Wife or husband's attorney cannot appear in family courts : Bombay HC

In a significant order, the Bombay high court has held that persons holding power of attorney cannot appear or argue for wife or husband in a matrimonial dispute in family court.

"If constituted attorneys of the parties are allowed to appear, the court would be overrun by any number of unqualified, unenrolled persons", justice Roshan Dalvi ruled. 

The order was passed last week on a petition filed by Neelam Shewale challenging a family court ruling which refused her plea to be represented by a constituted attorney.

The petitioner pleaded that she may be allowed to be represented by her constituted attorney as she is ill, does not know English, has been mentally tortured at the hands of husband and would not be able to stand the court proceeding.

The family court had also rejected an application filed by her attorney seeking permission to represent the wife as she cannot financially afford a lawyer. It was argued that in family courts, lawyers are normally not permitted and that she would be entitled to help of a person she has faith in.

Under Section 13 of Family Courts Act, no party is entitled as a matter of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has right to appear before the Family Court. No one can object to such appearance.

In this case, the wife did not desire to have an advocate. She had even refused legal aid offered to her and said she had faith only in her attorney.

The court observed that the object of Section 13 of Family Courts Act is to allow a party to represent her/his case and consequently right of lawyer to plead and appear in Court is limited but the right given to the party to appear is not extended to that party’s constituted attorney.

Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court, justice Dalvi ruled.

The object of that provision is that only qualified persons are entitled to appear in courts and represent the case of their parties. The qualification is of the knowledge of the law and the enrollment under the Act, the judge noted.

"If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good," justice Dalvi observed.

"Consequently both the orders of the Family Court disallowing constituted attorney to appear for the wife are correct and cannot be interfered with," the judge noted and dismissed the petition filed by the wife challenging the impugned orders.