• RCR petition with POA

Hello Honourable Advocates Currently i live abroad.Was diagnosed with potentially life threatning illness in January. Came back to india and got treated. Looking at my illness, My wife has left me with my 6 years old child citing that i had an affair. This is absolutely false. She is asking for mutual divorce and saying that she wont take a penny from me. I asked her to show me proofs of my affair but till date she has not been able to show a single proof. That way i am sure even if she files for divorce, it wont stand as there was no affair etc. Infact i had caught her affair 3 years back and forgiven her. She stole my passport so that i wont travel back. Fortunately i got better and then i took out duplicate passport and came abroad without informing her. and she is back in India staying at her parents house and constantly harassing me to give her a mutual divorce.The only reason i want her back is because i want to live with my SON. Also i am sure most of these crimes are perpetrated by her parents. Our marraige was solemnised under Special Marriage Act. I want to file RCR in court with POA to my father so that he can file the petition in court. On enquiry we came to know that the party filing the restitution needs to be present in court initially and then the case can be carried forward by POA. Is there any alternative to this requirement and if yes then what?.. I wont be coming just to file the case. Does honourable court allow the POA for filing the petition.Are there any cases where court has allowed such a thing.
Asked 7 years ago in Family Law
Religion: Hindu

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9 Answers

Order III Rule 1 of the Civil Procedure Code as follows :

ORDER III :

1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person

2) In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

3) it is better you come down to India to file RCR petition to obviate legal complications at later stage

4) delhi high court has held he Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their

principal in all other cases. The attorney can also act in matrimonial cases as

per instructions of their principle. The Court can take necessary precautions

to prevent frauds being perpetuated on it but unless the Court smells some kind

of fraud being played with it, the Court should normally recognize the act of

the attorneys.

Ajay Sethi
Advocate, Mumbai
95208 Answers
7609 Consultations

5.0 on 5.0

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 05, 2008

Date of Order: September 19, 2008

CM(M) 1030/2008

19.09.2008

Mr. Vinay Jude Dias ...Petitioner

Through: Mr. Sandeep Sethi with

Mr. Anshu Mahajan and

Mr. Vikas Aggarwal, Advs.

Versus

Ms. Renajeet Kaur ...Respondent

Through:

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the

judgment? Yes.

2. To be referred to the reporter or not ? Yes.

3. Whether judgment should be reported in Digest ? Yes.

JUDGMENT:

1. The petitioner is aggrieved by an order of learned ADJ dated

25th August, 2008 whereby in a Divorce Petition by mutual consent filed by the

petitioners, the Court directed personal appearance of both the parties for

purpose of its satisfaction regarding an inquiry under Section 10(A) of the

Divorce Act.

2. Notice of the petition was accepted by the respondent in the

Court and respondent supported the petition and wanted the petition to be

allowed. Thus, the Court has only to examine whether the personal appearance of

the petitioner before the Court below was necessary in order to obtain divorce

with mutual consent under Section 10(A) of Divorce Act.

3. In the present case, the special power of attorney in favour of

one Mr. Lal Babu Tiwari was executed by the petitioner (husband) to appear

before the Court and testify about the contents of the petition. The petitioner

has signed the petition before Indian consulate High Commission of India in UK

under Section 3(2) of the Diplomatic and Consular Officers (Oaths and Fees) Act,

1947 under which the documents do not require any further evidence.

4. The learned ADJ relying on Janaki Vasudeo Bhojwani Vs. IndusInd

Bank Ltd. AIR 2005 SC 439 wherein Supreme Court had held that ?a general power

of attorney holder can appear, plead and act on behalf of the party but he

cannot become witness on behalf of party. He can only appear in his own

capacity. No one can delegate the power to appear in witness box on behalf of

himself?, considered that the attorney cannot depose in the Court to satisfy the

inquiry as required under Section 10(A) of Divorce Act.

5. There can be no dispute that the attorney of the petitioner can

appear in the Court on behalf of the party and do the act as specified in power

of attorney. An attorney is not an incompetent witness. He can appear in the

Court and depose in the Court as a witness in respect of facts which are in his

knowledge. He cannot depose in respect of the facts which are not in his

knowledge and knowledge of which has been derived by him from principal without

witnessing the facts himself. However, if an attorney has witnessed all those

facts himself which were also witnessed by the principal, an attorney cannot be

told that he cannot appear in the witness box and depose in the Court in respect

of the facts known to him. Facts which are within the special knowledge of

principal and are not in the knowledge of attorney can only be deposed by the

principal. Whether the parties were married on a particular day, is not a

private act of the parties. Marriage is normally a public act in this country

and evidence can be given by anyone who has knowledge of the fact. Whether the

parties are living separate or not is also known to other people associated with

the parties and is not something secret. Similarly, for how long parties were

living separate can be deposed in the Court by any person who is aware of the

facts. If an attorney aware of these facts and can answer the questions of the

Court, the attorney cannot be told that he is not a competent witness or his

statement would not be recorded. Similarly an attorney, on the basis of

instructions/directions given to him, can answer the queries, if there was any

possibility of parties patching up and living together or the marriage has

broken down irretrievably. An attorney has to be allowed to appear in the

witness box and make statement. The Court may reject that part of his statement

which is based on hearsay or which he has no personal knowledge. But he cannot

be prevented from appearing in the witness box and deposing and answering the

queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo

Bhojwani (supra) wherein Supreme Court had not debarred an attorney from

appearing in the witness box but the Supreme Court has stated the facts which

are only in the knowledge of the principal, about those facts attorney cannot

testify in the Court.

