questioning the said judgment & decree by which

the Family Court has decreed the suit filed by the plaintiff/respondent

herein granting decree of dissolution of marriage in favour of the

plaintiff.

2.In this first appeal preferred by the appellant herein/defendant, the

following two questions arise for determination: -

1.Whether the Family Court is legally justified in proceeding ex

parte against the appellant herein/defendant and further

justified in passing ex parte decree granting decree of divorce

in favour of the respondent herein/plaintiff?

2.Whether the Family Court is justified in refusing to provide legal

aid to the appellant herein/defendant on the ground that she

has failed to make a written application to the District Legal

Services Authority seeking legal aid?

And/or

Whether the Family Court is justified in not appointing amicus

curiae as per Section 13 of the Family Courts Act, 1984 read

with Rule 14 of the Chhattisgarh Family Courts Rules, 2007?

3.The aforesaid decree impugned passed by the Family Court has

been challenged on the following factual backdrop: -

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{FA(MAT)No.197/2024}

(For the sake of convenience, parties hereinafter will be

referred as per their status shown and ranking given in the civil suit

before the Family Court.)

3.1)Marriage of the appellant herein/defendant was solemnized

with the respondent herein/plaintiff as per Hindu rites and customs

on 3-7-2007 at Marwadi Dharamshala, Naila, District Janjgir-Champa

and out of the said wedlock, they were blessed with two children

namely Chirag, who was born on 28-6-2008 and Ansh, who was born

on 24-9-2011. Matrimonial discard took place between them leading

to filing of application under Section 13 of the Hindu Marriage Act,

1955 by the husband for dissolution of marriage, on 26-9-2022

before the Principal Judge, Family Court, Janjgir, District Janjgir-

Champa, which was registered as Civil Suit No.356A/2022 in which

the plaintiff/husband has sought for appointment of amicus curiae for

his legal representation in the matter by filing an application under

Section 13 of the Family Courts Act, 1984. However, notices were

issued to the defendant/wife and ultimately, the defendant/wife

appeared before the Family Court and on 22-12-2022, the services

of amicus curiae were granted to the plaintiff/husband under Rule 14

of the Chhattisgarh Family Courts Rules, 2007 and thereafter, the

case was fixed for reconciliation and filing of written statement on 28-

11-2023 by the Family Court and on that day, both the parties

appeared and the matter was sent for consideration before the

National Lok Adalat to be held on 16-12-2023, but on account of

absence of the defendant/wife, the matter could not be considered in

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{FA(MAT)No.197/2024}

the National Lok Adalat and it was sent to the regular court fixing the

date on 16-1-2024. On 16-1-2024, the defendant/wife could not

appear and she was proceeded ex parte and the case was fixed for

recording of plaintiff's evidence on 29-1-2024. On 29-1-2024, the

defendant/wife appeared, but expressed her inability that on account

of her financial condition, she is unable to engage counsel for which

the Family Court advised her to approach the District Legal Services

Authority at 1.50 p.m., thereafter the matter was again taken-up for

hearing at 4.35 p.m. and in that proceeding the Family Court has

recorded that the defendant/wife did not approach the District Legal

Service Authority, therefore, affidavit of the plaintiff/husband and his

two witnesses namely, Abhishek Agrawal & Anshuman Sharma

under Order 18 Rule 4 of the CPC were taken on record and the

matter was fixed for plaintiff's evidence on 3-2-2024 and thereafter,

the matter was fixed for final argument on 19-2-2024. On 19-2-2024

final argument was heard and ultimately, judgment & decree was

passed on 22-2-2024 dissolving the marriage between the parties

and refusing to grant permanent alimony.

4.Feeling aggrieved and dissatisfied with the judgment & decree

impugned, the instant appeal has been preferred under Section

19(1) of the Family Courts Act, 1984 by the appellant herein/

defendant/wife stating that the Family Court has erred in granting

decree of dissolution of marriage in favour of the plaintiff/husband.

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{FA(MAT)No.197/2024}

5.Mr. Himanshu Sharma, learned counsel appearing on behalf of the

appellant herein/defendant/wife, would submit that the Family Court

is absolutely unjustified in proceeding ex parte against the appellant

herein/defendant/wife and in not granting any legal aid to her. He

would further submit that affidavits of the plaintiff/husband and his

two witnesses were taken on record on 29-1-2024. He would also

submit that the Family Court has also not provided the services of an

amicus curiae to the defendant/wife as provided under Rule 14 of the

Chhattisgarh Family Courts Rules, 2007 and thereby the impugned

judgment deserves to be set aside.

