Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Samitha Prabha (Advocate )     04 March 2010

Appearance of Party in person - Divorce Case

Can any one suggest me regarding the following plz ...

I have a Friend who is an Advocate herself, but working with a Private Company.  She has filed a Divorce petition (under cruelty grounds) (the marriage took place during Feb 2009). on October 2009 (IA Petition seeking permission to apply for divorce before 1 yr of marriage was filed along with the main divorce petition) She has been living with her parents since 8 months now. All though she has engaged Advocate. Is it possible for her to appear in person with or witout her Advocate along with her. Both parties are not intertested in Living together. She is a Member of bar counsil, but has not been for any litigation till date. her husban seems to tell that she has taken his jewels from her matrimonal home, and claims compensation. He is in a putting forth a Condition that if she gives him money he shall give mutual consent. 


Can this be delt under Dowry Prohibition Act


Is it necessary for her to resign her job to appear as party in person in the court of law or can she wear the Advocates uniform n appear with out resigning her job..

Else how can this situation be delt

pls advise

 

Regards

Smitha



Learning

 17 Replies

jibak (Advocate)     04 March 2010

She is working in  a private firm and therefore she can not  appear as a advocate.  But she can appear in person.  Alternate  she can appoint Advocate. She is not required to resign from her job.

This is the case of divore under Hindu marriage Act.


(Guest)

If she is confident enough, she can appear in person. 

If she engages an advocate, the main responsibility is on the advocate.  It depends upon the judge whether to allow the party in person to present the arguments in the court, if she has already engaged the advocate and he is present in the court.  But some judges would not deal these things very seriously and allow the party to say whatever she wants in the interest of justice.  That depends from judge to judge.

Please do not say that she is a member in bar council and she is doing private job with out seeking suspension from bar council.  If a person is not practising and still a bar council member, she should inform the bar council and get her membership suspended (even though this rule is not strictly practiced.)

It is sheer black-mail on the part of the husband to ask jewellery or money to give consent for divorce.  It is most important to find out the history of the jewellery.  Who purchased it?  For what purpose, it was purchased?  It does not require huge brains to deduce that the jewellery was purchased for  "decorating" the boy.  I suppose, even though, it was purchased by parents of the boy at or about the time of marriage,only for the sake of girl, it is "stri-dhan" and she is entitled to have them.  If she is already having them, it is o.k.  Otherwise, she claim them.   


(Guest)

A correction is required.

Please read 5th line from bottom "require huge brains to deduce that the jewellery was not purchased for  "decorating"

Samitha Prabha (Advocate )     04 March 2010

Thanks for ur replies

Yes, those jewels mentioned herein were purchased by the boy's parents for the girl. 

I guess there is no restriction in the Bar Council to work in Private organisations (it only restricts from working in/ with Govt / Govt Enterprises) plz clarify

How long would this case go on .. 

The boy's family is ready to get him married soon after this divorce, so they are in hurry for the divorce but still are troubling her for case or kind...

Thanks 

Smitha

 


(Guest)

I reiterate what I said about bar council.

If the boy is interested to go for another marriage, either tomorrow or day after tomorrow will come for a compromise and accept for mutual consent divorce.  If so, mutual consent would take about 7 months.  The regular case, cannot be said, in how many months / years would be taken to come to final decision.  Depends from place to place and from fact to fact. 

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     04 March 2010

Ms. prabha, It is within the cpc that a person has always a right to appear in person.  appearing in person means,the person himself/herself  is the petitioner. this provision is also in crpc. when your friend is llb,- either practising or non pratising, she must know this rule. no special permission required by the judge for it. if the judge ask - where is your advocate? pl ans that - she is petioner in person. that is enough for a judge for allowing one to appear in person. the court has the right to check whether the person is really a petitioner in person or not. for that purpose they check the signature. that's enough. i, myself appear in person for my own case several times. once a high court judge told me that  he will not allow mw to appear in person, in reply to that i told that - sir, i am not asking for the permission; am informing you that i am appearing in person.

as it is within the cpc therefore no further permission is required.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     04 March 2010

please read me in place of mw


(Guest)

This is Ms. Prabha's precise question:

All though she has engaged Advocate. Is it possible for her to appear in person with or witout her Advocate along with her.

Mr. Gupta, answer for that question instead of beating the bush.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     04 March 2010

as you described, it is stridhan.

yes, you have to file a petition u/s 14 of hma seeking permission for divorce, before one year. please explain - extrem hardship of you that ith base of sec 14.

asking money for mutual divorce do not come under dowery prohibition case directly, wait for a while, he will offer  for mutual divorce, if he has hurry to marry.

no. no need  to resign from the job.

reg bar council membership, you are right ms. prabha. the condition is she will not be engaged for a full time job.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     04 March 2010

All though she has engaged Advocate. Is it possible for her to appear in person with or witout her Advocate along with her.

yes mr prabhakar, she has full right to appear in person. but if she keeps an advocate then the judge will accept (treated) the advocate as hier representative. she may present at the court and hear / witness all the procedings.

but if she wants to appear in person , she has to remove the advocate before appearing in person.

a person has always a right to appear in person, even after engaging an advocate.

Samitha Prabha (Advocate )     04 March 2010

Thanks for u Prompt reply.. 

 

What would happen to the Membership wit the Bar Council if she so appears for none other than herslf n continues with her job ( i guess the rule says that one cannot earn for 2 professions at a time) here in this case this girl is not going to earn any thing from this case and there after she is not going to pursue her career as an Advocate. 

Thanks 

Smitha

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     04 March 2010

no effect on her membership of bar council, if she appears as petitioner in person. she has the liberty to practice or not.


(Guest)

A bar council member is not entitled to do any other job (either government or private) except to practise law.  There are certain exceptions, being legal advisor, law profession, jurist etc.  For that also, at the time of enrolment, special mention is made.  Once, after becoming bar council member, if he joins some other job (either government or private), he has to inform the bar council and bar council will suspend his membership during his avocation in some other field (do not take the word "suspension" as punitive).

 With reference to appearing in court, she is appearing only as party in person.  Incidentally she is an advocate.  A person, who is in any profession including advocacy can appear in his own case as party in person.

But the real difficulty is that she is advocate and if she engages an advocate and while the advocate is presenting the case (not mere appearance, but presenting the case, i.e., taking evidence, arguing on the applications and final arguments etc.), the judge may refuse to hear the party in person on the ground that she has already engaged an advocate.  But some judges hear the advocate as well as party in person, in the interest of justice and without giving so much importance to technicalities.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     04 March 2010

mr prabhakar, reg bar council membership you may be right , i am not very sure, but i know few advocates who works in other profession also, including journalism; lic agent; also engaged in his own business which look after by him, i think it is not hard and fast.

reg petitioner in person, you are trying to creat confusion. question of allowing a person as petitioner in person does not arise. as it is already permitted by the perliament of india, through cpc. being an advocate you must know it .

no confusion in this matter.


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