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A wife and her husband had entered into a mediation agreement to settle the dispute on who should have the permanent custody of the child. The Wife, however, approached the Family Court alleging that her consent to the agreement was not free as it was obtained by playing fraud on her. The husband filed an application before the same Court summoning the lawyer as a witness, and the wife approached the Hon’ble High Court of Kerala opposing the order of the family court which admitted the application.
Justice CK Abdul Rahim and Justice TV Anil Kumar heard the matter, and they upheld the family court’s order which permitted summoning of the lawyer as a witness on this issue. The questions before the court with were: 1) Whether summoning the lawyer of the opposite party could be illegal? 2) If summoning is permitted, whether it would contravene section 126 of the Evidence Act?
The Court observed that section 126 did not bar a lawyer from being a witness in the case. The provision deals with the privilege of communication made between a lawyer and his client, and it covers only the professional communication. So far as the disclosure of information concerned, it is presumed to be given when a lawyer’s client consents to such disclosure. When the client himself seeks to summon his lawyer as a witness, the former’s consent is presumed to be given.
On the other side, if the opposite party summons the lawyer as a witness, the position is different. Justifiable circumstances must exist to admit the lawyer as a witness in a case. The lawyer has to maintain the confidentiality of the information communicated to him during the course of engagement with his client, and even after the cessation of such engagement. Nonetheless, the information should only be professional to enjoy the privilege under section 126 of Evidence Act.
The High Court said that there were no citations that shed light on the ratio decidendi to hold that the lawyers of the opposite party could not be summoned as a witness, because the protection is confined to professional communication.
In the present case, the court said that it is imperative to ascertain the essential facts to summon the opposite party’s lawyer as a witness. Additionally, this does not contravene section 126 of the Evidence Act. The essential facts include whether the client, having been explained the terms and conditions, signed in the lawyer’s presence. This has no relevance to the professional communication between the client and her lawyer, and therefore, such information is necessary for the family court to settle the disputes. The Court did not fail to take the other angle which might cause embarrassment to the lawyers in the event of them being often summoned in various cases.
In order to avoid such embarrassment, the Court held that the lawyers could be summoned only to ascertain the essential facts, and not because of mere requests to summon the lawyer as a witness. Whether the lawyer should be summoned as a witness is a question that would depend on the facts and circumstances of the case. The Court would exercise necessary prudence to comprehend if summoning the lawyer is inevitable and significant in a case. Where there is other evidence available, the court would not permit summoning the lawyer of the opposite party to be a witness.
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