6.Mr. Shobhit Koshta, learned counsel appearing on behalf of the

respondent herein/plaintiff/husband, would submit that since the

matter could not be considered in the Lok Adalat, it was fixed before

the regular court on 16-1-2024 and on that day, the defendant/wife

did not appear before the Family Court and, therefore, the Family

Court has rightly proceeded ex parte against her. He would further

submit that on 29-1-2024, the defendant/wife was advised to make

an application before the District Legal Services Authority, which she

did not make and, therefore, the Family Court has rightly proceeded

for recording of the plaintiff's evidence and after hearing the plaintiff/

husband, the impugned decree has been passed which is in

accordance with law, as such, the appeal deserves to be dismissed.

He would also submit that by virtue of Section 10 of the Family

Courts Act, 1984, the Code of Civil Procedure, 1908, is not fully

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{FA(MAT)No.197/2024}

applicable to the proceeding before the Family Court and thus, the

Code of Civil Procedure, 1908, would not be applicable to the

proceeding before the Family Court, as such, the present appeal

deserves to be dismissed.

7.Mr. Manoj Paranjpe, learned Senior Advocate appearing as amicus

curiae, would submit that 16-1-2024 was the date fixed for

consideration of the matter before the National Lok Adalat and it was

not the date fixed for hearing. He would further submit that by virtue

of Sections (5), (6) & (7) of Section 20 of the Legal Services

Authorities Act, 1987, the Family Court has to proceed to deal with

such case from the stage which was reached before such reference

under sub-section (1) and that is for conciliation/filing of written

statement, therefore, 16-1-2024 was not the date fixed for hearing

and as such, the Family Court could not have proceeded ex parte

against the defendant/wife. He would also submit that since on 29-1-

2024, the defendant/wife expressed her inability orally before the

Family Court that she is unable to engage counsel and she could not

appear before Court from Sambalpur (Odisha) on each and every

date of hearing, therefore, the Family Court ought to have provided

legal aid to her in light of Regulation 3(5) of the National Legal

Services Authority (Free and Competent Legal Services)

Regulations, 2010, as oral requests for legal services may also be

entertained in the same manner as an application under sub-

regulations (1) and (2) and the Family Court is absolutely unjustified

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{FA(MAT)No.197/2024}

in merely asking her to make application before the District Legal

Services Authority and thereafter in proceeding further with the

matter without providing any legal aid to her. Mr. Paranjpe, learned

amicus curiae, would further contend that under Rule 14 of the

Chhattisgarh Family Courts Rules, 2007, the assistance of a legal

expert as amicus curiae would have been provided to the

defendant/wife at the State cost in the interest of justice for which

fees and expenses have to be borne out of revenues of the State,

which the Family Court has failed in both the counts by not providing

legal aid and also not providing amicus curiae under Rule 14 of the

Chhattisgarh Family Courts Rules, 2007, thereby the judgment &

decree impugned cannot be sustained and liable to be set aside.

8.We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also gone through the

record with utmost circumspection.

Re: Question No.1: -

9.Question No.1 is reproduced herein-below for ready reference: -

"Whether the Family Court is legally justified in proceeding ex

parte against the appellant herein/defendant and further

justified in passing ex parte decree granting decree of divorce

in favour of the respondent herein/plaintiff?"

10.On 28-11-2023, both the parties were present before the Family

Court and the case was fixed for reconciliation and filing of written

statement and on the request of the parties, the matter was directed

to be placed before the National Lok Adalat to be held on 16-12-

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{FA(MAT)No.197/2024}

2023, but in the National Lok Adalat, the defendant/wife could not

appear, therefore, the case was directed to be relisted before the

regular Family Court on 16-1-2024. Admittedly, 16-1-2024 was not

the date fixed for hearing before the Family Court. In this regard, the

provisions contained in Section 20 of the Legal Services Authorities

Act, 1987, which deals with cognizance of cases by Lok Adalats,

particularly, sub-sections (5), (6) & (7) may be noticed herein

profitably, which provide as under: -

"20. Cognizance of cases by Lok Adalats.—(1) to (4) xxx

(5) Where no award is made by the Lok Adalat on the ground

that no compromise or settlement could be arrived at between

the parties, the record of the case shall be returned by it to the

court, from which the reference has been received under sub-

section (1) for disposal in accordance with law.

