Woman’s advocate in earlier divorce case can appear for second husband in case against her

Bombay High Court:  In a case of appeal against a family court order, a bench comprising of Revati Mohite Dhere, J observed that if an advocate, who had 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 ruling came as a relief to advocate Edith Dey who had represented the respondent in her first divorce and was now representing the respondent’s second husband in the ongoing divorce case. Earlier, the family court had set aside the advocate’s appointment and directed the second husband to appoint another advocate to represent him. Advocate Dey appealed against this decision arguing that there was no conflict of interest and that the two proceedings were distinct and unconnected. On the other hand, the wife’s advocate Taubon Irani emphasized that advocates must maintain their clients’ confidentiality.

After listening to arguments on both sides, the Court noted that nowhere had the wife contended that the said advocate was aware of any confidential information. The Court also observed that the family court had failed to take into consideration that  the divorce case where the Advocate Dey had represented the respondent-wife was converted into a petition for divorce by mutual consent in the first hearing itself. The Court also clarified that the said family court order did not decide on whether the advocate can or cannot appear for the second husband; instead, the judge held merely observed that under Section 13 of the Family Court Act, 1984, there is no inherent right in an Advocate to appear. After discussing Rule 23 of Bar Council of India rules, Section 34(1); of Advocate Act, 1961 and a related judgment of Andhra Pradesh High Court, the Court came to a conclusion that an advocate cannot switch sides and appear for the opposite side in the same proceedings but  in this case it cannot be said that the proceedings in which the advocate  was now appearing were the “same proceedings.” Rajiv Hiranandani vs. Namrata Zakaria, Civil Writ Petition No.11135 of 2013, decided on July 31, 2014

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