IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR...

IN THE HIGH COURT OF JUDICATURE FOR

RAJASTHAN, JAIPUR BENCH, JAIPUR.

D.B. CIVIL WRIT (PIL) PETITION NO. ______OF 2019.

Ashish Davessar.

VERSUS

Union of India & Ors.

INDEX

S.NO PARTICULARS. PAGE NOS.

1. Synopsis & List of Dates and Events. A-B

2. Memo of D.B. Civil Writ (PIL) Petition under Article 226 of the Constitution of India.

1-42

3. Affidavit in support of the Writ Petition. 43-44

4. D.B. Civil Miscellaneous Stay Application. 45-48

5. Affidavit in support of Stay Application. 49-50

6. ANNEXURE P-1. True copy of The Family Courts Act, 1984.

51-58

7. ANNEXURE P-2. True copy of the Notification dated 9.6.2011 passed by the Ministry of Law and Justice bringing Section 30 of the Advocates Act, 1961 into force w.e.f. 15.6.2011.

59

8. ANNEXURE P-3. True copy of the judgment and order dated 28.5.2014 passed by the Hon’ble High Court of Punjab and Haryana at Chandigarh in the case of Paramjit Kumar Saroya V/s Union of India and Another in CWP No.7282 of 2010.

60-102

9. Affidavit in support of documents. 103-104

PLACE: JAIPUR (ASHISH DAVESSAR)

DATED: 15.4.2019 (Petitioner in Person)

Bar & Bench (www.barandbench.com)




Ashish Davessar.

VERSUS


SYNOPSIS

The Parliament in the year 1961 passed the Advocates Act,

1961 in order to amend and consolidate the law relating to

legal practitioners and to provide for the constitution of

the Bar Councils and an All-India Bar. However, Section

30 of the said Act did not come in force till 2011. The

Parliament in 1984 passed The Family Courts Act, 1984.

The said Act came into force w.e.f. 19.11.1985 in the state

of Rajasthan. A plain reading of the said Act would

demonstrate that Parliament has travelled far beyond the

aspect of marital disputes as jurisdiction has also been

vested in the Family Courts to adjudicate proprietary

rights arising out of marriage. That vide Section 13 of The


Family Courts Act, 1984 the fundamental right to practice

any profession for an advocate in form of making legal

representation has been specifically been denied. That

thereafter the Ministry of Law and Justice passed a

notification dated 9.6.2011 in terms whereof Section 30 of

the Advocates Act, 1961 was brought into force w.e.f.

15.6.2011.

Section 13 of The Family Courts Act, 1984 is not only

violative of a legal practitioner’s right to practice law

guaranteed under Article 19(1)(g) of the Constitution of

India but also is a brutal assault on the right to fair trial of

litigant public at large.

Hence, this writ petition in public interest.

LIST OF DATES AND EVENTS

1961 Advocates Act, enacted by the Parliament.

Different provisions of the said act were

brought into force on different dates.

19.11.1985 Family Courts Act, 1984 came into force

in the state of Rajasthan.

15.6.2011 Section 30 of Advocates Act notified.

15.4.2019 Hence, this PIL.

PETITIONER IN PERSON.


1




Ashish Davessar, aged 31 years, s/o Vijender

Kumar Davessar, r/o 136-A, Scheme no.1, Pratap

Nagar, Sirsi Road, Jaipur-302021.

Permanent Account Number (PAN): BPKPD6284B.

Mobile No:+91-7597280894.

- - - PETITIONER.

VERSUS

1. Union of India, through Secretary, Ministry of Law and

Justice, Department of Legal Affairs, 4th Floor, A-Wing,

Shastri Bhawan, New Delhi-110001.

2. Bar Council of India, through Secretary/Chairperson,

21, Rouse Avenue Institutional Area, Near Bal

Bhawan, New Delhi-110002.

3. State of Rajasthan, through Chief Secretary,

Government of Rajasthan, Secretariat, Jaipur.

- - - RESPONDENTS.


2

D.B. CIVIL WRIT PETITION UNDER ARTICLE 226

OF THE CONSTITUTION OF INDIA READ WITH

CHAPTER XXII-A RULE 385-A TO 385-R OF THE

RAJASTHAN HIGH COURT RULES TO ISSUE A

WRIT OF CERTIORARI, OR ANY OTHER

APPROPRIATE WRIT, ORDER OR DIRECTIONS OF

LIKE NATURE TO DIRECT AND DECLARE THAT

SECTION 13 OF THE FAMILY COURTS ACT, 1984

IS UNCONSTITUTIONAL ON ACCOUNT OF BEING

VIOLATIVE OF ARTICLE 19(1)(G) AND NOT SAVED

UNDER ARTICLE 19(6) OF THE CONSTITUTION

OF INDIA.

TO,

THE HON’BLE ACTING CHIEF JUSTICE AND

HIS OTHER COMPANION JUDGES OF THE

HON’BLE HIGH COURT OF JUDICATURE FOR

RAJASTHAN, JAIPUR BENCH AT JAIPUR.

MAY IT PLEASE YOUR LORDSHIPS:

The humble petitioner most respectfully

submits the present Writ (PIL) Petition as under:-

1. Particulars of the cause/order against which

the petition is made :

That this Petition in public interest is to challenge

the constitutionality of Section 13 of The Family

Courts Act, 1984 which seeks to prohibit


3

representation by a legal practitioner and this

issue needs to be examined in the context of

Article 19(1)(g) of the Constitution of India read

with Section 30 of the Advocates Act, 1961 which

remained un-notified for five decades, but was

finally notified by the notification dated 9.6.2011.

2. Particulars of the petitioner.

That the Petitioner is a citizen of India and thus,

entitled to invoke the writ jurisdiction of this

Hon’ble Court under Article 226 of the

Constitution of India. The petitioner is a

practising advocate of the Jaipur Bench of

Rajasthan High Court whose enrolment number

is R/1427A/2012. He also practices before the

District Courts and Family Courts. The

respondents no.1 to 3 who are necessary parties

are ‘State’ within the meaning of Article 12 of the

Constitution of India and thus, amenable to the

writ jurisdiction of this Hon’ble Court.

