Unous Mia VsShelina Aktar

Deepak Gupta, C.J.—In view of the decision which I propose to take, it is not necessary to discuss the facts in great detail.

For the purpose of decision of this case, it would be sufficient to mention that the respondent Shelina Aktar filed a petition u/s 125 of the Code of Criminal Procedure (Cr. P.C.) claiming that she was the legally married wife of Md. Unous Mia (petitioner herein). According to her, the marriage had been solemnized on 13-05-2007 according to Mohammedan law. She claimed that she had been driven out of her matrimonial home on 07-02-2008 and alleged that since her husband was refusing and neglecting to maintain her, she was entitled to maintenance @ Rs. 3,000/- per month.

The husband filed written objection and in this written objection he denied that any marriage had taken place between the parties. Along with the written statement, certain documents were filed and one of the documents was a declaration purported to be made by Shelina Aktar on 13-05-2007 in which she had stated that she was earlier married to one Bacchu Miah as per Muslim rites and custom about four year earlier. In this declaration, she also stated that she had sworn an affidavit on 28-06-2007 but according to her, the averments made in the affidavit were false. The petitioner also along with the written statement filed one "Talaknama" purportedly executed on 28-05-2007 wherein Shelina Aktar had purportedly divorced her husband Bacchu Miah by saying "Talak" three times. In this "Talaknama", it is stated that she lived with Bacchu Miah for some time but later came to know that he was already married and, therefore, she wanted to divorce him. There was no allegation that Bacchu Miah was dead or not heard of for seven years.

The husband in his written objection also raised a plea that assuming for the sake of argument that some marriage had taken place between him and the wife Shelina Aktar, that marriage was not a valid marriage since Shelina Aktar was not properly divorced from Bacchu Miah at the time when the marriage between Unous Mia and Shelina Aktar allegedly took place.

The wife examined as many as 10 witnesses. I find that the learned Family Judge did not even give an opportunity to the husband to cross-examine the witnesses. After the statements of the witnesses of the wife were recorded, on 09-09-2009 the learned Family Judge recorded that the opposite party (husband) is present and that the opposite party denied to adduce evidence.

We must remember that before the Family Judge the parties were not represented by counsel. A Family Court does not only consist of the Family Judge but also the Counsellor attached to the Family Court. Either the Presiding Officer of the Family Court or the Counsellor should have advised the husband that he had a right to cross-examine the witnesses and also that he had a right to lead evidence. He should have also been informed that in case he did not lead evidence, the case could be decided against him. It appears that the husband must have remained under the impression that all the documents filed with the written statement would be read in evidence by the learned Judge. These documents have not even been referred to in the judgment in question. The learned Judge has come to the conclusion that the first husband of Shelina Aktar was not heard of for the last more than 7/10 years and, therefore, according to Muslim religious custom, she had divorced her husband. If the learned Judge had even cared to go through the documents, he would have realized that Shelina Aktar was only 21/22 years old and she could not have married Bacchu Miah when she was only 11 or 14 years old. If he had referred to the other documents, he would have realized that the story of Shelina Aktar being married 7 years earlier could not be accepted on the face of it and further evidence would be required to be led.

A Division Bench of this Court in Anjana Dey (Mandal) vs. Subal Mandal, [(2014) 1 TRIPURA LAW REPORTS 773] after dealing with the entire law on the subject held as follows:-

"12. One of the main issues which arises for consideration is whether the right to cross-examine witnesses is available to the parties under the Family Courts Act. A perusal of the record of the present case shows that in the divorce case filed by the husband, as many as 6 (six) witnesses were examined on behalf of the husband and 8 (eight) witnesses on behalf of the wife. If we go through the statements of the witnesses, we find that no opportunity was given to the opposite party to cross-examine the witnesses. On perusal of the statements of the witnesses examined on behalf of the wife, it is apparent that the wife who was not represented by a Counsel had no knowledge as to how a witness has to be examined and the statements of her witnesses are recorded in such a manner which gives the impression that no effort was being made either by the Presiding Officer of the Court or the Counsellor to assist the lady in examining her witnesses. This has, in our opinion, resulted in gross miscarriage of justice.

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It is here that the role of the Counsellor appointed under the Family Courts Act as well as the Presiding Officer of the Court comes in. If the Presiding Officer feels that any party, more specially the woman, is unable to present her case in a proper manner due to the reason of illiteracy or otherwise, it is the duty of the Counsellor and the Family Court to ensure that the woman is given legal aid by providing a legal aid counsel to her. Mechanically following Section 13 and rejecting the prayer for assistance of counsel is not proper. In case, the Family Court feels that a lawyer should not be appointed, then the Counsellor must aid and advise the woman as to how she should deal with the matter.

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The right of cross-examination is a very important right. In many cases the Family Courts are recording the testimony by way of affidavit. When affidavits are tendered in evidence, it has been found that more often than not these are affidavits in the language of Counsel where many facts relevant and irrelevant are stated. It is necessary that such witnesses be cross-examined. Even where a witness appears in person before the Court, the opposite party has a right to cross-examine such witness. Without cross-examination, the veracity of the statement made in the examination-in-chief cannot be tested. At the same time, the art of cross-examination is not so simple. It takes years of experience for a lawyer to learn how to effectively cross-examine a witness. How can we expect an illiterate villager to cross-examine the witnesses? As far as cross-examination is concerned, the same must be invariably allowed in every case.

De Smith in his treatise on Judicial Review of Administrative Action has held that cross-examination of witnesses must be permitted. This has become a part of the rule of the Audi Alteram Partem.

Wade in his exposition of Administrative Law has pointed out that failure to allow cross-examination by an objector leads to quashing of the administrative decision.

Where matters are simple and the disputes are limited, the Family Court may be justified in refusing legal aid, but here also it is the duty of the Family Court as well as the Counsellor attached with the Family Court to ensure that the parties are able to comprehend what is the dispute and they are also effectively able to put forth their case. In case, the matters in issue are complicated or serious allegations have been leveled which may affect the reputation of any of the parties to the dispute, the party should be permitted to engage counsel and the rejection should not be in a mechanical manner. In the present case, we find that the lady has lost her case because she was not permitted to cross-examine the witnesses of the husband whose statements have been relied upon by the learned Family Judge. The lady was not even in a position to cross-examine the witnesses. She was even denied maintenance on similar grounds."

In the present case, complicated questions were involved. (i) Whether, a Muslim woman can divorce her earlier husband by pronouncing "Talak" thrice; (ii) Whether, the first husband had not been heard of for more than 7 years; (iii) Whether, there was any legal and valid marriage between the parties; (iv) Whether, the fact that the husband was a witness to the "Talaknama" and was aware of the fact that the wife was earlier married prior to getting married to him is a ground to grant maintenance to the wife even if the marriage is invalid; are questions which need to be gone in with greater care and caution.

I am constrained to observe that the Presiding Officer of the learned Family Court failed to give opportunity to the parties in accordance with law. He also failed in his duty to advise the parties with regard to the correct position of law. He should have in such a case where the validity of the marriage was seriously in challenge appointed legal aid counsel to assist him or the parties.

Therefore, I have no hesitation in setting aside the order passed by the learned Family Judge. Since the matter relates to grant of maintenance and is an old matter, the parties are directed to appear before the Family Judge on 16-09-2014 and the learned Family Judge, if the parties request him, shall permit both the parties to lead evidence and the opposite party shall have a right to cross-examine the witnesses of the other party with the help of counsel. Thereafter, the matter shall be disposed of as early as possible, and in any event not later than 31-03-2015.

Accordingly, the revision petition is disposed of.

Send down the lower court records forthwith.