(6) Where no award is made by the Lok Adalat on the ground

that no compromise or settlement could be arrived at between

the parties, in a matter referred to in sub-section (2), that Lok

Adalat shall advice the parties to seek remedy in a court.

(7) Where the record of the case is returned under sub-section

(5) to the court, such court shall proceed to deal with such case

from the stage which was reached before such reference under

sub-section (1)."

11.A careful perusal of the aforesaid provision would show that where

no award is made by the Lok Adalat on the ground that no

compromise or settlement could be arrived at between the parties,

the record of the case shall be returned by it to the court, from which

the reference has been received under sub-section (1) for disposal in

accordance with law and where no award is made by the Lok Adalat

on the ground that no compromise or settlement could be arrived at

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{FA(MAT)No.197/2024}

between the parties, in a matter referred to in sub-section (2), that

Lok Adalat shall advice the parties to seek remedy in the court and

further, sub-section (7) of Section 20 of the Legal Services

Authorities Act, 1987, provides that where the record of the case is

returned under sub-section (5) to the court, such court shall proceed

to deal with such case from the stage which was reached before

such reference under sub-section (1), meaning thereby, in the instant

case, before making reference to the National Lok Adalat on 16-12-

2023, the case was listed for reconciliation between the parties and

for filing of written statement, which was admittedly not the date of

hearing of suit.

12.The question as to what is the meaning of "hearing of the suit" came

to be considered by the Madhya Pradesh High Court in the matter of

Rambabu Ghasilal Goyal v. Bhagirath Prasad Basantilal

1

wherein

it has been held that Order 17 Rule 2 read with Order 9 Rule 6 of the

CPC would be attracted to mean a suit to have been fixed for

hearing, only when the date fixed should be for taking up of

evidence, hearing of arguments or considering the questions relating

to the suit, which is distinct from interlocutory matters, and the suit

could not be proceeded ex parte on the date when it is fixed only on

hearing of interlocutory matters, and it was observed as under: -

“7.In order that a suit may be regarded to have been fixed

for hearing, it should be the date for taking up of evidence, or

hearing of arguments, or considering of questions relating to

the suit, which would enable the Judge to finally come to an

adjudication upon it, and not for consideration of merely

11983 MPLJ 455

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{FA(MAT)No.197/2024}

interlocutory matters. In this case, the trial Court, purporting to

act under Order. 17, Rule 2 read with Order 9, Rule 6, Civil

Procedure Code, appears to have acted on the assumption

that from 7-8-1981, the "hearing of the suit" was adjourned to

21-8-1981 and that the latter date was a date to which the

"hearing of the suit" had been adjourned. In this respect, the

trial Court appears to have acted in oblivion of the correct

position of law governing the situation. Order 17, Rule 2, Civil

Procedure Code provides that-

"Where, on any day to which the hearing of the suit is

adjourned, the parties or any of them fail to appear, the

Court may proceed to dispose of the suit in one of the

modes directed in that behalf by Order IX or make such

other order as it thinks fit."

(Emphasis supplied.)

Order 9, Civil Procedure Code refers to cases of default of

appearance of parties at the first hearing, whereas this Rule

(Rule 2 of Order 17) makes the provisions of Order 9

applicable to cases of such default on the adjourned hearing.

Now, even on the adjourned hearing, in order that the Court

may, on failure of a party to appear, proceed to dispose of the

suit in one of the modes directed in that behalf by Order 9, it is

necessary that the hearing of the suit should have been

adjourned from an earlier date to a subsequent date. To put it

differently, if the hearing of the suit is not so adjourned, the trial

Court will have no jurisdiction to proceed in one of the modes

directed in that behalf by Order 9, or make such order as it

thinks fit. I am fortified in this view by the ratio of the decision

in Balmukund v. Lachmi Narain, AIR 1920 Pat. 595, wherein it

has been held that-

"Rules 2 and 3 of Order 17, apply only to cases where the

actual hearing of the suit has been adjourned, and by the

hearing of the suit it meant the hearing at which the Judge

would be either taking evidence or hearing arguments or

would have to consider questions relating to the

determination of the suit which would enable him finally to

come to au adjudication upon it. But in cases where it

was clearly never intended - that there should be a

hearing of the suit in the ordinary sense of the word but

merely some interlocutory matter decided between the

parties as to the future conduct of the suit, the provisions

of these rules have no application."