6. This Court in Neelima Chopra vs. Anil Chopra 1986 (11) DRJ 188

held that if both the parties, by way of affidavits or through counsel, state

that they are married, and are able to produce proof of the marriage and that

they have been living separately and have not been able to live together for the

prescribed period, then there can be no reason as to why the Court should not

record its satisfaction as envisaged under Section 13-B(2) of Hindu Marriage

Act, despite the fact that parties had not appeared in person and pass a decree

for divorce.

7. The Division Bench of Calcutta High Court in Annalie Prashad vs.

Romesh Prashad AIR 1968 Calcutta 48 had made following observations :

?3. In our opinion, neither of the above two reasons can be sustained in law.

The Special Marriage Act by Section 40 attracts the Code of Civil Procedure

subject, of course, to the other provisions of the said statute and to such

rules as the High Court may make in that behalf. The learned trial Judge does

not say that there is anything in the statute or in the rules, which would

conflict with the view that affidavit evidence would be permissible, unless we

agree with him that the Act, having prescribed that the parties should be heard,

would necessarily require their personal appearance or presence before the

Court. We do not, however, think that that is the consequence of the words

``hearing the parties'` and, accordingly, the reason given by the learned trial

Judge in that behalf cannot be accepted We are also unable to agree that, in a

case of divorce by mutual consent, affidavit evidence should be excluded on the

ground that in such a case, it is desirable that the parties themselves should

be present in Court. In the premises, Order 19 of the Code of Civil Procedure

would be attracted by the above special statute as part of the Code and would

not be excluded either expressly or by necessary implication.?

8. Where the parties are living far away from the jurisdiction of

the Court competent to dissolve the marriage, the parties after filing their

affidavits can appoint attorneys to act on their behalf. Attorney is competent

to act on behalf of the principal on the basis of power of attorney executed by

the principal. The Courts have been allowing attorneys to file the petition, to

withdraw the petition, to carry on proceedings in the Court on behalf of their

principal in all other cases. The attorney can also act in matrimonial cases as

per instructions of their principle. The Court can take necessary precautions

to prevent frauds being perpetuated on it but unless the Court smells some kind

of fraud being played with it, the Court should normally recognize the act of

the attorneys.

9. I therefore allow this petition. The order of the Trial Court

insisting on the personal appearance of the parties is set aside. The attorneys

are permitted to make statement before the Court below

Ajay Sethi
Advocate, Mumbai
95208 Answers
7609 Consultations

5.0 on 5.0

1. Yes, a suit including RCR can be filed and conducted by your father on the basis of POA .

2. So you can execute and send the POAa from abroad after notarising it from your present place of stay.

3. However do note that since RCR deals with marital dispute which only the concerned spouses are privy to, at the time of evidence you have attend the court to record your witness.

4. Except this your father is competent enough to take care of day to day affairs of the case.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1. Filing of RCR is of no practical use.

2. Even if you get favourable order from the court directing her to join you, nothing will happen to her if she refuses to comply with the court order and refrains from joining you.

3. The ideal situation for you shall be to file a child custody case to get the custody of your son who is more that 5 years old.

4. If you still want to file the RCR petition, you can get the petition sent to you by your lawyer and get your signature on the affidavit of the plaint notarised by the appropriate authority of the local Indian Consulate.

5. Similarly you can also execute your POA staying abroad and getting the same notarised by Indian consulate as stated above.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Yes, an RCR petition can be filed by your father based on POA given by you since you are staying abroad & courts in India do grant permission for filing of marriage petition .

2. Please engage a family lawyer of the area of your residence in India or where both you and your wife got married , get a POA suitably drafted and get it notorised by notary or embassy abroad .

Sushil Jha
Advocate, Patna
283 Answers
5 Consultations

5.0 on 5.0

Hi

The HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH in case of Kanwalijeet Sachdev vs State Of U.P. Thru Additional Prin.Judge Family Court & Anr has permitted filing of petitions through power of attorney.

The Hon’ble High Court of Punjab and Haryana in the case of Navdeep Kaur (supra) also considered the provision of Order III, CPC which deals appearances etc. by recognized agent or by pleader and came to the conclusion that in case the court does not doubt the genuineness of the contents stated in a joint petition for divorce by mutual consent and one of the parties are represented by an attorney, who is father of the party concerned, and thus, cannot be expected to act against the interest of his son, such a petition ought not be rejected merely on the ground that one of the parties does not appear in person

Hope this information is useful

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

1. you can file such petition by appointing your father as your agent. recognised him to appear on your behalf.

2. when court summons for recording of statement or adducing evidence with affidavit then your appearance is necessary.

3. living abroad is a legitimate ground for non appearance. it is a civil case and petition can be filed by the agent or authorised person.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Strictly speaking it is the discretion of the judge of family court to allow a petition to be filed through POA or not.

In general, the courts do not entertain any petition to be filed through POA before the family court for any reason and insist the parties to be present since the purpose of family court is to pacify the warring parties for reconciliation between them through mediation and alternate disputes resolution for a compromise and amicable settlement.

So you may try your luck.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

1. If you only want your son back then you may file a petition for child custody under Guardians and Wards Act against her. Remember that RCR is filed to only show the bona fide conduct of the husband and carve out a future defence for false cases which the wife may file against the husband. Unless she wants to get back with you no court can coerce her to return.

2. On the first hearing the petitioner has to personally remain present in the court but he can file an application for exemption to the court. If the petition has been filed through POA then the petitioner has to appear only on the date of his witness deposition.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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