Section 13 of the Family Courts Act, 1984 is constitutional and does not provide an absolute right to legal representation, allowing for reasonable restrictions.

ORDER :

1. The present writ of declaration has been instituted to declare Section 13 of the Family Courts Act, 1984 as unconstitutional.

2. The learned counsel for petitioner would mainly contend that the provision infringes the right to practice in Courts contemplated under the provisions of the Advocates Act, 1961. Right of a legal practitioner is an absolute right under the Advocates Act and therefore any prohibition in this regard is unsustainable. In support of the said contention, the learned counsel for petitioner would submit that in the absence of lawyers, the litigants in the Family Courts are finding it difficult to defend their cases and thus Section 13 infringing the right of legal practitioners is liable to be declared as unconstitutional.

3. Mr. A.R.L. Sundaresan, learned Additional Solicitor General of India appearing on behalf of Union of India would strenuously oppose by stating that the validity of Section 13 of the Family Courts Act is no more res integra. The Act is a Central Act and since the validity of the said provision has been upheld by the Bombay High Court and two other High Courts, judicial discipline requires that the said judgments are to be followed in order to avoid any inconsistency in implementing the Central Act. It is contended that there is no absolute prohibition, since Section 13 read with the Family Courts (Procedure) Rules, 1996 notified by the High Court of Madras, more specifically, Rule 41 provides permission for representation by a lawyer. Therefore, there is no absolute prohibition as contended by the petitioner. Permission is granted in deserving cases and the Family Courts are empowered to withdraw the permission wherever necessary. Thus the writ on hand is devoid of merits.

4. In view of the judgments of Bombay High Court, Rajasthan High Court and Allahabad High Court, it would be suffice if the principles laid down by these High Courts are extracted for adopting the legal principles. A Division Bench of the Bombay High Court in the case of Lata D/o Baburao Pimple v. Union of India and others, 1993 Mh. L.J. 673 tested the validity of Section 13 of the Family Courts Act, 1984. The findings of the Division Bench of Bombay High Court are extracted hereunder:-

“17. Mr. Agarwal, learned Counsel appearing for the Union of India urged that Section 13 does not prohibit the party from availing services of the lawyer. Such permission can be granted on an application if made by a party and if the Court comes to the conclusion that it is necessary to do so. He however, urged that there is no fundamental right to a citizen/litigant to appear through a lawyer save and except in case of Art.22(1) of the Constitution of India. In support of this submission, he relied upon the decision of the Supreme Court in Paradip Port Trust v. Their Workmen. While construing S.36(4) of the Industrial Disputes Act, the Supreme Court held as under (at page 44) :-

"We have given our anxious consideration to the above submission. It is true that "and" in a particular context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the legislature. However, having regard to the history of the present legislation, recognition of law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in S. 36(4) can be read as "or".

This ratio, therefore, indicates that no party can claim as a matter of right, a right to be represented through lawyer. It is open to the legislature to put restrictions on such representation by legal practitioner, having regard to the aims and object of the Act. On an identical issue the Supreme Court in Lingappa Pochanna v. State of Maharashtra, reiterate the same principle. It was a case under the Maharashtra Restoration of Lands to Scheduled