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The law on the point has been further laid down in Manohar

Dass v. Birandari Sheikhupurain, AIR 1936 Lah. 280, thus:

"By the hearing of the suit is meant the hearing at which

the Judge would be either taking evidence or hearing

arguments or would have to consider questions relating to

the determination of the suit which would enable him

finally to come to an adjudication upon it.

In a case where a Commissioner is appointed and is

asked to submit his report by a certain date and the

Commissioner before that date files an application praying

for an extension of time, it is for the Court to extend the

time which the Commissioner asks for or it can refuse it.

The parties have nothing to do with the matter. The date

on which the Court expected the report of the

Commissioner is not "the date of the hearing."

In Balmukund Ram Marwari v. Madho Prashad, AIR 1924 Pat.

714, where the suit was adjourned for appointment of a

guardian on plaintiff's petition and the suit was dismissed in

default of the plaintiff's appearance, it was held that the suit

could not be so dismissed for default, nor the date so fixed

could be regarded to be a date fixed for disposal of the suit.

*** *** ***

11.In this view of the matter, the trial Court had no

jurisdiction to proceed ex parte against the defendant on

21.8.1981. As a logical corollary flowing from this legal

position, it has further to be held that all subsequent orders,

passed by the trial Court, without jurisdiction. As a sequel to

the aforesaid discussion, it is clear that the impugned order

manifests exercise of jurisdiction in an illegal manner and/or

with material irregularity. If the impugned order is allowed to

stand, the defendant-applicant herein will suffer irreparable

injury and it will occasion failure of justice also.”

13.One of us (Sanjay K. Agrawal, J.) also in the matter of Smt.

Umaravati Bai (Died) v. Brijmohan Sahu and others

2

, has taken a

similar view and clearly held that when the matter is fixed for

interlocutory proceeding and not for hearing of the suit or for

22025(2) CGLJ 112

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recording of evidence or for questions relating to hearing of the suit,

such proceeding cannot be called as hearing of the suit.

14.In the instant case, as per Section 20(7) of the Legal Services

Authorities Act, 1987, before making reference, the case was fixed

for reconciliation between the parties and for filing of written

statement and as it was fixed for interlocutory proceeding and it was

not fixed for hearing of suit, the Family Court was jurisdiction-less to

proceed ex parte on 16-1-2024 against the defendant/wife in light of

the principle of law laid down in Rambabu Ghasilal Goyal (supra)

and Smt. Umaravati Bai (Died) (supra), as when the case was

called-up, it was not fixed for hearing of suit.

15.At this stage, argument of learned counsel for the defendant/wife that

by virtue of Section 10 of the Family Courts Act, 1984, which deals

with the procedure to be applied in the Family Court, the provisions

of the Code of Civil Procedure, 1908, would not be applicable,

deserves to be considered. Sections 10 & 14 of the Family Courts

Act, 1984 state as under: -

“10. Procedure generally.—(1) Subject to the other provisions

of this Act and the rules, the provisions of the Code of Civil

Procedure, 1908 (5 of 1908) and of any other law for the time

being in force shall apply to the suits and proceedings [other

than the proceedings under Chapter IX of the Code of Criminal

Procedure, 1973 (2 of 1974)] before a Family Court and for the

purposes of the said provisions of the Code, a Family Court

shall be deemed to be a civil court and shall have all the

powers of such court.

(2) Subject to the other provisions of this Act and the

rules, the provisions of the Code of Criminal Procedure, 1973

(2 of 1974) or the rules made thereunder, shall apply to the

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proceedings under Chapter IX of that Code before a Family

Court.

(3) Nothing in sub-section (1) or sub-section (2) shall

prevent a Family Court from laying down its own procedure

with a view to arrive at a settlement in respect of the subject-

matter of the suit or proceedings or at the truth of the facts

alleged by the one party and denied by the other.

14. Application of Indian Evidence Act, 1872.—A Family

Court may receive as evidence any report, statement,

documents, information or matter that may, in its opinion, assist

it to deal effectually with a dispute, whether or not the same

would be otherwise relevant or admissible under the Indian

Evidence Act, 1872 (1 of 1872).”

