UDDIPANA GOSWAMI vs SUMAN KALYAN CHAKRABARTI

Ajit Singh, C.J.

1.By this common judgment and order, we propose to dispose of both Mat. Appeal No.14/2017 and Mat. Appeal No. 15/2017 as they involve same

issues and are filed by appellant - Uddipana Goswami - challenging the same impugned orders passed by the Family Court, Kamrup, Guwahati,

Assam.

Both the appeals have been filed by her under Section 19 of the Family Courts Act, 1984, challenging the legality and validity of the impugned

orders dated 4/11/2016 passed in respondent’s - Suman Kalyan Chakraborty - F. C. (Civil) case No. 512/2012 - for divorce - rejecting the prayer

for appointment of an amicus curiae on her behalf as well as closing the cross-examination of the plaintiff’s witnesses and the impugned order

dated 3/3/2017 passed in F.C. (Civil) Case No. 512/2012 rejecting the prayer for recalling the order dated 4/11/2016.

The brief facts are these. Appellant and respondent got married in the month of July, 2006 and out of their wedlock, a son was born on 3/3/2011.

However, shortly thereafter, their relationship got soured and husband filed F.C.(Civil) Case No. 512/2012 in the Family Court, Kamrup, seeking a

decree of divorce and also filed another application seeking custody of the minor son, which was numbered as F.C. Miscellaneous (G) Case No.

120/2012. The appellant entered into appearance and contested the cases, by filing written statement denying the allegations made against her. She

also filed one application being Miscellaneous Case No. 76A/2014 seeking a direction to allow her to sell the jointly purchased flat to bring her

belongings. In the said application, the appellant categorically expressed her consent for granting the decree of divorce on fulfilment of the above two

conditions. The said application was posted for hearing with the main F.C.(Civil) Case No. 512/2012 vide order dated 21/6/2014.

The respondent submitted his evidence in the affidavit on 4/9/2014 and also submitted the evidence of his father on 24/9/2014 and the case was

fixed for cross-examination of the witnesses. But, the respondent desired for hearing of the various petitions filed in the Miscellaneous (G) Case No.

120/2012 and as such, the Family Court, vide order dated 23/6/2016, fixed all the matters for hearing as well as cross-examination of the witnesses on

27/7/2016.

In the meantime, appellant had to go to the United States of America for some research work. Therefore, she executed one power of attorney in

favour of her brother Sri Anabil Goswami to represent her in the case till completion of her research work for two years. On 30/8/2016, her brother

filed a petition informing about the entire facts regarding her departure, which was also supported by a petition duly sworn by her in New Delhi. The

said petition was registered as Petition No.1536/2016. The respondent then prayed for time to file objections. The respondent filed his written

objections in both the petitions and also filed an application to allow Mr. Neelotpal Deka, as amicus curiae, which was granted vide order dated

22/9/2016.

In the meantime, appellant sent one petition and a letter dated 24/10/2016 directly to the Family Court from her residence in the United States of

America giving her consent for divorce and in her letter, she also prayed for appointment of her brother to present her case. But the family Court by

the impugned order dated 4/11/2016, dismissed both the petitions and closed her right to cross-examine the respondent and his witnesses.

The certified copy of the impugned order dated 4/11/2016 was obtained by the brother of the appellant on 23/2/2017 and he sent the same to the

appellant for further advice. The appellant advised him to make application before the Family Court to recall the order dated 4/11/2016 on the next

date fixed. As such, he made the prayer for recalling the impugned order dated 4/11/2016 on the date fixed. But, the Family Court vide impugned

order dated 3/3/2017 rejected the said prayer and also closed the evidence of appellant. Being aggrieved with the aforesaid two impugned orders,

appellant has preferred both the appellants as aforesaid.

After hearing the learned counsel for the parties and perusing the records, it has become transparent that appellant had to leave for United States of

America to pursue her career. She constituted her brother as her attorney by duly executing the power of attorney to present her case. Being armed

with the power of attorney, her brother filed an application before the family Court to allow him to represent the appellant and to appoint one advocate

as amicus curiae. But, the Family Court by the two orders rejected the prayers. In our considered view, the Family Court ought to have considered the

fact that the appellant has been residing in United States of America and duly constituted her brother as a lawful attorney. Therefore, her brother

ought to have been allowed to present her case before the Family Court. In the instant case, the Family Court has allowed the respondent to be

represented by an advocate. An advocate is well versed with the laws and procedures. On the other hand, appellant has been denied to be

represented by an advocate as amicus curiae. Therefore, apparently, there is denial of equal opportunity to the appellant to present her case before the

Family Court. In one hand, the respondent is represented by an advocate and on the other hand, the appellant is denied her right to be represented by

an equally trained professional, which is glaringly illegal and is wholly unjustified. The Family Court failed to see that the appellant resides in another

country and as such she had no opportunity to come and present her case in Assam. In such a situation, equity, Justice and good conscience demands

that equal opportunity ought to have been provided to the appellant also. In the fact situation of the case, the Family Court also committed an illegality

in closing the right of appellant to cross examine the respondent and his witnesses.

For these reasons, we set aside both the impugned orders dated 4/11/2016 and 3/3/2017 and direct the Family Court to allow the appellant to

present her case through her brother and even appoint an advocate as amicus curiae for her. The Family Court shall also give a reasonable

opportunity to the appellant to cross examine the respondent and his witnesses and thereafter to allow her to adduce evidence as per law.

With the above directions, the appeals are allowed.