Lawyer-Client relationships in divorce cases

This article has been written by Aditi Gupta. Aditi is currently a student in National Law School of India University, Bangalore.

The relationship between a lawyer and a client is one of the most significant parts of the legal process. It has to be a relationship of absolute trust and respect from both sides. In family disputes, especially divorce cases, the lawyer-client relationships are very sensitive.

Section 13 of The Family Courts Act, 1984 restricts the appearance of lawyers in the family courts, thus allowing the disputing parties to represent themselves in court. However, the major issue remains whether the participation of lawyers will be beneficial or detrimental to the case of the parties or take away from the decorum of the Court. However, the number of self-represented litigants or pro-se litigants in India is increasing every year and this provision favours the trend.

According to Sec. 13 of Family Courts Act[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 a right, to be represented by a legal practitioner.”

The Indian Courts have held that disputes of personal nature should be adjudicated themselves. In Leela Mahadeo v. Mahadeo Sitaram Joshi[2], the Court was of the opinion that the intention behind Section 13[3] was that it may be advisable to adjudicate matters related to matrimonial breakdown or family disputes as far as possible by restricting entry of lawyers in the courts and hearing the parties to the dispute themselves and by seeking assistance from counsellors due to the personal nature of such disputes.[4]

This provision of the Act gives rise to the question whether the participation of lawyers will be detrimental or useful to the performance and decorum of a family court. The Act prohibits the participation of lawyers in the family courts on behalf of their clients but it authorises the courts to appoint amicus curiae. The advocates argue that this provision deprives the people approaching the Courts of their constitutional right to engage a lawyer of their choice for arguing their case.[5]

However, the Act does not impose a complete ban on entry of lawyers in the Courts and prohibit representation by advocates before the Family Courts. The Act provides for hearing persons other than the parties to the dispute while hearing a case. Section 13 of the Act[6] allows the Family Courts to appoint amicus curiae and seek their assistance and Section 5 of the Act[7] also allows “the association of institutions or organizations engaged in welfare and persons working in the field of social welfare, or professionally engaged in promoting the welfare of the family”.  Therefore, it can be argued that if the Family Court hears anyone other than a party to the dispute, whether it be as amicus curiae or as a legal expert, it must extend this permission to lawyers and allow a party to be represented by a legal practitioner if the said party makes an application requesting the Court for the same.[8]

Though sometimes the participation of the lawyer is an obstacle in proper dispensing of justice, their assistance can sometimes serves a significant purpose. It has been often urged that Section 13[9] should be amended to provide for allowance of advocates to represent the parties if the court feels it to be required in a particular case or if the court is of the opinion that permitting it is necessary for ensuring justice and would facilitate looking into the facts and circumstances of the case.[10] It has also been suggested that an amendment to allow representation by lawyers subject to a proviso which authorises to the Court to terminate a lawyer’s vakalatnama if he employs “delaying tactics by unnecessary adjournments” be made. Such a proviso would ensure that the lawyers are not able to get adjournments and family disputes can be disposed of speedily.[11] The parties would be able to control their own destiny as well as have the comfort of knowing that they can bring in a lawyer if he or she so chooses or feels the need for one.[12]

Such amendments are being considered as self-representing litigants often have difficulty filling the required forms and filing them in the court. Such litigants employ provisions like temporary orders much less, frequently obtain less maintenance after divorces, have less access to tax advice and also utilize the options for alternative dispute resolution much less than those who engage the services of legal practitioners.[13]

Though the Advocates Act and the Bar Council of India Rules provides for a code of professional conduct for legal practitioners. India currently has no set of guidelines or rules laid down by the Court or under any legislation that would be specifically applicable to lawyers dealing with matters of family law such as marital disputes and other conflicts. However, laying down a specific code of ethics or duties to be followed by legal practitioner dealing with such matters and appearing before the Family Courts would allow simplified and proper conduct of lawyers in the Courts which would ensure that the interests of the clients are better represented and the decorum of the court is maintained.

Section 13 of the Family Courts Act prohibits the participation of lawyers in the family courts but does not completely exclude third parties to represent or assist the two disputing parties. Therefore, it has been suggested that limited entry of legal practitioners in the family courts could prove beneficial to the clients and their interests could be better represented.

[1] Section 13, The Family Courts Act, 1984.

[2] Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi, AIR 1991 Bom 105.

[3] Section 13, The Family Courts Act, 1984.

[4] Dr. D.K. Tiwari et al, Commentaries on The family courts Act, 1984, 123 (1997).

[5]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[6] Section 13, The Family Courts Act, 1984.

[7] Section 5, The Family Courts Act, 1984.

[8]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[9] Section 13, The Family Courts Act, 1984.

[10]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[11] Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[12]Austin Sarat et al, Law and Strategy in the Divorce Lawyer’s Office, 20, Law & Soc’y Review. 93, 94 (1986).

[13] Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 (3),  Family Law Quarterly, 421,449, (Fall 1994).

***

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