Representaion of party by Legal Practitioner in Family Courts

The Law commission in its 59th report (1974 ) stressed that in dealing with disputes concerning the family court ought to adopt an approach redically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of trial.

The Code of civil Procedures was amended accordingly in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family, but even after amendment the courts does not succeeded to promote conciliatory procedure. Thus the need was therefore felt in the public interest to establish FAMILY COURTS for speedy settlement of family disputes. Keeping in view the above object the following provisions are incorporated in FAMILY COURTS ACT 1984 :-

Section - 9 - DUTY OF FAMILY COURTS TO MAKE EFFORTS FOR SETTLEMENT - (i) In every suit or proceeding endeavour shall be made by the family courts in the first instance , where it is possible to do so consistant with nature and circumstances of the case , to assist and persuade, the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a family court may subject to any rule made by the High Court follow such procedure as it may deem fit.

(2) If in any suit or proceeding at any stage , a reasonable possibility of a settlement between the parties , the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The powers conferred by sub section (2) shall be in addition to and not in derrogation of any other power by the family courts to adjourn the proceedings

Section - 13 - RIGHT TO LEGALREPRESENTATION - Notwithstanding any thing contained in any law , no party to a suit or proceeding before a Family Court shall be entitled as of right to be represented by a legal practitioner.

Provided that if the Family Court considers it necessary in the interest of justice it may seek the assistance of a legal expert as AMICUS CURIAE.

To explan the term AMICUS CURUAE the following provisions incorporated in the RULES by various High Courtsmay be reffered :-

THE UTTAR PRADESH FAMILY COURT RULES 1995 –

Rule 24 - If the Family Court considers it necessary in the interest of justice it may seek the assistance of legal expert as Amicus Curiae on purely legal issue, for that purpose the Family Court shall prepare a list of legal experts who are willing to assist it as amicus curiae and legal expert. They shall be paid fees and expenses out of the revenues of the government as per the scale of fees and expenses prevelant in the court of District Judge.

It is worth to remember here that in the same section 13 two words are used to explain legal person hence it can not be the intention of Legislature to include the 'legal practitioner' in word 'legal expert' in the same section.

It is further clarified in last term of proviso that assistance of legal expert may be utilized by family court .Parties are not mentioned therein.More over it is also made clear in the rule 24 that legal expert be appointed by court and not by party.

As regards the entitlement to legal advice by the party High Court of Calcutta frameed rules in 1990 as below :-

Rule -3 - PARTY ENTITLED TO LEGAL ADVICE - A party will be entitled to take legal advice at any stage of the proceedings either before counsellor or before the Court. A party in indigenious circumstances will be entitled to free legal aid and advice.

THE FAMILY COURT( RAJASTHAN ) RULES 19991 –

Rule -7 - (i)  The judge if he deems necessary may appoint any legal expert as amicus curiae in a case.

(2) The amicus curiae shall be paid by the State Government in a case or proceedings a fee which is determined by the State Government from time to time,

THE MAHARASHTRA FAMILY COURT ERULES 1987 –

Rule -4 - PARTY ENTITLED TO LEGAL ADVICE - A party will be entitled to free advice at any stage of the proceedings either before the councellor or before the court, A party in indegenious circumstances will be entitled to free legal aid and advice.

THE AFORESAID PROVISIONS AS LAID DOWN IN FAMILY COURT ACT 1984 AND RULES FRAMED BY VARIOUS HIGH COURTS ARE INDICATIVE THAT WORD LEGAL EXPERT OR AMICUS CURIAE DOES NOT INCLUDE PROFESSIONAL LEGAL PRACTITIONER.

Thus the intention of Legislature is clear enough to exclude the professional legal practitioners in the working of Family Courts.

More over if the legal practitioners are interested and willing to assist the Family Court and desires to involve in social welfare they must change their attitude and conduct in such a manner that there engagement does not hamper the progress of conciliation or disposal of dispute merely on the false pretex of being busy in other civil court or magistrate or on the ground of not preparing the case for some reason or the other.

THE AIM TO EXPEDITE PROCEEDING IS THAT THE PARTY BEFORE THE FAMILY COURT ARE NOT LITIGATING FOR PRESTIGOUS CLAIM BUT UNDER THE COMPELLING ADVERSE CIRCUMSTANCES OF BROKEN RELATIONSHIP  WITH THEIR NEAR AND DEAR FAMILY MEMBERS AND LOOKING FOR THE ASSISTANCE OF COURT FOR WELFARE OF AGGRIEVED WIFE OR HUSBAND , CHILDREN OR PARENTS AS THE CASE MAY BE.. IF THEY ARE NOT PROVIDED IMMEDIATE RELIEF THE PURPOSE OF ESTABLISHING FAMILY COURT WILL FAIL.

It is also worth to be remembered that society is the union of families thus a peaceful and prosperous society can not survive if the institution of family broken.