16.A careful perusal of Section 10(1) of the Family Courts Act, 1984

would reveal that it empowers a Family Court to be a Civil Court for

the purposes of exercising all powers vested in a Civil Court and the

provisions of the CPC have been made applicable to the

proceedings before the Family Court, but at the same time, it has

been expressly stipulated in Section 10(1) of the Act of 1984 itself

that such application of the CPC shall be "subject to the other

provisions of this Act and the Rules". Sub-section (3) of Section 10

of the Act of 1984 postulates that nothing in Section 10(1) shall

prevent the Family Court from laying down its own procedure so as

to deal with the matter in issue before it i.e. for arrival at a settlement

in respect of the lis of any suit/proceedings before it or to determine

the truthfulness of the facts in dispute. This provision by itself would

clearly demonstrate that the legislature, while broadly mandating for

application of the CPC to proceedings before a Family Court, has

vested discretion in favour of such Family Court to devise a

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{FA(MAT)No.197/2024}

procedure on its own, as Section 20 of the Act of 1984 contains a

clause having overriding effect vis-a-vis anything contained in any

other law for the time being in force. Consequently, it is held that

1.Sub-section (3) of Section 10 read with Section 20 of the Act of

1984 contains non obstante clause and gives supremacy to the

provisions of the said Act vis-a-vis the provisions of other

enactments/CPC.

2.The provisions of the CPC shall not apply to the proceedings

before the Family Court with its full rigours such as applicable

to the other provisions, however, a Family Court is entitled to

lay down its own procedure, as warranted by facts/

circumstances of a given case.

3.A Family Court is well within its powers to take into evidence

any material, which in the judicial discretion of such Family

Court, may be essential for effectively adjudicating a lis before

it whether or not such material fulfills the requirements of the

Indian Evidence Act, 1872. However, while exercising such

discretion, the Family Court ought to bear in mind that

receiving of such material by way of evidence does not violate

the basic principles of our legal system.

17.In the instant case, it is not the case of the plaintiff/husband that the

Family Court has devised its own procedure in accordance with

Section 10(3) of the Act of 1984 or that Order 9 Rule 6 or Order 17

Rule 2 of the CPC would not apply in the proceeding before the

Family Court. As such, in view of the aforesaid discussion, the

Family Court is absolutely unjustified in proceeding ex parte against

the defendant/wife on 16-1-2024 and therefore the subsequent

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{FA(MAT)No.197/2024}

proceeding is liable to be set aside being without jurisdiction.

Question No.1 is answered accordingly.

Re: Question No.2: -

18.Question No.2 is reproduced herein-below for ready reference: -

"Whether the Family Court is justified in refusing to provide

legal aid to the appellant herein/defendant on the ground that

she has failed to make a written application to the District Legal

Services Authority seeking legal aid?"

19.On 16-1-2024, the Family Court after proceeding ex parte against

the defendant/wife, fixed the case on 29-1-2024. On 29-1-2024, the

defendant/wife appeared in person before the Family Court and

expressed orally that she is financially weak and therefore she

cannot take the services of an Advocate/legal expert and also

expressed her inability to remain present before the Court all the way

from Sambalpur (Odisha) on each and every date of hearing on

which the Family Court advised her to approach the District Legal

Services Authority seeking legal aid. However, thereafter, when the

case was taken up for hearing at 4.35 p.m., the defendant/wife did

not appear and the Family Court enquired from the Office of the

District Legal Services Authority and came to know that she has not

approached the District Legal Services Authority and therefore

proceeded to record evidence and fixed the case on 3-2-2024. In

the opinion of this Court, the Family Court has legally erred in not

providing free legal aid to the defendant/wife as per Regulation 3(5)

of the National Legal Services Authority (Free and Competent Legal

Services) Regulations, 2010 on the oral request made by her and

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{FA(MAT)No.197/2024}

also failed to provide the services of amicus curiae on the State

expenses as provided under Rule 14 of the Chhattisgarh Family

Courts Rules, 2007, which resulted in miscarriage of justice.

20.At this stage, it would be appropriate to notice Regulation 3 of the

National Legal Services Authority (Free and Competent Legal

Services) Regulations, 2010, which states as under: -

“3. Application for legal services.—(1) An application for

legal services may be presented preferably in Form I in the

local language or English.

(2) The applicant may furnish a summary of his

grievances for which he seeks legal services, in a separate

sheet along with the application.

(3) An application, though not in Form I, may also be

entertained, if reasonably explains the facts to enable the

applicant to seek legal services.

(4) If the applicant is illiterate or unable to give the

application on his or her own, the Legal Services Institutions

may make arrangement for helping the applicant to fill-up the

application form and to prepare a note of his or her grievances.

