Neutral Citation No. - 2025:AHC:46821 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 9838 of 2025 Applicant :- Prateek Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Akhilanand Mishra,Amit Kumar,Avnish Tiwari,Gaurav Tiwari,Renu Rajat Alias Renu Sahai Counsel for Opposite Party :- Amit Shukla,G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant, learned counsel for the opposite party no.2 and learned A.G.A. for the State. 2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as B.N.S.S.) has been preferred against order dated 01.02.2025, passed by Additional Principal Judge, Family Court No.3, Gorakhpur in Criminal Misc. Application (Case) No. 483 of 2022 (Apoorva Dwivedi Vs. Prateek Sharma), under Section 125 CrPC, P.S.- Ramgarh Tal, District- Gorakhpur, whereby the application filed by applicant for his appearance through amicus curiae has been rejected. 3. It has been submitted by learned counsel for the applicant that the opposite party no.2 has filed the aforesaid case under Section 125 Cr.P.C. against applicant, which is pending before the aforesaid court. The applicant is a resident of Prayagraj. The applicant has moved an application before the concerned Family Court at Gorakhpur, alleging that he has been threatened by the opposite party no.2 and her family members and he has an apprehension of his safety and thus excepting special circumstances, he may be exempted from his personal appearance and his representation be permitted through amicus curiae and thus he may be permitted to engage an amicus curiae. Learned counsel submitted that the said application has arbitrarily been rejected by the Family Court by holding that the application was not maintainable. Referring to facts of the matter, it was submitted that impugned order is liable to be set aside. 4. Learned counsel for the opposite party no.2 has opposed the application and submitted that applicant has filed the aforesaid application, making false allegations and that there are arrears of maintenance due upon him. Earlier, he was granted anticipatory bail in case under Sections 498A, 323, 377 IPC and Section 3/4 D.P. Act subject to condition that applicant shall deposit his passport before the S.S.P./S.P. concerned but he has not deposited his passport. The application of applicant was not in accordance with law. It was submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. It is apparent from record that applicant is husband of the opposite party no.2, who is facing the aforesaid proceedings under Section 125 Cr.P.C. before Additional Principal Judge, Family Court No.3, Gorakhpur. The applicant is stated to be a resident of Prayagraj. The applicant has moved an application before the concerned Family Court for his appearance through amicus curiae, raising apprehension about his safety. 7. At this stage, it may be stated that Section 13 of Family Court Act 1984 provides 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." 8. Similarly, Rule 28 of the (Allahabad High Court) Family Courts Rules 2006 reads as under:- "28. Any application for representation by a lawyer in court shall be made by such party to the court after notice to the other side, not less than one week prior to the date fixed for hearing of the petition. The case shall not be adjourned on this ground." 9. From the provision of Section 13 of Family Court Act, it is clear that generally no party instituting proceedings before the Family Court, is entitled as a matter of right to be represented by a legal practitioner but if Family Court considers it necessary in the interest of justice it may seek the assistance from a legal expert as amicus curiae. The proceedings under Chapter IX of Code of Criminal Procedure, 1973 are substantially civil in nature and the basic purpose of proceedings under Section 125 Cr.P.C. is for maintenance. In view of aforesaid facts and circumstances, it appears that the observation of Family Court that said application moved on behalf of applicant was not maintainable, is not in accordance with law. As and when physical appearance of the applicant is required, the court may direct so, but in view of proviso of Section 13 of the Family Court Act and aforesaid Rules, it can not be said that application moved by the applicant was not maintainable. Thus, the impugned order is liable to be set aside. 10. In view of aforesaid, the impugned order dated 01.02.2025 is set aside. The Family Court shall consider the matter afresh and pass an order on the application of applicant in accordance with law. 11. The application under Section 528 B.N.S.S. is disposed of in above terms. Order Date :- 3.4.2025 'SP'/- Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad