Advocates barred by law to represent matrimonial cases

Komal S. Padukone V. Principal Judge, Family Court,Bangalore (AIR) 1999 Kant 427: ILR 1999 Kant 1866 : (1999) 5 Kant LJ 667 (Relied). Appearance of members of Bar in Family court matters is not a matter of right or matter of course. Restriction is to be found on such right in section 13 of Act and in view of non-obstante clause in section 13 of Family courts Act, provisions of section 13 of Act will prevail over provisions of Advocates Act, 1961.

Hi

Could you please elobarate as the title and matter inside is not understandable

This position of law is peculiar to family courts only. Because the same matters when are filed in places where there is no family court i.e the matters are filed before the dist. judge then we do not require any permission from the court for appearance. Vakalatnama is filed as a matter of right.

Then what indian advocate have to do?  Work in LPOs and serve the MNCs?  Become experts in company law matters and serve the big companies? Become Tax law experts and serve the richest by teaching them how to evade direct and indirect taxes and loot the nation?  Have we become advocates only to serve the rich?

  A lawyer's job is to serve the oppressed, depressed and suppressed.  The matter may be criminal, civil (including matrimonial), labour and revenue, we, as advocates, have got a fundamental right to represent the marginalised sections of the society.  As the particular provision you are referrig to is not strictly implemented, we are not making it an issue.  Otherwise, we will challenge such provisions in the highest courts and also on the streets.  No one can take away our right to defend the helpless people. 

I fully agree with Adv. Chandu it is the right of the advocates to represent litigants, the rich, poor and all sections of society to put up their side effectively as per law, because litigants genarally do not have knowledge of law, how to put up their case properly and effectively. how to lead evid, argue properly etc. So advocates should not be barred from representing their clients may be in family court or any before any other tribunal.

It is not to deny the rights of Advocates, but to adjudicate the cases the better way possible the Family Courts Act bars the Advocates to represent the cases of parties. For instance while answering the query of someone in this thread : (https://www.lawyersclubindia.com/forum/Recording-conversations-59071.asp?1=1&offset=2) you have given the citations of SC with regard to admissibility of tape-recorded conversation. On the other hand, S.14 of Family Court Act says, A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. Here you can see the Family Court Act seems to opt for a less formal procedure. The family court will look into the dispute with an angle to resolve it and not with the technicalities of law. Though this Act does not speak it impliedly speaks of principles of natural justice. Even in the departmental inquiries made against employees in government, public sector and private sector evidence is not strictly in accordance with the provisions of Evidence Act, sometimes even hearsay evidence will be taken into confidence by court. So, as these proceedings are not strictly based on technicalities of law, the Family courts act rightly prevents Advocates to enter and make the dispute an issue of technicalities because the Advocates having possessed with legal knowledge would complicate the issue and make it into a issue involving legal technicalities. That is why you have wrongly quoted the SC judgment regarding admissibility of tape recorded conversation because you have a tendency to make it an issue of legal technicalities. That is why Advocates are rightly barred by the legislation to be party to these disputes. The judge can decide better if the parties appear before him rather than Advocates taking him for a ride with their abilities and skills.

However I do agree with your view that Advocates should not be barred absolutely without exceptions to represent. For instance, an illiterate woman cannot represent her case in a Family court. She cannot claim maintenance under relevant provisions. The court needs to have some record for which it needs to call up on some written documents from parties to case. Such documents cannot be written by ordinary people and illiterates because they have to be written keeping in view the rules and practices. And other exception is the Hindu Marriage Act provides for punishment for Bigamy and the Family court judge can award punishment for Bigamy under Hindu Marriage Act if it is proved. There when it involves punishment of some accused, the evidence needs to be conclusively proved and such cases cannot be adjudicated on equal footing with other cases which involve mere divorce, judicial separation, maintenance, alimony or RCR. Therefore where it involves adjudication with regard to punishing the under Section 17 of HMA, the advocates help is needed for parties facing charges.

There are not many instances of Family court matters not represented by Lawyers right from the first day. I am a party myself to the court, and the judge never ever looks at me but my Advocate.  How practice and principle are so vastly different in this country ? ;)    

There are several instances when the party claimed exemption from appearance after due vakalat to a competent lawyer in the family court.  How is this section 13 relevant and what purpose is it serving ?  Is there any sensitivity in the Family Court when the court summons can also be sent via police and assume such an action does not cause prejudice to the other party ?   Excepting probably the Crpc 125, the family courts are also as slow as any other civil court.  

Consider family court as just another type of court.   Yes most of the judges in family courts seem to be women, and most judgements seem to be gender biased not to say that men judges have not pronounced decrees in favor of women.  One salient feature of a family court may be that you are allowed to put any number of false and frivolour allegations on the spouse and still be considered a norm of a family court.   Aren't some lawyers encouraging such statements in the petitions ?  

Have seen very few advocates who would verify the verasity of a statement before actually typing it down into the form a petition, with due respects and kudo to the advocates who are honest.   Emotions run large in family matters, hence the money flow as well.  There are few advocates who really advise not to file a petition in the  court, but try reconcilation through elders first.  However there are many advocates who advise, let's file a petition and he would come down to compromize the minute after receving the summons, making the family court a forum for blackmailing the spouse.  

The stigma associated with a court may not be that high with a family court and hence people may freely prefer to go to these courts whenever it is necessary.   The motto of a family court may first to reconcile and save the marriage, but wonder how many marriages have these family courts really saved versus damaged which otherwise would have been saved ?   How many spouses would prefer to co-habitate with the person who is considered highly litigant and throws false and frivolous allegations ?

It would have been highly helpful if we created some sort family forums instead of family courts as a way of saving marriages.

Apologies if I have expressed anything wrong, as this is just my personal opinion and have malice against either the advocates or those who use the services of the family courts.  

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Apologies if I have expressed anything wrong, as this is just my personal opinion and have NO malice against either the advocates or those who use the services of the family courts.

Marriages are not saved by courts! It is a sham! Only money matters! I mean the money from husband to all others in the dhandha/ 'business'

Yes...........in the name of SAVING THE MARRIAGE, they drag the husband only unless he agrees to pay $$