J&K HC issues notice to CS, seeks response on Family Courts

High Court issued notice to the Chief Secretary in a plea challenging the validity of Section 13 of the Family Courts Act which prevents the lawyers to appear before the designated court on behalf of the aggrieved parties. The petition has been filed by the 4 practising lawyers of High Court and district court seeking challenging of the section 13 of the Family Court Act as it stops them to appear before the Family Court which is designated under the Act to redress the inter-se issues between families.

Court has issued notice in the main petition as well as in the connected application and advocate Tahir Majid Shamsi, Assistant Solicitor General of India (ASGI), enters appearance and waives notice on behalf of Secretary Ministry of Law, Justice Department of Legal Affairs. Since none was present on behalf of CS, court directed that notice shall, now, go to him only. “…response by the next date of hearing”, Court directed.

The petitioners have challenged the validity of Section 13 of the Family Courts Act, 1984 being in violation of the mandate of Article 19(1)(g) of the Constitution of India and not saved under Article 9(6) of the Constitution of India.
They are seeking a direction to the effect of allowing them to represent the parties in the disputes covered under Section 7 of the Act of 1984 before the Family Courts so established under the Act of 1984.

Senior Counsel Z A Qurashi, representing the petitioner-advocates, submitted that Section 19(1)(g) gives right to the Petitioners to profess even while providing the legal services to the litigants who litigate before the Court including the Family Courts.

It is pleaded that Section 13 of the Act of 1984 prohibits the advocates to appear before the Family Courts by representing any of the litigating parties and that the restrictions imposed by Section 13 of the Act of 1984 is not only arbitrary, but also directly in violation of the interests of the litigants.

They pleaded that while considering the reasonableness of the restriction, the court has to keep in mind the directive principles of State policy and restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.

As per the Section 13 of the Act, the parties to the litigation before the family court are not entitled to be represented by a legal practitioner (advocate) but as per the proviso, the family court, if deem it necessary and in the interest of justice, can seek legal assistance by a legal expert.

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