3. Declaration and undertaking of the Petitioner:

(i) The present petition is being filed by the

above named petitioner by way of Public

Interest Litigation and the Petitioner does


4

not have any personal interest in the

matter. The Petition is being filed in the

interest of public at large. The Petitioner

has applied his mind to the public

interest involved in the petition in hand,

and has therefore, resolved to file the

present petition. The present petition is

not motivated by any other consideration,

other than public interest and is filed pro

bono public to achieve in letter and spirit

the constitutional mandate of Article

19(1)(g) of the Constitution of India which

guarantees the right to practise any

profession, or to carry on any occupation,

trade or business. This petition seeks the

issuance of an appropriate writ by this

Hon’ble Court to declare Section 13 of

The Family Courts Act, 1984 as

unconstitutional. The present petition is

not filed against a particular person or for

seeking any personal vengeance.

(ii) That the petition is being filed by the

petitioner in person who is a practising


5

advocate of this Hon’ble Court and he

also appears before the subordinate

courts including the Family Courts. The

petitioner has his own source of income,

who has himself borne all expenses

incurred on this petition. Since the

petitioner is an advocate who has filed the

present petition in person, the advocate

fee has not been incurred. Petitioner is

having Permanent Account Number

BPKPD6284B with the Income Tax

Department.

(iii) That a thorough and extensive research

has been conducted in the matter raised

through the instant public interest

litigation and all the relevant material in

respect of such research is being annexed

with this petition. Furthermore, as the

petitioner appears before the Family

Courts in the state of Rajasthan, he has

personal knowledge of the fact that

advocates are not allowed to represent the


6

parties to the proceedings before the

Family Courts.

(iv) That to the best of the knowledge and

research of petitioner the issue raised in

this petition was not dealt with or decided

by this Hon’ble Court earlier and that a

similar or identical petition was not filed

earlier by him.

4. Facts in brief, Constituting the cause:

(i) That the petitioner being a responsible

and law abiding citizen of India with no

criminal antecedents, is an advocate

practising before the Jaipur Bench of the

Rajasthan High Court, who is a resident

of Jaipur. The Petitioner is, therefore,

entitled to invoke the extra ordinary

jurisdiction of this Hon’ble Court by way

of this petition in public interest under

Article 226 of the Constitution of India.

(ii) That Parliament in the year 1961 passed

the Advocates Act, 1961 in order to

amend and consolidate the law relating to

legal practitioners and to provide for the


7

constitution of the Bar Councils and an

All-India Bar. However, Section 30 of the

said Act did not come in force till 2011.

(iii) That Parliament in 1984 passed The

Family Courts Act, 1984. The said Act

came into force w.e.f. 19.11.1985 in the

state of Rajasthan. The statement of

object and reasons of the said Act would

show that the object of the enactment is

to secure speedy settlement of disputes

relating to marriage and family affairs and

for matters connected therewith. A copy

of the Family Courts Act, 1984 is being

annexed with this petition and marked as

ANNEXURE P-1. However, a plain

reading of the said Act would demonstrate

that Parliament has travelled far beyond

the aspect of marital disputes as

jurisdiction has also been vested in the

Family Courts to adjudicate proprietary

rights arising out of marriage. Section 7 of

The Family Courts Act, 1984 which lays

down the jurisdiction of the family courts


8

is reproduced hereinbelow for ready

reference.

“7. Jurisdiction.-

(1) Subject to the other provisions of this

Act, a Family Court shall-

(a) have and exercise all the jurisdiction

exercisable by any district court or any

subordinate civil court under any law for

the time being in force in respect of suits

and proceedings of the nature referred to

in the explanation; and

(b) be deemed, for the purposes of

exercising such jurisdiction under such

law, to be a district court or, as the case

may be, such subordinate civil court for the

area to which the jurisdiction of the Family

Court extends.

Explanation.-The suits and proceedings

referred to in this sub-section are suits and

proceedings of the following nature,

namely:-

(a) a suit or proceeding between the parties

to a marriage for a decree of nullity of

marriage (declaring the marriage to be null

and void or, as the case may be, annulling

the marriage) or restitution of conjugal

rights or judicial separation or dissolution

of marriage;


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(b) a suit or proceeding for a declaration as

to the validity of a marriage or as to the

matrimonial status of any person;

(c) a suit or proceeding between the parties

to a marriage with respect to the property

of the parties or of either of them;

(d) a suit or proceeding for an order or

injunction in circumstances arising out of a

marital relationship;

(e) a suit or proceeding for a declaration as

to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the

guardianship of the person or the custody

of, or access to, any minor.

(2) Subject to the other provisions of this

Act, a Family Court shall also have and

exercise-

(a) the jurisdiction exercisable by a

Magistrate of the First Class under

Chapter IX (relating to order for

maintenance of wife, children and parents)

of the Code of Criminal Procedure, 1973 (2

of 1974); and

(b) such other jurisdiction as may be

conferred on it by any other enactment.”

Furthermore, Section 8 of The Family

Courts Act, 1984 specifically excludes the


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jurisdiction of all other civil and criminal

courts in relation to suits or proceedings

for which jurisdiction has been vested in

the Family Courts by Section 7 of the

said Act. Section 8 which is reproduced

hereinbelow for the ready reference of this

Hon’ble Court would leave no manner of

doubt that wherever Family Courts have

been established they shall have exclusive

jurisdiction over all matters covered by

Section 7 of the said Act.

