Madras High Court: In a writ petition seeking writ of declaration, declaring Section 13 of the Family Courts Act, 1984 as unconstitutional, the division bench of S.M. Subramaniam* and K. Rajasekar, JJ. while affirming the principles laid down in Paradip Port Trust, Paradip v. Their Workmen, (1977) 2 SCC 339, reiterated 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. Thus, the Court upheld the constitutionality of Section 13 of the Family Courts Act.
The petitioner contended that Section 13 of the Family Courts Act infringes upon the fundamental right to practice in courts, as guaranteed under the provisions of the Advocates Act, 1961. The petitioner argued that the right of a legal practitioner to practice is an absolute right under the Advocates Act, and therefore, any prohibition in this regard would be unsustainable. In support of this contention, the petitioner submitted that in the absence of legal representation, litigants in Family Courts are facing significant difficulties in defending their cases. Consequently, it was argued that Section 13, which restricts the right of legal practitioners to appear in Family Courts, infringes upon this fundamental right and should, therefore, be declared unconstitutional.
Per contra, the Union of India contended that the Family Courts 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 these judgments be followed to maintain consistency in the implementation of the Central Act. It was further argued that there is no absolute prohibition on legal representation, as Section 13, when read in conjunction with the Family Courts (Procedure) Rules, 1996 permits representation by a lawyer in deserving cases. Therefore, contrary to the petitioner’s claim, there is no blanket prohibition, and the Family Courts have the discretion to allow legal representation in appropriate circumstances.
The Court took note of Lata v. Union of India, 1993 SCC OnLine Bom 7, wherein the Court tested the validity of Section 13 of the Family Courts Act, 1984, and following the judgment of the Supreme Court in Paradip Port trust case( supra), held 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. Further, the Supreme Court has recognised only fundamental right under Constitution to be represented by a lawyer is under Article 22(1) of the Constitution.
The Court further noted that the petitioner had raised the issue that Section 13 of the Family Courts Act is discriminatory, as litigants outside the jurisdiction of the Family Courts are permitted to be represented by lawyers, particularly in the Sub Courts in Taluk and other areas of the State. The Court observed that this argument of discrimination had already been considered by the Bombay High Court and was found to be without merit. The Court reasoned that once it is established that the classification made by Section 13(1)(a) of the Family Courts Act is a reasonable classification, the same reasoning should apply to Section 13. It was further emphasized that Section 13 does not create an absolute bar on legal representation. Instead, it allows parties to make an application to the Family Court under the Family Courts (Procedure) Rules, as notified by the respective High Courts, to seek permission for legal representation in appropriate cases.
The Court took note of the judgments of the Bombay High Court, Rajasthan High Court, and Allahabad High Court, where the Courts had upheld the validity of Section 13 of the Family Courts Act, ruling that it does not offend Article 22(1) of the Constitution.
The Court further referred to Thyssen Krupp Industries India (P) Ltd. v. Suresh Maruti Chougule, 2023 SCC OnLine SC 1707, wherein a similar provision under the Industrial Disputes Act was considered. The Bench has settled the legal principles regarding absolute right to practice law in Courts, Tribunals etc. In this case, the Supreme Court while agreeing with Paradip Port Trust case (supra), held that the matter is not to be reviewed from the point of view of the legal practitioner but from the aspect of the employer and workmen who are the principal contestants in an industrial dispute, which was taken into consideration in Paradip Port Trust case.
The Court noted that in the present case, the primary stakeholders are the husband and wife, along with their children or relatives. Given this, the principles established in the Paradip Port Trust case (supra) would be more appropriate, and there is no scope for adopting a different view.
In light of the aforesaid settled legal principles, the Court concluded that no further adjudication regarding the grounds raised by the petitioner would be necessary.
[Vijaya Vaishnavi Sriram v. Union of India, Writ Petition No. 33465 of 2024, decided on 05-03-2025]
*Order by: Justice S.M.Subramaniam
Advocates who appeared in this case :
For Petitioner: Mr. Mahesh Kumar.S
For Respondents: Mr. AR.L. Sundaresan, Additional Solicitor General of India, Mr.R.Rajesh Vivekananthan Deputy Solicitor General of India, Mr. G. Ameedius, Government Advocate, Mr. S. Vinod