(5) Oral requests for legal services may also be

entertained in the same manner as an application under sub-

regulations (1) and (2).

(6) An applicant advised by the para-legal volunteers,

legal aid clubs, legal aid clinics and voluntary social service

institutions shall also be considered for free legal services.

(7) Requests received through e-mails and interactive

on-line facility also may be considered for free legal services

after verification of the identity of the applicant and on ensuring

that he or she owns the authorship of the grievances

projected.”

21.A careful perusal of the aforesaid provision would show that an

application for legal services may be presented preferably in Form I

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{FA(MAT)No.197/2024}

in the local language or English. However, sub-regulation (5) of

Regulation 3 also provides that oral requests for legal services may

also be entertained in the same manner as an application under sub-

regulations (1) and (2). Here, in the present case, though oral

request was made by the defendant/wife for providing legal aid, but

the Family Court did not take pain to direct the District Legal

Services Authority to provide immediate free legal aid to her, rather

discharged its duty by simply asking her to go and obtain free

legal aid from the District Legal Services Authority by which she left

the premises in absence of any assistance and ultimately, no legal

aid was provided to her and the Family Court has proceeded ex

parte against her and ex parte decree was also passed against her.

22.In the present case, since the appellant did not make written

application for legal assistance, legal aid was not provided to her. In

this regard, the decision of the Supreme Court in the matter of

Khatri (II) v. State of Bihar

3

deserves to be noticed herein profitably.

In that case also, the accused was not informed that he was entitled

to free legal assistance nor the accused was inquired whether he

wanted a lawyer to be provided to him at State cost and the accused

remained unrepresented by a lawyer and the trial ultimately resulted

in his conviction. Their Lordships of the Supreme Court held that it

was clearly a violation of the fundamental right of the accused under

Article 21 of the Constitution of India and the trial must accordingly

3(1981) 1 SCC 627

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{FA(MAT)No.197/2024}

be held to be vitiated on account of a fatal constitutional infirmity, and

the conviction and sentence recorded against the accused must be

set aside. The decision in Khatri (II) (supra) was followed by the

Supreme Court in the matter of Suk Das v. Union Territory of

Arunachal Pradesh

4

.

23.In the instant case also, the Family Court not only remained technical

after noticing that the defendant/wife is in utmost need of free legal

aid, but also shirked from its responsibility by directing her to take-up

the appropriate proceeding before the District Legal Services

Authority for getting legal assistance, however, did not direct the

District Legal Services Authority on its own, as oral request can also

be entertained for providing legal assistance and the Family Court

could have directed the District Legal Services Authority to provide

her free legal aid. The Family Court instead of obtaining information

from the District Legal Services Authority whether the defendant/wife

has approached for legal aid, could have directed the DLSA to

provide legal assistance to her, however, it has failed to do so, which

resulted in serious miscarriage of justice to her and ex parte decree

was passed against her which resulted in violation of her

fundamental right guaranteed under Article 21 of the Constitution of

India as held by the Supreme Court in Suk Das (supra) followed in

the matter of Suhas Chakma v. Union of India and others

5

.

4(1986) 2 SCC 401

52024 SCC OnLine SC 3031

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{FA(MAT)No.197/2024}

24.This can be considered from another angle. Section 13 of the Family

Courts Act, 1984 may be noticed herein, which states as under: -

“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.”

25.A careful perusal of the aforesaid provision would show that no party

to a suit or proceeding before a Family Court shall be entitled, as of

right, to be represented by a legal practitioner. However, the proviso

appended to Section 13 gives jurisdiction to the Family Court that in

appropriate cases, if it considers it necessary, it may seek the

assistance of a legal expert as amicus curiae, in the interest of

justice.

26.As such, Section 13 of the Family Courts Act, 1984 prohibits a legal

practitioner to appear before the Family Court as a matter of right.

However, the Family Court has been conferred with power and

jurisdiction by the proviso to Section 13 of the Act of 1984 in the

interest of justice to seek the assistance of a legal expert as amicus

curiae to assist the court. As such, Section 13 of the Act of 1984

indicates that there is no total prohibition of being represented by a

legal practitioner.