“8. Exclusion of jurisdiction and pending

proceedings.-

Where a Family Court has been

established for any area,-

(a) no district court or any subordinate civil

court referred to in sub-section (1) of

section 7 shall, in relation to such area,

have or exercise any jurisdiction in respect

of any suit or proceeding of the nature

referred to in the Explanation to that sub-

section;

(b) no magistrate shall, in relation to such

area, have or exercise any jurisdiction or


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power under Chapter IX of the Code of

Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature

referred to in the Explanation to sub-

section (1) of section 7 and every

proceeding under Chapter IX of the Code of

Criminal Procedure, 1973 (2 of 1974),-

(i) which is pending immediately before the

establishment of such Family Court before

any district court or subordinate court

referred to in that sub-section or, as the

case may be, before any magistrate under

the said Code; and

(ii) which would have been required to be

instituted or taken before or by such

Family Court if, before the date on which

such suit or proceeding was instituted or

taken, this Act had come into force and

such Family Court had been established,

shall stand transferred to such Family

Court on the date on which it is

established.”

(iv) That vide Section 13 of The Family Courts

Act, 1984 the fundamental right to

practice any profession for an advocate in

form of making legal representation has

been specifically been denied. Section 13

reads as under:-



12

“13. 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.”

(v) That the Hon’ble Supreme Court in the

case of Lingappa Appealwar V/s State

of Maharashtra and another reported

in AIR 1985 (SC) 389 had an occasion to

deal with the constitutional validity of

Section 9A of the Maharashtra

Restoration of Lands to Scheduled Tribes

Act, 1975, which was couched in similar

terms as Section 13 of the said Act

beginning with the ‘notwithstanding’

clause depriving the pleader’s right to

appear on behalf of parties in any

proceedings under the Act before the

Collector, Commissioner or the


13

Maharashtra Revenue Tribunal. It was

held as under:

“That contention that an advocate

enrolled under the Advocates Act, 1961

has an absolute right to practise before all

Courts and Tribunals can hardly be

accepted. Such a right is no doubt

conferred by Section 30 of the Advocates

Act. But unfortunately for legal profession,

Section 30 has not been brought into force

so far though the Act has been on the

Statute Book for the last 22 years. There is

very little that we can do in the matter and

it is for the Bar to take it up elsewhere. A

person enrolled as an advocate under the

Advocates Act is not ipso facto entitled to a

right of audience in all Courts unless

Section 30 of that Act is first brought into

force. That is a matter which is still

regulated by different statutes and the

extent of the right to practise must depend

on the terms of those statutes. The right of

an advocate brought on the rolls to

practise is, therefore, just what is

conferred on him by Section 14 (1) (a), (b)

and (c) of the Bar Councils Act, 1926…”

The aforesaid observations made by the

Hon’ble Supreme Court would

demonstrate that non-enforcement of


14

Section 30 of the Advocates Act, 1961 was

perceived by the Hon’ble Supreme Court

as the only impediment on the absolute

right of the advocates to practice before

all Courts and Tribunals.

(vi) That subsequently in the case of

Aeltemesh Rein, Advocate Vs Union of

India and others, reported in 1988 (4)

SCC 54, the Hon’ble Supreme Court

issued a writ in the nature of mandamus

to the Central Government to consider

whether the time to bring Section 30 of

the Advocates Act into force had arrived

or not, as the matter could not lie over

without application of mind. Six months’

time was fixed for the said purpose. The

Hon’ble Supreme Court distinguishing

the Aeltemesh Rein Case from A.K. Roy

Vs Union of India and another,

reported in 1982 AIR (SC) 710 held as

under:

“6. The effect of the above observations

of the Constitution Bench is that it is not

open to this Court to issue a writ in the


15

nature of mandamus to the Central

Government to bring a statute or a

statutory provision into force when

according to the said statute the date on

which it should be brought into force is left

to the discretion of the Central government.

As long as the majority view expressed in

the above decision holds the field it is not

open to the Court to issue a writ in the

nature of mandamus directing the Central

Government to bring Section 30 of the Act

into force. But, we are of the view that this

decision does not come in the way of this

Court issuing a writ in the nature of

mandamus to the Central Government to

consider whether the time for bringing

Section 30 of the Act into force has arrived

or not. Every discretionary power vested in

the executive should be exercised in a just,

reasonable and fair way. That is the

essence of the rule of law. The Act was

passed in 1961 and nearly 27 years have

elapsed since it received the assent of the

President of India. In several conferences

and meetings of lawyers resolutions have

been passed in the past requesting the

Central Government to bring into force

Section 30 of the Act. It is not clear

whether the Central Government has

applied its mind at all to the question

whether Section 30 of the Act should be


16

brought into force. In these circumstances,

we are of the view that the Central

Government should be directed to consider

within a reasonable time the question

whether it should bring Section 30 of the

Act into force or not. If on such

consideration the Central Government feels

that the prevailing circumstances are such

that Section 30 of the Act should not be

brought into force immediately it is a

different matter. But it cannot be allowed

to leave the matter to lie over without

applying its mind to the said question.

Even though the power under Section 30

[sic Section 1(3)] of the Act is discretionary,

the Central Government should be called

upon in this case to consider the question

whether it should exercise the discretion

one way or the other having regard to the

fact that more than a quarter of century

has elapsed from the date on which the

Act received the assent of the President of

India. The learned Attorney General of

India did not seriously dispute the

jurisdiction of this Court to issue the writ in

the manner indicated above.”

(vii) That thereafter the Ministry of Law and

Justice passed a notification dated

9.6.2011 in terms whereof Section 30 of

the Advocates Act, 1961 was brought into


17

force w.e.f. 15.6.2011. A true copy of the

notification dated 9.6.2011 passed by the

Ministry of Law and Justice bringing

Section 30 of the Advocates Act, 1961 into

force w.e.f. 15.6.2011 is annexed

herewith as ANNEXURE P-2. Section 30

of the Advocates Act, 1961 reads as

under:

“30. Right of advocates to practise.—

Subject to provisions of this Act, every

advocate whose name is entered in the

[State roll] shall be entitled as of right to

practise throughout the territories to which

this Act extends,—

(i) in all courts including the Supreme

Court;

(ii) before any tribunal or person legally

authorised to take evidence; and

(iii) before any other authority or person

before whom such advocate is by or under

any law for the time being in force entitled

to practise.”

