Can a non-lawyer appear in court to defend his wife?

[Anonymous]

Sir, can i appear in front of court to defend my wife being non LL.B. degree holder?

[Dr. Ashok Dhamija]

Generally speaking, a non-advocate is not allowed to appear in a court on behalf of another person. Either the party himself can appear in person or an advocate is required to be engaged to represent the party in the court. Section 29 of the Advocates Act, 1961, states as under:

“29. Advocates to be the only recognised class of persons entitled to practise law.—Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.”

However, at the same time, Section 32 of the Advocates Act states as under:

“32. Power of court to permit appearances in particular cases.—Notwithstanding anything contained in this Chapter, any court, authority or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.”

Thus, while generally speaking only an advocate can appear in court on behalf of another person (or that person can himself or herself appear to represent his or her own case), in some special circumstances, the court has power to permit a private person (who is not an advocate) to appear before it in a particular case.

Similarly, the Supreme Court Rules, 2013, also contains the following provision:

“Provided further that the Court may, if it thinks desirable to do so for any reason, permit any person to appear and address the Court in a particular case.”

In this regard, in the case of Harishankar Rastogi v. Girdhari Sharma, (1978) 2 SCC 165 : AIR 1978 SC 1019 : 1978 Cri LJ 778, the Supreme Court has held as under:

“…a private person, who is not an advocate, has no right to barge into court and claim to argue for a party. He must get the prior permission of the court, for which the motion must come from the party himself. It is open to the court to grant or withhold permission in its discretion. In fact, the court may, even after grant of permission, withdraw it halfway through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.”

In the case of Goa Antibiotics & Pharmaceuticals Ltd. v. R.K. Chawla, (2011) 15 SCC 449, the Supreme Court held:

“Section 32 of the [Advocates] Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit anyone to appear in a particular case even though he is not enrolled as an advocate.”

“There is a distinction between the right to appear on behalf of someone, which is only given to enrolled lawyers, and the discretion in the court to permit a non-lawyer to appear before it. Under Sections 29 and 33 of the [Advocates] Act only those persons have a right to appear and argue before the court who are enrolled as an advocate while under Section 32 of the Act, a power is vested in the court to permit, in a particular case, a person other than an advocate to appear before it and argue the case. A power-of-attorney holder cannot, unless he is an enrolled lawyer, appear in court on behalf of anyone, unless, permitted by the court under Section 32 of the Act, though of course he may sign sale deeds, agreements, etc. and do other acts on behalf of someone else, unless prohibited by law.”

In view of what is mentioned above, if you are not an advocate, you can appear on behalf of your wife only with the permission of the court and the court may ask you and/or your wife to explain the reasons as to why a non-advocate should be permitted to appear on behalf of her. If justifiable reasons are given, you may be permitted by the court to appear on behalf of your wife to represent her. But, it is also possible that instead of permitting you to appear in court on her behalf, the court may give the free assistance of some advocate as legal aid.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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