Piyush Kumar Rastogi vs Smt. Archana Varshney alias Vasudha

D. S. Sinha, J.—Instant appeal, u/s 19 of the Family Courts Act. 1984, is directed against the judgment dated January 18, 2000, rendered by the Principal Judge. Family Court. Moradabad, in Family Court Suit No. 37 of 1998, instituted by Smt. Archana Varshney alias Vasudha, the respondent herein, u/s 13 of the Hindu Marriage Act, 1955, whereby the decree of divorce against the appellant has been granted.

For assailing the judgment under appeal, twin grounds raised by Shri Madhusudan Dikshit, learned counsel of the appellant, are ;

(1) the alleged violation of Order XVII. Rule 3 of the Code of Civil Procedure. 1908 : and

(2) the alleged illegal rejection of the prayer of the appellant for permission to be represented by a legal practitioner.

Elaborating the first ground, the learned counsel of the appellant submits that the family court erred in proceeding to decide the suit inasmuch as the date on which the Court decided to proceed under Order XVII, Rule 3 of the Code of Civil Procedure, 1908, (hereinafter called ''the Code''), was not the date for production of evidence by the parties.

From perusal of the impugned judgment, it is abundantly clear that January 18, 2000, the date on which the Court proceeded to decide the suit under Order XVII, Rule 3 of the Code, was in fact the date fixed for production of the evidence by the parties. Therefore, on failure of the appellant to cross-examine the respondent who had examined herself as a witness and also on failure to produce his evidence, the family court was well within its jurisdiction to proceed to decide the suit under Order XVII, Rule 3 of the Code. The first ground raised by the learned counsel of the appellant, therefore, fails.

Coming to the second ground urged by the learned counsel of the appellant, suffice it to say that Section 13 of the Family Courts Act. 1984, unequivocally declares 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. Section authorises the family court to seek the assistance of a legal expert as amicus curiae, if it considers it necessary in the interest of justice. Obviously, the appearance of a legal practitioner is barred by the Statute. However, assistance of a legal expert may be availed by the family court as amicus curiae, if found necessary in the interest of justice. The family court did not find it necessary in the interest of justice to avail the assistance of the legal practitioner and, therefore, rightly rejected the prayer of the appellant in that regard.

The Court has looked the matter on merits also, and is of the opinion that the impugned judgment is perfect and does not suffer from any such infirmity which may warrant interference by this Court. It is not disputed that the respondent appeared in the witness box and examined herself in support of her plea regarding cruelty and desertion raised by her and the appellant declined to cross-examine her. It is also not in dispute that the appellant failed to produce any evidence in rebuttal or otherwise. In the absence of any evidence to the contrary, the family court accepted the testimony of the respondent and arrived at a conclusion that the plea of cruelty and desertion raised by the respondent was fully established. Having arrived at a finding to the effect that the plea of the respondent regarding desertion and cruelty was fully established, the family court had no choice except to allow the petition for divorce instituted by the respondent and grant her decree of divorce prayed for.

All told, the appeal lacks merit and is dismissed. There is no order as costs.