(viii) That in the case of Paramjit Kumar

Saroya Vs Union of India and Another

rendered in Civil Writ Petition No.7282-

2010, the Hon’ble Punjab and Haryana



18

High Court had an occasion to examine

Section 17 of the Maintenance and

Welfare of Parents and Senior Citizens

Act, 2007 which prohibited representation

by a legal practitioner, in the context

of Section 30 of the Advocates Act. After

examining the said Section 17 of the

Maintenance Act in light of Section 30 of

the Advocates Act, the Punjab and

Haryana High Court held that Section 17

of the Maintenance Act would not come in

the way of legal representation on behalf

of parties post 15.6.2011 in view of

Section 30 of the Advocates Act having

come into force. The Hon’ble High Court

observed as under:

“In the conspectus of the discussions

aforesaid, we are thus of the view that the

decision vide section 30 of the Advocates

Act has become law on a posterior date

to Section 17 of the said Act which is

sufficient for us to come to the conclusion

that there cannot be an absolute bar to the

assistance by legal practitioners to a

Tribunal or the Appellate Tribunal despite

the "notwithstanding" clause. Both the



19

enactments are Central enactments. While

the said Act was being enacted, the

absence of Section 30 of the Advocates Act

was known. Not having conferred that

right under Section 30 of the Advocates Act

on the legal practitioner, the Parliament in

its wisdom had found no reasons to give

such rights under Section 17 of the said

Act. However, the situation has

subsequently changed on account

of Section 30 of the Advocates Act having

come into force. The right conferred

under Section 30, subject to the provisions

of the Advocates Act, is on every advocate

so far his name is entered in the State roll

to practise "throughout the territory to

which this Act extends". Such right is qua

all Courts including the Supreme Court.

Such right is also before any Tribunal or

person "legally authorized to take

evidence". Thus, if a Tribunal is legally

authorized to take evidence, there is right

in the advocate to practise before the

Tribunal. The Tribunal has the right to take

evidence. That being the status of the

Tribunal, there has been intrinsic right in

the advocate to practise before such a

Tribunal in view of Section 30 of the

Advocates Act which cannot be taken

away. The position would be the same

before the Appellate Tribunal in view of the


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powers conferred on a Tribunal constituted

under Section 7 of the said Act. Sections

6, 8 and 11 of the said Act leave no

manner of doubt about the vast powers

including taking the evidence on oath,

enforcing attendance of witnesses,

compelling discovery of documents, it

being a Civil Court for all the purposes

of Section 195 and Chapter XXVI of

the Cr.P.C. etc.

The over-riding provisions of the said

Act under Section 3 in the context

of Section 17 of the said Act have to be

appreciated in the context of the law

prevalent when the said Act was enacted.

The ground reality has changed on

account of Section 30 of the Advocates Act

having come into force on 15.06.2011,

while all the judgements taking contrary

view are based on Section 30 not being

notified and the consequence

thereof. Section 30 was not law when the

said enactment was enacted and brought

into force.”

Further, the Hon’ble Punjab and Haryana

High Court held:

“Section 17 would not come in the way of

legal representation on behalf of parties

post 15.06.2011 in view of Section 30 of

the Advocates Act having come into force.”


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The copy of the judgment and order

dated 28.5.2014 passed by the Hon’ble

Punjab and Haryana High Court at

Chandigahr in the case of Paramjit

Kumar Saroya Vs Union of India and

Another in CWP No.7282-2010 reported

in AIR 2014 Punjab and Haryana 121 is

annexed herewith as ANNEXURE P-3.

5. Source of Information:

That the petitioner has the personal

knowledge of the facts enshrined in this

petition and rest of the information has been

collected by him on a thorough research of

the subject.

6. Nature and extent of injury

caused/apprehended:

That not only Section 13 of The Family

Courts Act, 1984 is violative of the

fundamental freedom enshrined in Article 19

(1)(g) of the Constitution of India, but it also

brutally violates the cherished right of free

and fair trial of litigants before the Family

Court.


22

7. Any representation etc. made :

No representation has either been made by

the petitioner, or is required to be made as

the petitioner has challenged the

constitutional validity of Section 13 of The

Family Courts Act, 1984.

8. Grounds :

Hence, the petitioner being aggrieved with

Section 13 of The Family Courts Act, 1984,

prefers present Public Interest Litigation

before this Hon'ble court on the following

grounds amongst other as under:

A. Because Article 19(1)(g) of the Constitution of

India provides that all citizens shall have the

right to practice any profession, or to carry any

occupation, trade or business. Article 19(1)(g) is

subject to Article 19(6) which provides as:

“(6) Nothing in sub clause (g) of the

said clause shall affect the operation

of any existing law in so far as it

imposes, or prevent the State from

making any law imposing, in the

interests of the general public,

reasonable restrictions on the exercise

of the right conferred by the said sub


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23

clause, and, in particular, nothing in

the said sub clause shall affect the

operation of any existing law in so far

as it relates to, or prevent the State

from making any law relating to,

(i) the professional or technical

qualifications necessary for practising

any profession or carrying on any

occupation, trade or business, or

(ii) the carrying on by the State, or by a

corporation owned or controlled by the

State, of any trade, business, industry

or service, whether to the exclusion,

complete or partial, of citizens or

otherwise.”

The freedom guaranteed under Article 19(l)(g) is

valuable and cannot be violated on grounds

which are not established to be in public interest

or just on the basis that it is permissible to do so.

