Mumbai: If an advocate who represented a woman in her earlier divorce proceedings later represents her second husband against her, it cannot be said that the advocate switched sides in the "same proceedings", the Bombay high court has ruled.
The ruling came as a relief to advocate Edith Dey, who represented Namita Zafar (name changed) in her first divorce and now represents Namita's second husband Ravi Hardasani (name changed) in their on-going divorce case. Last year in September, the family court in Bandra had set aside Dey's appointment by Hardasani after Namita raised a complaint; it directed Hardasani to appoint another advocate to represent him. On July 31, however, Justice Revati Mohite Dere quashed the family court's order.
Dey argued in the high court that Namita had objected to her appearing for Hardasani only in the divorce proceedings and not in other matrimonial proceedings initiated by Namita. Among these, she said, were a domestic violence case and appeals filed against interim maintenance. Arguing that there was no conflict of interest, Dey said the two proceedings were distinct and unconnected. Namita's advocate Taubon Irani, on the other hand, emphasized that advocates must maintain their clients' confidentiality. Irani said objections were raised before various courts to Dey's appearance, but they were not considered. Dismissing this contention, Justice Mohite Dere said court orders did "not reflect" this.
The high court, in its judgment, noted that Namita had not contended that Dey was aware of any confidential information. It also pointed out that the family court judge had not considered the fact that in the divorce case where Dey represented Namita, it was converted into a petition for divorce by mutual consent on the first hearing.
Justice Mohite Dere said the family court judge did not decide on whether Dey can or cannot appear for the second husband; instead, the judge held that under section 13 of the Family Court Act an advocate cannot appear as a matter of right. The high court referred to a Bar Council of India rule, HC rules and a judgment of the full HC bench that held that an advocate cannot switch side and appear for the opposite side in the same proceedings. But it cannot be said that the proceedings in which Dey is now appearing are the "same proceedings," said the HC.
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The ruling came as a relief to advocate Edith Dey, who represented Namita Zafar (name changed) in her first divorce and now represents Namita's second husband Ravi Hardasani (name changed) in their on-going divorce case. Last year in September, the family court in Bandra had set aside Dey's appointment by Hardasani after Namita raised a complaint; it directed Hardasani to appoint another advocate to represent him. On July 31, however, Justice Revati Mohite Dere quashed the family court's order.
Dey argued in the high court that Namita had objected to her appearing for Hardasani only in the divorce proceedings and not in other matrimonial proceedings initiated by Namita. Among these, she said, were a domestic violence case and appeals filed against interim maintenance. Arguing that there was no conflict of interest, Dey said the two proceedings were distinct and unconnected. Namita's advocate Taubon Irani, on the other hand, emphasized that advocates must maintain their clients' confidentiality. Irani said objections were raised before various courts to Dey's appearance, but they were not considered. Dismissing this contention, Justice Mohite Dere said court orders did "not reflect" this.
The high court, in its judgment, noted that Namita had not contended that Dey was aware of any confidential information. It also pointed out that the family court judge had not considered the fact that in the divorce case where Dey represented Namita, it was converted into a petition for divorce by mutual consent on the first hearing.
Justice Mohite Dere said the family court judge did not decide on whether Dey can or cannot appear for the second husband; instead, the judge held that under section 13 of the Family Court Act an advocate cannot appear as a matter of right. The high court referred to a Bar Council of India rule, HC rules and a judgment of the full HC bench that held that an advocate cannot switch side and appear for the opposite side in the same proceedings. But it cannot be said that the proceedings in which Dey is now appearing are the "same proceedings," said the HC.
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