Q. I got married in 2009 and my husband is keeping me away since last 3 years without any reason. I want to file petition in RCR OF HINDU MARRIAGE ACT in family court. Pls let me know as per act, i should file it directly or though an advocate as i read that any application in family court has to be filed directly and if you require an advocate for this, special permission has to be taken from family court.
A. It was true that there was bar on Advocates to appear before Family Courts and parties could be represented by their Advocates only upon obtaining permission from the Family Courts. Section 13 of the Family Courts Act states clearly that parties not entitled to be represented by their Advocates as a matter of right before Family Court, however, a provision to the Section 13 states that Family Court if it finds necessary may appoint legal expert as Amicus curiae for assistance. Also, under Rule 9 of Family Court (Procedure) Rules, Family Court may permit the parties to be represented by their Advocates if the case involves complex issues of fact or law, or if the party is not in a condition to attend the court in person for any reasons. Court may grant permission to the parties to be appeared by their Advocate, upon recording the reasons. Therefore, Section 13 not totally barred the representation of Advocates. Contrary to this provision, Section 30 of the Advocates Act, 1961 entitles the Advocates who are enrolled in the State roll as their right to do practice before all courts including Supreme Court, before Tribunals or before any authority. This issue was raised in C. Mathai & Another Versus District and Sessions Judge reported in AIR 1999 SC 1385, wherein the Hon’ble Supreme Court held that “Section 30 of the Advocates Act confers a right on every Advocate whose name is entered in the roll of the Advocates maintained by a state Bar Council to practice in all the Courts in India including the Supreme Court… Bar is one of the main wings of the system of justice. An Advocate is the officer of the Court and is hence accountable to the Court. In another case, C.P.Saji Vs. Union of India in WP C No. 18334 / 2011 reported in AIR 2012 Kerala 23, held that “litigant is open for any lawyer of his choice to appoint him before the Family Court.”
In view of the above stated judgments, the Central Government given effect to Section 30 of the Avocates Act, 1961 vide its Gazette Notification dated 09-06-2011. Therefore, it is clear that parties of the Family Court are entitled to appoint an advocate to present their case before Family Court.
From the above discussion, it is clear that you can file the RCR application with Family Court with the assistance of your lawyer. Permission of Family Court is not required.
By Anitha Gutti