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deep Sharma (Law Student)     30 April 2012

Is this called family court guidelines ??

Dear Peers,

Kindly share your thoughts & describe "Is a  lawyer can fight a litigation like (CRPC-125 or Custody etc) in the Family Court without take any permission from  Court.  As the secttion 13 of family court act says as under :

 

 

 

Section 13 of the Act is quoted below:

1.     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;

2.     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.

The Law Lexicon edited by Justice Y.V. Chandrachud describes 'amicus curiae' as a friend of the Court. It says that an amicus curiae is one to volunteer or on invitation of the Court instructs the Court on a matter of law concerning which the latter is doubtful or mistaken, or informs him on facts, a knowledge of which is necessary for a proper disposition of the case. Amicus curiae is one not being retained in a case volunteers to express his views or make suggestions for information of the Court. Chambers 21st Centuary Dictionary describes 'amicus curiae' as a person not directly involved in a cause but who gives advice about it and otherwise means, friend of the Court.

 3. Rule 9 of the Family Courts (Procedure) Rules below:

9. Permission for representation by a Lawyer. --

(a) The Court may permit the parties to be represented by a lawyer in Court. Such permission may be granted if the case involves complicated questions of law or fact, and if the court is of the view that the party in person will not be in a position to conduct his or her case adequately or for any other reasons. The reason for granting permission shall be recorded in the order. Permission so granted may be revoked by the Court at any stage of the proceedings if the Court considers it just and necessary.

(b) Time for making Application.-- An application by a party for being represented by a lawyer in court shall be made by such party to the Court after notice to the other side. Such an application shall be made not less than two weeks prior to the date fixed for hearing of the petition.

(c) Application not to be entertained at the hearing. -- An application shall not be entertained after the petition is placed for hearing on the daily board of the Court, unless there are exceptional circumstances justifying such late application.

 4. Rule 9 of the Family Courts (Procedure) Rules which insists that such permission can be given only on application.

 5.  There cannot be any doubt in mind that an amicus curiae appointed by the Judge, Family Court, under the proviso to Section 13 of the Act is only a friend of the Court and is required to assist the Court in matters of fact and law as and when required by the Court and cannot act as a lawyer/advocate engaged by a party to defend cases. In other words, an amicus curiae cannot do all such acts as usually done by an Advocate retained by a party in a judicial proceeding and his role is limited to rendering assistance to the Court in matters of facts and law whenever required by the Court.

 6. In fact, Rule 37 of the Family Courts (Court) Rules, 1988 reads as follows:

37. Permission for Representation by a Lawyer: The Court may permit the parties to be represented by a lawyer in Court. Such permission may be granted if the case involves complicated questions of law or fact, if the Court is of the view that the party in person will not be in a position to conduct his or her case adequately or for any other reasons. The reasons for granting permission shall be recorded in the order. Permission so granted may be revoked by the Court at any stage of the proceedings if the Court considers it just and necessary. Made for legal representation and in the absence of convincing reasons, such permission ought not to be turned down.

  7. Submitted that role of an Amicus curiae is limited and he/she cannot act as an Advocate retained by a party. It was contended by Sri Mohanty that Section 13 of the Act puts an absolute bar on engagement of an advocate by a party and proviso to the said provision only empowers the Court to take help of an Amicus curiae if he so desires. Learned Counsel also referred to a decision and submitted that the role of the Amicus Curiae cannot be equated with that of an Advocate retained by a party to conduct case on his behalf and therefore an Amicus curiae has no authority to cross-examine any witness examined by the adversary.

Also consider this JM

HIGH COURT OF DELHI, NEW DELHI No. 19/Rules/ DHC  Dated: 09.02.2010  PRACTICE DIRECTION

Hon’ble the Chief Justice has been pleased to issue the following practice directions:

“Section 13 of the Family Courts Act, 1984 does not absolutely bar the   appearance   of the  Advocates      before     the   Family     Courts.     Family Courts,   therefore,   in   the   absence   of  convincing   and   cogent   reasons should not turn down the permission of the litigants of legal assistance when they desire it.”

 Regds,,,,,,,,,

DS



Learning

 4 Replies

Tajobsindia (Senior Partner )     01 May 2012

@ Author


Kindly donot bar Advocates from practicing in Family Courts with bare copy pasting above ‘considerations which  now are redundant’[see reasoning] which got established from time to time pan
India
under Family Court Act, 1984 ! Afterall Lawyers also need bread and butter and so do thousands of needy clients in Family Courts (under Family Court Act, 1984) needing legal assistance / pleaders there !!
Reasoning on our above dharma:
In view of the Central Government notification of S. 30 of Advocates Act, 1961, the above section(s) of Family Courts Act, 1984 has become redundant.


S. 30 of Advocates Act
gives lawyers the right to practice in any Court, before any Tribunal, or Quasi Judicial Authority all over India.The section also gives the liberty to lawyers to practice in all courts within the country irrespective of the Bar Council they have initially enrolled. In addition to granting higher mobility to advocates the newly notified law also saves the lawyers from having to transfer their Bar licence to the State where they are practising. The order notifying the change in laws regarding right of lawyers came in June last year after years of continued demand from lawyers all over the country. Even though the Hon’ble Supreme Court ruled in 1998 that lawyers should be given the right to practise anywhere and directed the Government to take steps towards achieving that the Government abstained from issuing a notification until this just almosty a year ago.


Hope now your layman’s doubt have been clarified once for all ?
Reasoning specially on above last words:
That’s why lawyers can never become obselete in any Court of Law (BTW we both ever truely need each other before any Hon'ble Bench)
J

 

1 Like

deep Sharma (Law Student)     04 May 2012

 

Thnkx for remind me that i m a layman.

 

But still i m think that the appearance of a lawyer without any court permission in a family court is a violation of law.  Also i m looking for more replies on this matter I m amaze that still one reply came for my query.

regds..

DS

Shantanu Wavhal (Worker)     05 May 2012

ur query is rightly answered by ld. Tajobsindia sir.

Vishwa Bhushan Arya (Service)     10 June 2015

In my opinion, section 30 of the Act cannot be read in isolation.  It has to be read while giving meaning and effect to section 13 of the Family Court Act.  Applying the principle of harmonius construction, so as to give breath to both the provisions, the permission of the principal judge is mandatory.


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