For placing a complete prohibition on any

professional activity, there must exist some

strong reason for the same with a view to attain

some legitimate object and in case of non-

imposition of such prohibition it may result in

jeopardizing or seriously affecting the interest of

the people in general. If it is not so, it would not

be a reasonable restriction if placed on exercise of


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the right guaranteed under Article 19(l)(g). In the

celebrated case of M.R.F. Ltd. v. Inspector,

Kerala Government and Ors reported in 1998

(8) SCC 227, the Hon’ble Supreme Court had an

occasion to lay down certain tests on the basis of

which reasonableness of the restriction imposed

on exercise of right guaranteed under Article

19(l)(g) can be tested. Speaking for the Court,

Saghir Ahmad, J. (as he then was), laid such

considerations as follows :

i. While considering the

reasonableness of the restrictions,

the Court has to keep in mind the

Directive Principles of State Policy.

ii. Restrictions must not be arbitrary or

of an excessive nature so as to go

beyond the requirement of the

interest of the general public.

iii. In order to judge the reasonableness

of the restrictions, no abstract or

general pattern or a fixed principle

can be laid down so as to be of

universal application and the same

will vary from case to case as also

with regard to hanging conditions,

values of human life, social

philosophy of the Constitution,


25

prevailing conditions and the

surrounding circumstances.

iv. A just balance has to be struck

between the restrictions imposed

and the social control envisaged by

Clause (6) of Article 19.

v. Prevailing social values as also

social needs which are intended to

be satisfied by restrictions have to

be borne in mind. (See: State of U.P.

vs. Kaushailiya, (1964) 4 SCR 1002

= AIR 1964 SC 416).

vi. There must be a direct and

proximate nexus or a reasonable

connection between the restrictions

imposed and the object sought to be

achieved. If there is a direct nexus

between the restrictions, and the

object of the Act, then a strong

presumption in favour of the

constitutionality of the Act will

naturally arise.”

It is most respectfully submitted that the

restriction imposed by Section 13 of The Family

Courts Act, 1984 is not only unreasonable and

arbitrary, but also beyond the interest of the

general public. On the contrary, it is directly

antithetical to public interest. There is no direct


26

and proximate nexus between Section 13 of The

Family Courts Act, 1984 and the object sought to

be achieved by it.

B. Because under Article 19(1)(g) of the Constitution

of India read in tandem with Section 30 of the

Advocates Act, 1961 it is the fundamental right of

an advocate to make legal representation and

practice his profession before any Tribunal and

Court if the litigant has engaged him by executing

vakalatnama in his favour or subject to only

those conditions which are mentioned under

Advocates Act, 1961. Section 30 of the Advocates

Act, 1961 which was brought into force w.e.f.

15.6.2011, provides as under:

“30. Right of advocates to practise.—

Subject to provisions of this Act, every advocate

whose name is entered in the [State roll] shall be

entitled as of right to practise throughout the

territories to which this Act extends,—

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised

to take evidence; and

(iii) before any other authority or person before

whom such advocate is by or under any law for

the time being in force entitled to practise.”



27

The aforesaid Section 30 of the Advocates Act, 1961

confers on an advocate the right to practice in all

courts including the Supreme Court and also

tribunal or before any person who is legally

authorised to take evidence. It is submitted that

Family Court falls within the definition of the

expression ‘Courts’ enshrined in Section 30(i) of

Advocates Act, 1961. The Family Court is also legally

authorised to take evidence as the suits or

proceedings of the nature mentioned in Explanation

to Section 7(1) of The Family Courts Act, 1984,

cannot be decided without taking evidence and

conducting a full fledged trial. Section 30(ii) of the

Advocates Act, 1961 lays emphasis on the aspect

“legally authorised to take evidence”. The role of

a legal practitioner becomes crucial and

indispensable where evidence has to be adduced.

Under the provisions of The Family Courts Act, 1984

they no more remain simple proceedings between

spouses, but deal with proprietary rights,

declarations as to the validity of marriage, legitimacy

of a person, guardianship and also injunctions.

Under Explanation (c) to Section 7(1) of The Family


28

Courts Act, 1984, the Family court has been

empowered to decide the suits or proceedings

between the parties to a marriage with respect to the

properties of parties or either of them. This would

naturally mean that Family Court has to decide

partition suits, which cannot be done without taking

evidence and thus conducting a full fledged trial.

Under Explanation (d) of Section 7(1) of the Family

Courts Act, 1984 the Family Court has also been

empowered to decide a suit for injunction, which also

requires a full fledged trial, and thus evidence has to

be inevitably taken. Even more, under Explanation

(e) of Section 7(1) of the Family Courts Act, 1984 the

Family Court has to decide suits for declaration as to

the legitimacy of a person, whereas under

Explanation (g) of Section 7(1) of the Family Courts

Act, 1984 the Family Court has to decide

guardianship suits. It cannot even be conceived in

the first place that suits and proceedings of the

nature mentioned in the Explanations to Section 7(1)

of the Family Courts Act, 1984 which are adversarial

in nature, require a full fledged trial and moreover

involve complex and intricate legal issues, can be


29

conducted by the parties without their counsel and

decided by the court without assistance of lawyers.

Equally fallacious it is to assume that these suits

and proceedings can be decided by the court without

taking evidence. The suits and proceedings to be

decided by the Family Court are not only beset with

complex factual and legal issues, but even affect

third party rights. Under Section 18 of the Family

Courts Act, 1984, the Family Court has been

empowered to execute its decrees and orders in the

same manner as those of Civil Court. Section 13 of

The Family Courts, 1984 is not only violative of the

fundamental freedom guaranteed to lawyers under

Article 19(1)(g) to practice law, but is also the most

brutal assault on the right to free and fair trial of

litigants. A Divison Bench of this Hon’ble High Court

in the case of Smt.Nandana V/s Pradeep Bhandari

reported in 1996 (2) WLC Rajasthan (234) had

lamented the incorporation of Section 13 on the

statute book and called it a remedy worse than the

disease and requested the Legislature to have a

relook at the provision. The relevant portion of the

said judgment is extracted below;


30

“18. Before parting with the case we feel it

necessary to record that the way in which this

litigation is being conducted by the parties leaves

us sad. The purpose of keeping the lawyers away

from such litigation seems to be completely

defeated in this case. Parties have to take upon

themselves the task of pleading their respective

cases as lawyers have not been allowed. The

decorum and dignity with which cases are

normally conducted before the Civil Court with the

aid of professionals steeped in the age old

traditions of the Bar are totally lost and

unrestricted and relentless acrimony has taken

their place. It cannot be believed that parties to

such litigation prosecute it without the aid of

lawyers. If that is issue, no useful purpose can be

served by keeping the lawyers out of the Court.

