When an Advocate was Denied to Appear Before a Court

Once I appeared before a Principal Judge at Family Court in Gurugram, Haryana, and witnessed a strange practice of hearing the parties on the issue of whether they should be allowed to be represented by an advocate or not. I wondered as to which provision of the law allowed the same and discovered to my amazement that Section 13 of the Family Courts Act, 1984 (hereinafter referred to as ‘the FCA’) provides that no party before a Family Court is entitled, as a matter of right, to be represented by a legal practitioner. I immediately recalled my law school days when I read that an advocate has a right to appear before courts throughout the country. I referred to the Advocates Act, 1961 (hereinafter referred to as ‘the AA’), and observed that Section 30 provides that every advocate is entitled, as of right, to practise in all courts including the Supreme Court. After analyzing both provisions, I noticed a huge contradiction and therefore decided to research further to understand how a law can debar an advocate from practising before a court of law.

Interestingly, Section 13 of the FCA contains a non-obstante clause that makes it prevail over any other law, including the AA, which is inconsistent with it, to the extent of such inconsistency. However, Section 30 of the AA does not contain any such non-obstante clause which makes it inferior to Section 13 of the FCA. It was crystal clear that Section 13 of the FCA would prevail over Section 30 of the AA thereby snatching away the right of the advocate to practise before a family court.

It is a well-established principle of interpretation of statutes that a non-obstante clause is operative against a law that is already in force and not against future laws. It means the non-obstante clause contained in Section 13 of the FCA shall only be operative against those laws that were in force when Section 13 was notified and in Haryana, all the provisions, including Section 13, of the FCA, were notified in 1992. However, several provisions of the AA were notified before 1992 on different dates but Section 30 of the AA was notified on 15th June 2011.

As a matter of fact, Section 30 of the AA was not in force when Section 13 of the FCA was notified, and therefore the bar contained under Section 13 of the FCA against the right of an advocate to practise before family courts would become redundant and the advocates may appear, as a matter of right, before any family court in Haryana by the virtue of Section 30 of the AA.

Comments

All Cases of Sexual Intercourse Based on a False Promise of Marriage NOT Covered under Section 69 of the BNS

Recently, a First Information Report (FIR) was registered against Yash Dayal, a Royal Challengers Bangalore (RCB) player, under Section 69 of the Bharatiya Nyaya Sanhita (BNS) for engaging in sexual intercourse on the false pretext of marriage. The complainant alleged that, relying on Yash Dayal’s false promise of marriage, she consented to sexual intercourse. Notably, the FIR was not registered under Section 64 (rape) of the BNS. This raises the question: Are all cases of sexual intercourse based on a false promise of marriage (vitiated consent) now exclusively covered under Section 69 of the BNS? Prior to the enactment of the BNS, sexual intercourse induced by a false promise of marriage was punishable under Section 376 of the Indian Penal Code (IPC) and classified as rape. This classification stemmed from Section 375 of the IPC, which defines rape as, inter alia, sexual intercourse with a woman without her consent, and Section 90, which states that consent given under a misconceptio...

Requirements for Criminal Liability under Sections 406 and 420 IPC

The Supreme Court of India’s judgment in Ashok Kumar Jain v. The State of Gujarat and Another (2025 INSC 614), delivered on May 1, 2025, is a significant exposition on the exercise of inherent powers under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), to quash a First Information Report (FIR) in cases where allegations of criminal breach of trust and cheating under Sections 406 and 420 of the Indian Penal Code (IPC) are deemed to be a misuse of criminal process for civil disputes. The judgment meticulously analyzes the alleged offenses' legal ingredients, the commercial transaction's factual matrix, and the documentary evidence, ultimately concluding that the FIR represents an abuse of the legal process. Factual Background The case arises from a commercial transaction between the appellant, Ashok Kumar Jain, a director of Maayu Import and Export Ltd., a Sri Lankan company, and the second respondent, a proprietor of Ansh Prints, a textile business in Surat, Gujara...

Advocates Vs. CAs/CSs/CMAs

This article deals with the exclusive right to practise law and tribunal representation and the principles relating to a Harmonious Construction of the Advocates Act, 1961 and the Companies Act, 2013 Introduction The ongoing controversy concerning the right of non-advocate professionals, namely Chartered Accountants(CAs), Company Secretaries(CSs), and Cost and Management Accountants(CMAs), to appear and argue matters before the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) raises fundamental questions touching the statutory monopoly over the practice of law in India. This post examines the competing statutory claims under the Advocates Act, 1961 and Section 432 of the Companies Act, 2013, applies the doctrine of harmonious construction, and concludes that Section 432 does not, and constitutionally cannot, confer any independent or parallel right to practise law upon non-advocates before tribunals. Background of the Dispute Recently, t...

Legally Sane

Search This Blog