On 15 January 2019, the High Court of Kerala, in Reshma Majeed v. Shameer Babu (OP (FC) No.228/2018), held that the lawyer for the opposite party may be summoned as a witness where such lawyer’s testimony in Court is absolutely essential and inevitable, subject to the Court ensuring that the answers given in evidence by such lawyer do not offend Section 126 of the Evidence Act. 

The Petitioner and the Respondent were married and have one minor child together. Pursuant to initiation of divorce proceedings before the Family Court, the Respondent filed an Application seeking permanent custody of the minor child. During the pendency of the Application, the parties settled all issues involved therein along with other litigation proceedings between them, in mediation proceedings. The parties signed a Mediation Agreement recording the terms of the Agreement regarding permanent custody of the child and related aspects. Accepting the Mediation Agreement, the Family Court disposed of all litigation pending before it, relating to the parties. 

However, the Petitioner, thereafter, filed an Application before the Family Court stating that the Mediation Agreement did not reflect the true consensus arrived at between the parties and that the same was a case of fraud by the Respondent. The Petitioner stated that she signed the Agreement without understanding the contents thereof and that the same was never explained to her by the Mediator or the lawyers. She further stated that her lawyer too signed the Agreement mechanically without trying to understand the terms therein.  The Petitioner was examined as PW1 in the said Application. Thereafter, the Respondent filed two Applications – (i) to recall and re-examine the Petitioner as witness, (ii) to summon the Petitioner’s former lawyer as a witness in the proceedings. The Petitioner objected to the same on the ground that the Application to summon the Petitioner’s former lawyer was barred under Section 126 of the Indian Evidence Act, 1872. 

Section 126 of the Act provides as follows: 

126. Professional communications:- No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.

Provided that nothing in this section shall protect from disclosure—

(1) any such communication made in furtherance of any [illegal] purpose,

(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister,[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client.

 Explanation:- The obligation stated in this section continues after the employment has ceased.

 The Family Court passed an Order allowing the said Applications filed by the Respondent. Aggrieved by the said Order of the Family Court, the Petitioner filed this Petition before the High Court of Kerala. 

 The High Court made the following observations: 

1. The Court, upon examination of Section 126 of the Evidence Act, noted that the bar under Section 126 ought not to be mistaken as prohibiting the lawyer of the opposite party from being summoned as his own witness, in cases where his examination is justified by the circumstances. In such cases, the client's right to protection against disclosure extends only to matters communicated for the purpose of as well as in connection with the engagement of the lawyer. The lawyer has a legal obligation to preserve the information, knowledge and communications gained by him during the subsistence of his engagement as confidential and undisclosed, even after the engagement either ceased or discontinued. Going by the strict letter of Section 126, the bar to disclosure applies only to such information and communications that are purely professional and made to the lawyer for effective conduct of the litigation of the party who engaged him.
2. That it appears from the materials on record that, the examination of petitioner's lawyer as a witness in the present proceeding is meant for eliciting certain essential facts in disproof of allegations of fraud, such as whether the Petitioner signed in her lawyer’s presence and whether the Petitioner’s lawyer had explained to the Petitioner the terms and conditions of the agreement before it was signed. 

The Court, accordingly, held as follows: 

 “…The witness, in our opinion, cannot withhold such essential answers claiming privilege under Section 126 of the Act. Such information are very valuable for the decision of the matter in dispute before the Family court and can never be taken as offending the bar against disclosure of the professional communications saved by law. They do not have any bearing or relevance to the matters connected with the engagement of a lawyer for conduct of the litigation…

 …The impugned order of the lower court in I.A. 1833/2018 permitting examination of petitioner's lawyer cannot therefore, be said to suffer from any illegality warranting our interference. Same is the view that we take in respect of order on I.A. 1832/2018 also as we deem it just and proper to give the respondent one more opportunity to re-examine PW1 with respect to the facts he had omitted during her former examination…

 …The court shall be circumspect in summoning lawyers cited as witnesses, whether by their own clients or opposite parties, except when their examination is unavoidable. The request for examination should not be granted mechanically and for mere asking. If a particular matter or information could be effectively proved by other evidence, the courts could certainly decline to order examination of the lawyer to the extent possible. No hard and fast rule, however, could be laid in this respect and it is ultimately what a court informed by prudence and wisdom would decide in a particular case before it, depending on the facts and circumstances of each case…

 …In the case before us, we are fully satisfied that the examination of petitioner's lawyer is absolutely necessary and the order passed by the lower court in this respect calls for no interference. The lower court will ensure when the examination of the lawyer proceeds that the answers given in evidence do not offend Section 126 of the Evidence Act and thus affect the interests of the client…”