Section 13 in The Family Courts Act, 1984

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 of right, to be represented by a legal
practitioner: -Notwithstanding anything 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.
COMMENT

Section 13 of the Act provides that the party in a suit or proceedings before a family court has no
right to engage an advocate to represent on his behalf. However, the court can seek help or
assistance of legal expert as amicus curiae (a friend of the court). His duty would be assisting the
court. The court shall allow a legal practitioner on either side to appear only as amicus curiae, if
it finds necessary in the interest of justice. Thus the court has a discretionary power to allow
advocate or not to represent on behalf of a party.

To grant permission to a party to be represented by a legal practitioner the court shall maintain a
panel of legal experts as amicus curiae consisting five members out of legal experts and also
from the retired judges of local area, who have expertise in the field. The amicus curiae shall be
paid a fee by the State Governments in a case which may be determined by the court not
exceeding Rs.500/- per day.

Where a party has no means to engage an advocate shall be entitled to free legal aid and advice
from the State Legal Services Authority in accordance with the rules made there under by the
State .1 For that Family Court shall maintain a panel of lawyers willing to render free legal aid
and advice and the Court select any of the lawyers from the said panel to the poor persons to
attend their cases .2

This section prescribes that the court should grant permission to the parties to engage the legal
practitioner on their behalf in the court of law. Whether to grant the permission to the parties or

1
Rule 16 explanation (3) H.C. of A.P. Family Courts (Court) Rules, 2005.
2
Rule 16 explanation (4) H.C. of A.P. Family Courts (Court) Rules, 2005.
not to grant is based on the discretion of the court. Hence, they can revoke the permission
granted to them at any stage of the proceedings.

Where one party is allowed to have a legal representative, the other party should also be
permitted to have a legal representative. Where one party is allowed and the other party is not
allowed to have a legal practioner, then it amounts to improper exercise of jurisdiction.

Sarla Sharma v State of Rajasthan , AIR 1995 SC 1867

In this landmark judgement the court has distinguished between ‘amicus curie’ and the advocate
in the court. That the advocate is the one who represents the party in the court of law and the
amicus curie is the friend of the court and he is the person who provides the necessary
information to the court.

S. Venkataraman v. L. Vijayasarathan (1997) 1 DMC 507 (Mad)

In this case it was held that ,In every court a legal practitioner has a right to appear on behalf of
his client, the said right cannot be claimed before the family court, it is totally left to the
discretion of the Family Court to allow any Counsel on behalf of the client and give necessary
legal assistance. So, if any of the parties before the Family Court filed a memo or petition
seeking permission of the Court for him or her to engage a counsel and have legal assistance, the
Family Court, may or may not allow the petition. When so allowed, the Counsel of a party could
file the Vakalat and do all that is necessary for the client in conduction the case .

Gurubachan Kaur Vs. Preetam Singh, AIR 1998, All. 140

The Division Bench of Allahabad High Court held that “Family Courts if grant opportunity to
the parties to be presented by lawyers and it comes to the conclusion that some obstruction is
being caused by non-availability of lawyers or otherwise. If some problems come to its notice,
the Family Courts can immediately cancel the “Vakalatnama”, and obey the mandate of
legislature rather than prolonging the agony and waiting period of matrimonial disputes. The
time spent cannot be regained or recalled and youth cannot be restored. So the Court should also
keep in mind also the settlement of the parties by negotiation”
Shambhu Dutt Shastri v. State of Rajasthan : AIR 1998 Raj. 185,

It was held that the word 'act' under Order 3 Rule 2, C.P.C. Does not include the act of power of
attorney holder to appear as witnesses on behalf of the party. It was further held that the power of
attorney holder can appear only as a witness on behalf of the party in the capacity of that party. It
was further observed that even if the plaintiff is not able to appear before the Court, the plaintiff
is not left in the lurch. There is a provision for appointment of Commissioner for reording
evidence under C.P.C.

Pavithra rep. By P.O.A. S. Rajkumar Kalingarayar v. Rahul Raj, 2003 (1) MLJ 182

The Court has observed that there is no embargo for a person interested to defend a party in the
matrimonial case before the Family Court and the appearance of the party can arise only at the
time of particular stage of the case. The operative portion of the judgment goes thus:

14.Order 3, Rule 1 of C.P.C. Empowers a party in a suit or proceedings to be represented by a

pleader, but so far as the proceedings in the Family Courts are concerned, the right of
representation by the pleader does not exist. The operation of Order 3, Rule 1 is subject to any
law for the time being in force. In addition to the said exclusion in the code, Section 13
of Family Courts Act prohibits the operation of Order 3, Rule 1 to the extent that the case being
represented by the legal practitioner. The recognised agent appointed under Order 3, Rule 2
stands on a different footing from pleader. However, recognised agent cannot be a legal
practitioner. The embargo on the appearance of legal practitioners should not be extended to
recognised agent. There is no prohibition in the Act or Rules to a petition being filed by an
authorised agent who is not legal practitioner. The recognised agent can prosecute or defend or
represent until Family Court passes specific order directing the party to appear in person,
depending upon the facts and stage of the case.

Dr. K. Malathi v. Dr. S. Rajasekaran, 2003 (2) CTC 166

It has been observed that since the appearance of legal practitioner before the Family Court is
barred by statute, there is no stumbling block for the Court to permit any person to represent a
party in a matrimonial matter. The following is the relevant portion of the judgment
10. It is calear that in the light of Section 13 of Family Courts Act, Order 3, Rule 1
of Section 132, CPC, no party to the Family Court seek dispensation once for all, to avoid
personal appearance and claim to have the adjudication through a recognised agent on account of
the peculiar provisions of law governing the adjudication in the Family Court. Undoubtedly,
from the stage of hearing, after the appearance of the either side to the proceedings, considering
the peculiar and sensitive nature of the lis, personal feeling, behavioral attitudes to be assessed
by the Court, it is, but proper that appearance of the parties become necessary. To put it clear that
though the parties are at liberty to present through an authorised agent other than the legal
practitioner as contemplated under Order 3, Rule 1 CPC, at the stage of examination/hearing, it is
for them to appear in person.