On Thursday, making an important observation, the Delhi High Court declared the Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 barring Lawyers from representing parties in matters before the Maintenance Tribunals as ultra vires.
The single-Judge Bench of Justice Prathiba M Singh in line with the Kerala High Court's judgement in April this year stating that the provision is ultra vires of Section 30 of the Advocates Act, 1961, upheld the same.
Relying on the said judgement, she observed:
"Since Section 17 has been declared ultra vires
it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly."
The Kerala High Court had observed that Section 30 of the Advocates Act entitles an Advocate as of right to practise before all Courts and Tribunals and thus takes away the restriction imposed on appearance of Lawyers. Relying on Article 19 of the Constitution which guarantees the freedom to practice any profession, the High Court stated that the provision thus enables Advocates to appear before all the Courts and the Tribunals.
The Petitioner informed the Court that evidence is not being permitted to be led before Maintenance Tribunals since it follow summary procedure, it is vested with the power to exercise discretion in matters of recording evidence.
The Court on this held:
"In a particular case, if the Tribunal is of the opinion that the attendance of the witnesses and proving of documents is required, it has the power under Section 8(2) of the Civil Court for the purpose of taking evidence on record and enforcing attendance of witnesses. This, however, would not mean that in every case, the Tribunal would have to record oral evidence or take on record documentary evidence. The nature of the proceedings itself being summary, the discretion vests with the Tribunal to adopt the procedure as may be suitable to the facts and circumstances of each case."
The High Court also clarified that even though Lawyers are allowed to represent the litigants, the summary procedure cannot be permitted to be converted into a long-drawn trial and adjudication as it would defeat the very purpose of the legislation itself.
The judgement has been passed by single-Judge Bench of Justice Parthiba M Singh on 16-04-2021.
Read Judgement Here:
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