Lawyers should not add fuel to fire in marital cases: Madras High Court asks BCI to frame guidelines

Lawyers should refrain from "adding fuel to fire" while representing litigants in matrimonial cases, observed the Madras High Court recently.

A Bench of Justices Bhavani Subbaroyan and KK Ramakrishnan made the observation after coming across a marital case where it noted that the differences between an estranged couple had become further 'inflamed' by the manner in which an advocate drafted an affidavit.

The Court expressed displeasure over the lawyer's conduct, adding that advocates should try to save, not break, marriages in such cases.

"The duty of the advocate in these types of matters is not to blow the incident out of proportion and thereby cause turbulence to the matrimonial life. The legal profession is for resolving the controversies between parties in the case of matrimonial dispute. The legal profession is for resolving the controversies between parties in the case of matrimonial dispute. The advocate should try to make the marriage and not to break it. The advocate should be a builder, not a destroyer. The advocate should not play spoil sport," the Court said.

It proceeded to set out some illustrative guidelines so that lawyers focus more on resolving the matrimonial disputes rather than exacerbating such differences or breaking up marriages.

The Court further asked the Bar Council of India (BCI) to frame guidelines on these lines so that members of the bar to resolve matrimonial disputes without "adding fuel to fire."

The guidelines suggested by the Court are as follows:

• Advocates should follow ethical standards whenever the parties solicit their advice.

• Advocates should never misguide the parties.

• Advocates should never give unprofessional advice so as to implicate the persons who are not even remotely connected to the alleged occurrence.

• Advocates should hear the client and try to advise to go for amicable settlement if possible, since it involves life of two individuals, more to say a family.

• Advocates can get the help of qualified counsellor and get a report so as to give proper advice to the party.

• Advocates should get the instructions from the client in writing as to the incidents alleged.

• Advocates should dissuade the client from roping the persons who they feel are not in anyway even remotely connected to the alleged occurrence.

• Advocates should inform the client about the legal consequences they would face if they give false complaint against the persons unconnected to the alleged incident.

• Advocates should refrain from helping the party by informing the police to arrest the persons.

• Advocates should play a neutral role and try their best to resolve the issues between husband's family and wife's family.

• In case if the party is hell-bent on giving false complaint so as to make the opposite party surrender to her whims and fancies, the advocates can play a pro active role to send them away to have a rethink.

• If any advocate does any thing unprofessional and unethical while drafting complaint or filing cases and if it comes to the notice of Bar Council, severe action is to be taken.

The Court was hearing a woman's appeals against a family court's decision to allow her husband's divorce plea and reject her plea for the restitution of conjugal rights.

The couple married in 2009. However, their relationship eventually became strained, allegedly because the wife pressured her father-in-law for a property partition. The husband claimed that she also frequently threatened to die by suicide and that she neglected their child.

His wife denied the allegations, adding that she was forced to leave the matrimonial house only because of the cruelty she faced there. She contested the husband's plea for divorce and sought a chance to restore their marriage.

While the divorce case was pending before the family court, the wife's relatives allegedly attacked the husband's family, resulting in his father's death and injuries to both himself and his mother.

In these circumstances, the husband asserted that there was no chance at a reunion with his wife. The family court found merit in his stance and granted him divorce.

After the wife challenged this order, the High Court too agreed that the marriage has broken down.

"When there is allegation of the intentional murder of the father of husband under his nose and during the intervention, he and his mother also sustained grievous injuries, it would be a inhuman approach to ask him to forget the past as a bad dream and to live with her and to keep a conducive matrimonial home," the Court said.

The Court also noted that after the husband filed the divorce plea, the wife filed a criminal case alleging cruelty by him and her in-laws, which ended in an acquittal. With such conduct, the woman has disintegrated her marriage beyond repair, the Court found before dismissing her appeals.

Advocate TK Gopalan appeared for the appellant. Advocate J Bharathan appeared for the respondent.

[Read Order]