27.By virtue of Section 23(d) of the Family Courts Act, 1984, the State of

Chhattisgarh after consultation with the High Court of Chhattisgarh

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{FA(MAT)No.197/2024}

has framed rules for payment of fees and expenses to legal

practitioners appointed under Section 13 as amicus curiae out of the

revenues of the State Government and the scales of such fees and

expenses. The said rules are known as the Chhattisgarh Family

Courts Rules, 2007. Rule 14 of the Chhattisgarh Family Courts

Rules, 2007 states as under: -

“14. Amicus Curiae—(1) The Family Court shall maintain a

panel of legal experts including legal practitioners, willing to be

appointed as amicus curiae.

(2) Where it appears to the Family Court that the

assistance of a legal expert as amicus curiae is necessary in

the interest of justice, the Court may appoint a legal expert

from the said panel.

(3) The amicus curiae, appointed under sub-rule (2) may

be paid by the Family Court of revenues of the State, fees and

expenses at the rates of Rupees Five Hundred per case or

proceedings or as fixed by the Family Court not exceeding Rs.

5000/- (Rupees Five thousand).

(4) The Family Court may remove the amicus curiae at

any time, if it deems necessary in the interest of justice.”

28.Rule 14(1) of the Chhattisgarh Family Courts Rules, 2007 obliges the

Family Court to maintain a panel of legal experts including legal

practitioners, willing to be appointed as amicus curiae. Sub-rule (2)

of Rule 14 reiterates the proviso to Section 13 of the Family Courts

Act, 1984, where it appears to the Family Court that the assistance

of a legal expert as amicus curiae is necessary in the interest of

justice, the Court may appoint a legal expert from the said panel.

However, sub-rule (3) of Rule 14 clearly mandates that the amicus

curiae, appointed under sub-rule (2) may be paid by the Family

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{FA(MAT)No.197/2024}

Court of revenues of the State, fees and expenses at the rates of

₹

500/- per case or proceedings or as fixed by the Family Court not

exceeding 5,000/-. Grant of free legal aid is implicit in sub-rule (3)

₹

of Rule 14, once amicus curiae is appointed in the interest of justice

to appear for a party to the suit, fee and expenses of amicus curiae

will be provided by the Family Court out of the revenues of the State.

29.In the instant case, once the defendant/wife expressed her inability

that on account of her poor financial condition she cannot engage a

counsel and she cannot appear on each and every date of hearing

and though the Family Court came to the conclusion that she needs

legal aid that too free legal aid, it ought to have appointed amicus

curiae under Rule 14(1) of the Chhattisgarh Family Courts Rules,

2007 from the panel of legal experts including legal practitioners

maintained by the Court, as the Family Court had already made up

its mind that in the interest of justice, legal experts to be appointed

and that too free of cost in the interest of justice and in that event,

fee could have been paid out of the State fund as provided under

Rule 14(3) and grant of free legal aid is implicit in Rule 14(3).

30.Assuming that the Family Court has not maintained the list of panel

of legal experts including legal practitioners, the list of panel of legal

experts including amicus curiae ought to have been directed to the

District Legal Services Authority to appoint a counsel for appearing

as amicus curiae under proviso to Section 13 of the Family Courts

Act, 1984, as the Family Court had already made up its mind that

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{FA(MAT)No.197/2024}

appointment of amicus curiae is in the interest of justice in view of

the statement made and duly recorded in the order sheet dated 29-

1-2024. As such, rather than advising the defendant/wife who was

all alone in the court to avail the services of free legal aid and make

application and thereafter inquiring from the Office of the District

Legal Services Authority and thereafter recording that she has not

approached the DLSA, the Family Court could have directed the

DLSA to provide the services of a legal expert/Advocate as amicus

curiae. Such a technical approach on the part of the Family Court

cannot be countenanced and it is hereby deprecated. Non-providing

of services of amicus curiae read with proviso to Section 13 of the

Family Courts Act, 1984 and Rule 14(2) of the Chhattisgarh Family

Courts Rules, 2007 has resulted in miscarriage of justice and denial

of fundamental/constitutional right to have free legal assistance.

Therefore, the impugned judgment & decree are liable to be set

aside on this count also.

31.The Supreme Court also in the matter of Brijesh Kumar v. State of

Uttar Pradesh

6

relying upon its earlier decisions in the matters of

Rakesh v. State of M.P.

7

and Sk. Mukthar v. State of A.P.

8

has held

that the right to legal representation sits at the core of not only the

right to life and liberty conferred by Article 21 of the Constitution, but

at the very foundation of the entirety of our justice system, be it civil

or criminal. Their Lordships further held that the right to legal

6(2021) 19 SCC 177

7(2011) 12 SCC 513

8(2020) 19 SCC 178

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{FA(MAT)No.197/2024}

representation must be available to every citizen irrespective of

economic class or financial resources.

32.As such, in light of judgment of the Supreme Court in Suhas

Chakma (supra) following in the matter of Suk Das (supra), it is held

that free legal assistance for poor and indigent at the cost of the

State is a fundamental right of a person under Article 21 of the

Constitution of India even if the person does not seek legal

assistance on his own.

33.As such, once the defendant/wife has come to the Court expressing

her inability to engage the services of a legal practitioner, the Family

Court was duty bound to either appoint amicus curiae as per the

provision contained in Rule 14 of the Chhattisgarh Family Courts

Rules, 2007, or directed the appropriate Legal Services Authority to

provide legal aid to her by appointment of an Advocate to represent

her before the Family Court and, as such, not providing free legal aid

to appellant at appropriate time has resulted in violation of her

fundamental right under Article 21 of the Constitution of India.

Question No.2 is answered accordingly.

34.Consequently, the impugned judgment & decree are liable to be set

aside on the ground that the Family Court had no jurisdiction to

proceed ex parte when the case was listed for hearing on 16-1-2024

and it is hereby set aside. The Family Court is directed to take up

the case from the stage of proceeding dated 28.11.2023.

Furthermore, the District Legal Services Authority, Janjgir-Champa is

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{FA(MAT)No.197/2024}

directed to provide free legal aid to the defendant/wife in accordance

with the National Legal Services Authority (Free and Competent

Legal Services) Regulations, 2010. Parties are directed to appear

before the Family Court on 29-1-2026.

35.The appeal stands allowed. No order as to cost(s).

36.(1)-Before parting with the record, we consider it necessary to

restate the statutory duty of the Family Courts as provided under the

provisions of the Family Courts Act, 1984 read with Rule 14(1) of

Chhattisgarh Family Courts Rules, 2007 (for short “the Rules of

2007”) to maintain a panel of legal experts including legal

practitioners willing to be appointed as amicus curiae. The statutory

framework clearly requires the Family Courts to ensure that parties

in family disputes who are unable to engage advocates due to

financial or other genuine difficulties are provided effective legal

assistance. The object of the Act of 1984 and the Rules of 2007 is

not merely to decide family disputes, but to secure real and

meaningful access to justice, particularly for women, children and

other vulnerable litigants, in keeping with the constitutional principles

of fairness and equal justice.

(2)-It has come to our notice that, in actual practice, most of the

Family Courts are generally been relying only upon the panel of

advocates maintained by the District Legal Services Authority for

providing such assistance, without maintaining a separate panel as

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{FA(MAT)No.197/2024}

contemplated under Rule 14(1) of the Rules of 2007, which is not

proper. Merely recording in an order that the litigant may approach

to the District Legal Services Authority for legal aid and legal

assistance without ensuring actual and timely legal representation,

defeats the purpose of the statutory mandate. The responsibility cast

upon the Family Court(s) cannot be treated as an empty formality

and must be discharged in a direct and effective manner.

(3)-Accordingly, we direct the Family Courts in the State of

Chhattisgarh who have not maintained a list of legal experts as

mentioned in Rule 14 (1) of the Rules of 2007 to constitute and

maintain a separate panel of advocates expeditiously without further

delay as mandated by the Rules of 2007 and whenever it is found

that a party is unable to engage an advocate and interest of justice

so requires, as per Rule 14(2) of the Rules of 2007, the Family Court

shall itself assign a legal expert from its panel so maintained to

provide legal assistance, instead of referring the matter to the District

Legal Services Authority. The fees payable to such panel advocates

shall be borne by the State Government and shall form part of the

free legal aid as per Rule 14(3) of the Rules of 2007. This direction is

issued to ensure effective delivery of justice and to uphold the

constitutional mandate of access to justice in family matters.

37.A copy of this judgment be sent to all the Family Courts of the State

to follow Rule 14(1) of the Chhattisgarh Family Courts Rules, 2007,

in its letter and spirit.

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{FA(MAT)No.197/2024}

38.Decree be drawn-up accordingly.

39.We place on record our appreciation for the assistance rendered by

Mr. Manoj Paranjpe, learned Senior Counsel, who appeared as

amicus curiae and made submissions.

Sd/- Sd/-

(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)

JUDGE JUDGE

Soma