When the lawyers appear before the Court as

proxy to their clients, they are expected to have a

subtle, studied sense of detachment from the

cause of their respective clients and they are

expected not to personally involve themselves in

the cause. They have a responsibility towards the

Court also. When the roles are reversed and the

lawyer is only expected to act behind the scenes,

the litigant willy-nilly may become a proxy and the

battle may be fought between the two lawyers

using the litigants as puppets or cat's-paw. The

result is a fierce no-holds-barred battle between

two hapless persons estranged from each of the

party. The purpose of keeping the lawyers out of


31

the Court is defeated and a litigant who finds

himself unequipped and unable to plead his own

case and who has in any case to depend on

lawyer for advice is deprived of the services in the

Court of a competent and responsible professional.

It appears to be a case where the remedy has

proved more harmful than the disease itself. It is

high time, the Legislature takes a second- look at

the provision contained in Section 13 of the Family

Courts Act, 1984.”

It is respectfully submitted that lawyers

conducting suits and proceedings of the nature

mentioned in Section 7 of the Family Courts Act,

1984 was never any disease in the first place. Fair

trial, which is an integral component of Article 21

of the Constitution of India, is set to naught due to

Section 13 of The Family Courts Act, 1984. Hence,

the restriction imposed by Section 13 of The

Family Courts Act, 1984 is unreasonable, arbitrary

and is patently antithetical to the interests of the

general public.

C. Because although Section 13 of the Family

Courts Act, 1984 begins with the

“notwithstanding” clause, but the complete

phrase used is ‘notwithstanding anything


https://indiankanoon.org/doc/40332/

32

contained in any law’. The reference in law can

only be a law which is in force. On the date on

which the said act came into force on 19.11.1985,

Section 30 of The Advocates Act, 1961 did not

exist in the statute book. This is so as the

Parliament in its wisdom had given the right to

the Executive to notify from which date this

provision would be applicable. Thus, Section 30

of the Advocates Act, 1961 would come within the

realm of “any law” only if it was on the statute

book. This provision came on to the statute book

only w.e.f. 15.6.2011.

No doubt, Section 30 of the Advocate Act has

been part of the Advocates Act as passed by the

Parliament in 1961. The Family Courts Act, 1984

is a subsequent statute of the year 1984.

However, Section 30 of the Advocates Act, 1961

was not part of the law on account of the

conscious will of the Parliament to leave the

aspect of its enforcement to the Executive and the

Executive thereafter in its wisdom brought it into

force only on 15.06.2011 i.e much after the

Family Courts Act, 1984 came into force. It is in


33

that sense that Section 30 of the Advocates Act is

a subsequent law which has come into force.

That in order to find out that when a Central Act

comes into force, it is important to refer Section 5

of the General Clauses Act, 1987 which is

reproduced hereinbelow:

“5. Coming into operation of enactments –

[(1). Where any Central Act is not expressed to

come into operation on a particular day, then it

shall come into operation on the day on which it

receives the assent-

(a) in the case of a Central Act made before the

commencement of the Constitution, of the

Governor-General, and

(b) in the case of an Act of Parliament, of the

President]

(3) Unless the contrary is expressed, a 1[Central

Act] or Regulation shall be construed as coming

into operation immediately on the expiration of the

day preceding its commencement.”

It is submitted that the reference aforesaid is in

the context as to when a Central Act comes into

force i.e. when it is not expressed to come into


34

operation on a particular day, it is to be on the

day when it receives the assent of the President;

and on the expiry of the day preceding its

commencement under sub section (3) of Section 5

of the General Clauses Act. However, this has a

caveat that “unless the contrary is expressed”.

The Parliament itself in terms of sub section (3) of

Section 1 of the Advocates Act had authorized the

Central Government to appoint different dates for

bringing into force different provisions of the Act.

Thus, it did not come into force in terms of clause

(b) and sub section (3) of Section 5 of the General

Clauses Act and came into force almost five

decades late. Thus, Section 30 of Advocates Act,

became law posterior to the Family Courts Act.

The Kerala High Court in the case of C.P. Saji V/s

Union Of India rendered in WP(C).No. 18334 of

2011 reported in AIR 2012 Kerala 23 had

declared that Section 13 of The Family Courts

Act, 1984 has become redundant due to

notification of Section 30 of Advocates Act. The

relevant portion of the said judgment of Kerala

High Court is extracted below;


35

“9. Yet another aspect to be considered, is

whether any 'Sanction' to engage a Lawyer is

necessary as on date. Section 30 of the Advocates

Act is relevant in this regard; which reads as

follows:

S.30- Right of Advocates to Practise:-

"Subject to the provisions of this Act, every

advocate whose name is entered in the (State roll)

shall be entitled as of right to practise throughout

the territories to which this Act extends;

(i) in all courts including the Supreme Court;

(ii) (ii) before any tribunal or person legally

authorized to take evidence; and

(iii) (iii) before any other authority or person

before whom such advocate is by or under

any law for the time being in force to

practise"

It remains a fact that Section 30 was never notified

for 5 decades, after giving effect to the legislation

in the year 1961. Scope of Section 13 of the Family

Courts Act, 1984 dealing with the right to legal

representation (which speaks about the necessity

to file 'Sanction petition') has to be analyzed in the

above background. The said provision reads as

follows:

S.13. "Right to legal representation –

Notwithstanding anything contained in any law,

no party to a suit or proceedings before a Family

Court shall be entitled, as of right, to be

represented by a legal practitioner:



36

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". By

virtue of the above provision, right of a litigant to

be represented through a lawyer, before the

Family Court is not automatic; but subject to the

Sanction to be obtained

10. Non-issuance of notification giving effect

to Section 30 of the Advocates Act, 1961 was the

subject matter of debate for many a decade. As a

matter of fact, the Advocates Act 1961, received

the assent of the President of India on 19th May,

1961. Sub-section (3) of Section 1 of the Act

provides that, it shall, in relation to the territories

other than those referred to in sub- section (4)

come into force as such date as the Central

Government may, by notification in the Official

Gazette, appoint and different dates may be

appointed for different provisions of the Act.

