Chhattisgarh High Court directs state family courts to maintain dedicated panels of legal experts for poor litigants

Referring to the objective of the Family Courts Act, 1984, and the Chhattisgarh Family Courts Rules, 2007, the bench said the endeavour was not only 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.”

Case

The husband sought the dissolution of marriage in the family court in 2022. A year later, the case was referred to the National Lok Adalat, but due to the wife’s absence on the day of the lok adalat, no settlement was reached, and the case returned to the family court.

In January 2024, the wife failed to appear following which the court proceeded to pass an ex-parte order against her, and fixed the matter for recording of the evidence.

A month later, the family court granted an ex-parte decree of divorce and refused to grant permanent alimony after the wife failed to file a written statement and present her counsel. The wife subsequently filed a plea in the high court and challenged the divorce decree.

Directions to family courts

• Family courts in Chhattisgarh that have not maintained a list of legal experts as mentioned in Rule 14 (1) (family court shall maintain a panel of legal experts, including legal practitioners, willing to be appointed as amicus curiae) of the Chhattisgarh Family Courts Rules 2007, to constitute and maintain a separate panel of advocates expeditiously without further delay.
• Whenever it is found that a party is unable to engage an advocate and the interest of justice so requires, as per 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 (DLSA).
• The family courts are to ensure that parties in family disputes who are unable to engage advocates due to financial or other genuine difficulties are provided with effective legal assistance.
• 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 the rules of 2007.

Observations

1. Most family courts generally relying only upon the panel of advocates maintained by the DLSA for providing such assistance, without maintaining a separate panel as contemplated under the Chhattisgarh Family Courts Rules of 2007, which is not proper.
2. Merely recording in an order that the litigant may approach the DLSA for legal aid and legal assistance without ensuring actual and timely legal representation, defeats the purpose of the statutory mandate.
3. The responsibility cast upon the family courts cannot be treated as an empty formality and must be discharged directly and effectively.
4. Family court legally erred in not providing free legal aid to the woman as per the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010 on the oral request made by her and also failed to provide the services of amicus curiae on the state expenses as provided under the Chhattisgarh Family Courts Rules, 2007, which resulted in miscarriage of justice.
5. Instead of advising the wife who was all alone in the court to avail the services of free legal aid and make an application, and thereafter inquiring from the office of the district legal services authority and then 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.
6.  Such a technical approach on the part of the family court cannot be countenanced, and is deprecated.
7. The court should direct the appropriate legal services authority to provide legal aid to her by appointment of an advocate to represent her before the court, and, as such, not providing free legal aid to the appellant at the appropriate time has resulted in a violation of her fundamental right under Article 21 of the Constitution of India.

Decision

The bench set aside the family court order observing that it had “no jurisdiction to proceed ex parte” when the case was listed for hearing in 2024.

“The family court is directed to take up the case from the stage of proceeding in November 2023, and the DLSA is directed to provide free legal aid to the wife in accordance with the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010,” it ruled.