Bar on Legal Representation: Section 13 of Family Courts Act challenged before Rajasthan High Court

Shruti Mahajan May 13 2019
rajasthan high court

The Constitutional validity of Section 13 of the Family Courts Act, which prohibits lawyers from appearing before Family Courts, has been challenged before the Rajasthan High Court.

A Bench of Justices Alok Sharma and Narendra Singh Dhaddha at Jaipur issued notice to the Centre, Bar Council of India, as well as the State of Rajasthan in a PIL filed by advocate Ashish Davessar assailing the validity of this provision.

The petitioner, who is a practicing lawyer, argued the matter in person.

It has been contended by the petitioner that Section 13 imposes an arbitrary and unreasonable restriction on the lawyers from appearing before Family Courts.

Section 13 of the Family Courts Act, which is under challenge, reads:

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”

It is the petitioner's case that the provision not only violates a legal practitioner’s right to practice law under Article 19(1)(g) of the Constitution of India but also impinges on the right to fair trial of the public.

"Section 13 of The Family Courts Act, 1984 is not only violative of a legal practitioner’s right to practice law guaranteed under Article 19(1)(g) of the Constitution of India but also is a brutal assault on the right to fair trial of litigant public at large."

The petition states that the freedom guaranteed under Article 19(1)(g) is valuable and cannot be violated on grounds which are not established to be in public interest or just on the basis that it is permissible to do so. For placing a complete prohibition on any professional activity, there must exist some strong reason for the same with a view to attain some legitimate object, the petition reads.

The restriction imposed by Section 13 of the Family Courts Act, 1984 is not only unreasonable and arbitrary, but also beyond the interest of the general public. On the contrary, it is directly antithetical to public interest. There is no direct and proximate nexus between Section 13 of the Family Courts Act, 1984 and the object sought to be achieved by it, the petitioner contends.

Importantly, the petition places reliance on Section 30 of the Advocates Act, 1961. The said provision confers on an advocate the right to practice in all courts including the Supreme Court and also tribunal or before any person who is legally authorised to take evidence.

It is the contention of the petitioner that the Family Court falls within the definition of the expression ‘Courts’ enshrined in Section 30(i) of Advocates Act, 1961. The Family Court is also legally authorised to take evidence as the suits or proceedings of the nature mentioned in Explanation to Section 7(1) of the Family Courts Act, 1984, cannot be decided without taking evidence and conducting a full-fledged trial. The role of a legal practitioner becomes crucial and indispensable in such cases where evidence has to be adduced.

"It cannot even be conceived in the first place that suits and proceedings of the nature mentioned in the Explanations to Section 7(1) of the Family Courts Act, 1984 which are adversarial in nature, require a full fledged trial and moreover involve complex and intricate legal issues, can be conducted by the parties  without their counsel and decided by the court without assistance of lawyers. Equally fallacious it is to assume that these suits and proceedings can be decided by the court without taking evidence."

Thus, Section 13 which bars legal practitioners is not only violative of lawyers' right under Article 19 but also violates the right to free and fair trial of the litigant.

The Jaipur Bench of the High Court, while issuing notice in the matter, has posted the matter for hearing on July 4.

[Read Order]

Ashish Davessar vs UOI

[Read Petition]

Section 13 of Family Courts Act petition

 

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