Chapters I, II and VII of the Act were brought into

force on 16.08.1961, Chapter II and Section 50 (2)

on 01.12.1961, section 50(1) on

15.12.1961, Sections 51 and 52 on

24.01.1962, Section 46 on 29.03.1962, Section

32 and Chapter VI (except Sections 46, 50 (1) and

(2), 51 and 52 which had already come into force)

on 04.01.1963, Chapter V on 01.09.1963 and

Sections 29, 31, 33 and 34 of Chapter IV of the Act

on 01.06.1969; while no notification was issued in

respect of Section 30 conferring the right to

practise on every advocate before any


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37

Court/Tribunal or such other authorities as

specified therein.

11. Since the above provision was not notified

even after a quarter of century, interference of the

Court was sought for. The issue was brought up

for consideration before the Apex Court in

Aeltemesh Rein Vs. Union of India (AIR 1988 SC

1768), wherein it was observed by the Court that,

in view of the law declared by the Constitution

Bench of the Supreme Court in A.K Roy Vs. Union

of India (AIR 1982 SC 710), no Writ of Mandamus

could be issued to the Central Government to bring

a statute or a provision in a statute into force in

exercise of the powers conferred by the Parliament

in that statute. However, after hearing the learned

Attorney General and the learned Additional

Solicitor General, it was observed that, there was

no hurdle in directing the Central Government to

consider whether the time for bringing Section

30 of the Advocates Act 1961 into force had

arrived or not. The Writ Petition was accordingly

disposed of, directing the Central Government by a

Writ in the nature of Mandamus, to consider the

said aspect within six months.

12. As observed by the Apex Court in paragraph 4

of the decision cited supra, when Section 30 of the

Advocates Act is brought into force, every Advocate

whose name is entered in the State roll will be

entitled as of right to practise throughout the

territories to which the Act extends, before the

Courts, Tribunals and other authorities or persons



38

referred to therein. It is also observed in the very

same paragraph that, there are various

enactments in force in the country, which impose

restrictions on the right of an Advocate to appear

before certain Courts, Tribunals and authorities,

like section 36 (4) of the Industrial Disputes

Act 1947, Section 13 of the Family Courts Act,

1984 (as involved herein)...etc.

13. It took more than another quarter of a century

for the Central Government to have awakened

from the slumber and to have felt the necessity to

notify the provision. It is brought to the notice of

this Court that after much deliberations things

have now taken a positive turn, when the Union

Government thought it fit to have Section 30 of the

Advocates Act notified. Accordingly, the said

provision was notified in the Gazette of India

dated 9.6.2011 declaring that the Government

appointed, '15.6.2011' as the date for giving effect

to Section 30 of the Advocates' Act 1961. In view of

the notification as aforesaid, Section 30 of the

Advocates Act, 1961 has been brought into force

from 15.06.2011 and as it stands so, all the

Lawyers have acquired a right to Practise before

all Courts/Tribunals and such other Forum of

India as a matter of right, which provision is

having all the traits and effect of a subsequent

legislation to override the restrictive covenants as

contained in Section 13 of the Family Courts Act.

This being the position; the stipulation contained

in Section 13 of the Family Courts Act 1984,


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39

necessitating prior Sanction of the said Court has

virtually become redundant.

14. In the above circumstances, this Court declares

that it is open for a litigant to pursue the cause of

action before the Family Court, engaging any

Lawyer of his choice and such Lawyer is entitled

to present the matter, on filing the Vakalath, as a

matter of right. Exhibit P1 issued by the 3rd

respondent is set aside.

15. The writ petition is allowed. No cost. The

Registry is directed to forward a copy of this

judgment to all the Family Courts in Kerala.”

Hence, Section 13 of The Family Courts Act, 1984

is violative of Article 19(1)(g) read with Section 30

of the Advocates Act, and is not saved by Article

19(6) of the Constitution of India.

(i) That the petitioner has no other

alternate, adequate and equally

efficacious remedy except to approach

this Hon'ble court by way of this writ

petition in public interest for his

grievances under Article 226 of the

Constitution of India.

(ii) That all the other grounds, if any, will be

urged at the time of hearing of this writ


40

petition with the prior permission of this

Hon'ble Court.

9. Delay, if any, in filing the petition and

explanation thereof:

Not applicable.

10. Relief (s) prayed for :

It is therefore most respectfully prayed that your

lordships may graciously be pleased to accept and

allow this Writ (PIL) Petition and;

(i) Issue a writ of certiorari, or any other

appropriate writ, order or directions of like

nature to direct and declare that Section 13 of

the Family Courts Act, 1984 is unconstitutional

on account of being violative of Article 19(1)(g)

and not saved under Article 19(6) of the

Constitution of India.

(ii) Any other order or direction, which your

lordships may deem just and proper in the facts

and circumstances of the case, may also kindly

be passed in favour of the public at large and in

the interest of justice.


41

11. Interim order, if prayed for :

During the pendency of this petition the

petitioner prays for the issuance of an interim order

through an appropriate ad-interim writ to stay the

operation of Section 13 of The Family Courts Act,

1984 on account of it being violative of fundamental

freedom guaranteed under Article 19(1)(g) of the

Constitution of India and Section 30 of Advocates

Act.

12. Caveat.

That no notices has been received of lodging a

caveat by the opposite party.

PLACE: JAIPUR PETITIONER IN PERSON

DATED: 15.4.2019

Notes :

1. That no such petition claiming all or any of the reliefs

claimed herein has previously been filed by the

petitioner either before this Hon'ble Court or Hon'ble

Supreme court of India.

2. That PF, Notices and Extra Sets will be furnished

within stipulated period.


42

3. That it is D.B. Civil Writ (P.I.L.) Petition wherein the

constitutionality of Section 13 of The Family Courts

Act, 1984 is being challenged.

4. That as pie papers are not readily available, hence it

has been typed on stout papers.

5. That it has been typed by my private steno, who is

not a staff member of this Hon’ble Court.

PETITIONER IN PERSON


43




Ashish Davessar.

VERSUS


AFFIDAVIT IN SUPPORT OF THE WRIT PETITION.

I, Ashish Davessar, S/o Vijender Kumar Davessar, Aged

31 years, R/o 136-A, Scheme No.1, Pratap Nagar, Sirsi

Road, Jaipur-302021, do hereby take oath and state as

under:-

1. That I am the petitioner in the present Writ Petition

and am well conversant with the facts of the case.

2. That the annexed Petition has been drafted by me

personally and I shall appear in person before this

Hon’ble Court to argue it. The contents thereof have

been understood by me.

3. That the factual contents of paras no.1 to 12 and

main prayer part of the petition are true and correct

to the best of my personal knowledge.

DEPONENT


44

VERIFICATION

I, the above named deponent do hereby affirm and verify

that the contents of para No. 1 to 3 of the above affidavit

are true and correct to best of my personal knowledge.

Nothing material has been concealed therefrom and nor

any part of it is false. So help me God.

DEPONENT


45



D.B. CIVIL MISC.STAY APPLICATION NO._______ OF 2019.

IN

D.B. CIVIL WRIT (PIL) PETITION NO. ___________ OF 2019.

Ashish Davessar, aged 31 years, s/o Vijender

Kumar Davessar, r/o 136-A, Scheme no.1, Pratap

Nagar, Sirsi Road, Jaipur-302021.

Permanent Account Number (PAN): BPKPD6284B.

Mobile No:+91-7597280894.

- - - APPLICANT/PETITIONER.

VERSUS

1. Union of India, through Secretary, Ministry of Law and

Justice, Department of Legal Affairs, 4th Floor, A-Wing,

Shastri Bhawan, New Delhi-110001.

2. Bar Council of India, through Secretary/Chairperson,

21, Rouse Avenue Institutional Area, Near Bal

Bhawan, New Delhi-110002.

3. State of Rajasthan, through Chief Secretary,

Government of Rajasthan, Secretariat, Jaipur.

- - - RESPONDENTS.


46

D.B. CIVIL MISCELLANEOUS STAY APPLICATION

UNDER ARTICLE 226 OF THE CONSTITUTION OF

INDIA TO STAY THE OPERATION OF SECTION 13

OF THE FAMILY COURTS ACT, 1984.

TO,

THE HON’BLE ACTING CHIEF JUSTICE & HIS

OTHER COMPANION JUDGES OF THE HON’BLE

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

MAY IT PLEASE YOUR LORDSHIPS;

The humble Applicant most humbly and

respectfully submits this stay application as under:-

1. That the applicant has filed the accompanying writ

petition in public interest along with this stay

application before this Hon’ble Court to challenge the

constitutionality of Section 13 of The Family Courts

Act, 1984. From the facts and material on record, a

strong prime facie case is made out and in favor of

the Petitioner and he is very hopeful of success in the

same.


47

2. That for the sake of brevity and to avoid prolixity and

repetition the facts and ground urged in the

accompanying writ petition may be treated as part

and parcel of this stay application.

3. That looking to the facts and circumstances of the

case, during the pendency of the accompanying writ

petition the operation of Section 13 of The Family

Courts Act, 1984, may kindly be stayed in the

interest of justice.

PRAYER

It is, therefore, most humbly and respectfully prayed that

this Hon’ble Court may in the facts and circumstances

mentioned above be pleased to:

A. Allow this stay application and during the pendency of

the accompanying writ petition the operation of Section

13 of The Family Courts Act, 1984, may kindly be

stayed in the interest of justice.

B. Any other order, which this Hon’ble Court deem just

and proper may kindly be passed in favour of the

Applicant-Petitioner.

PLACE: JAIPUR APPLICANT IN PERSON

DATED: 15.4.2019


48

Notes :

1. That no such application claiming all or any

of the reliefs claimed herein has previously

been filed by the applicant either before this

Hon'ble Court or Hon'ble Supreme court of

India.

2. That PF, Notices and Extra Sets will be

furnished within stipulated period.

3. That it is D.B. Civil Writ (P.I.L.) Petition

wherein the constitutionality of Section 13 of

The Family Courts Act, 1984 is being

challenged.

4. That as pie papers are not readily available,

hence it has been typed on stout papers.

5. That it has been typed by my private steno,

who is not a staff member of this Hon’ble

Court.

APPLICANT IN PERSON


49



D.B. CIVIL MISC.STAY APPLICATION NO._______ OF 2019.

IN


Ashish Davessar.

VERSUS


AFFIDAVIT IN SUPPORT OF THE STAY APPLICATION.




under:-

1. That I am the applicant in the present stay

application and am well conversant with the facts of

the case.

2. That the annexed stay application has been drafted

by me personally and I shall appear in person before

this Hon’ble Court to argue it. The contents thereof

have been understood by me.


50

3. That the factual contents of paras no.1 to 3 and

main prayer part of the application are true and

correct to the best of my personal knowledge.

DEPONENT

VERIFICATION

I, the above named deponent do hereby affirm and verify

that the contents of para No. 1 to 3 of the above affidavit

are true and correct to best of my personal knowledge.

Nothing material has been concealed therefrom and nor

any part of it is false. So help me God.

DEPONENT


51




Ashish Davessar.

VERSUS


AFFIDAVIT IN SUPPORT OF DOCUMENTS.




under:-

1. That I am the applicant in the present stay

application and am fully conversant with the facts of

the case.

2. That Annexures P-1 to P-3 are true copies of the

documents downloaded from the respective internet

sources.

DEPONENT

VERIFICATION

I, the above named deponent do hereby affirm and

verify that the contents of para No. 1 to 2 of the


52

above affidavit are true and correct to best of my

personal knowledge. Nothing material has been

concealed therefrom and nor any part of it is false.

So help me God.

DEPONENT


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