• Is it possible to sign vakalatnama and fight DV case field by wife from USA in India court

Hello legal experts team,

I am in a situation and need information. I am temporarily posted in USA but I am a citizen of India. After I filed for Divorce case against wife she filed DV case against me in court in India. Currently I am in USA and cannot travel back to India for now. I had received the DV case via email while I am in USA, but I have sent by courier my signed vakalatnama and also my response to DV case including initial evidences denying all allegations. I have duly notarized all documents form Public Notary in USA.

However the opponent lawyer is creating chaos in India court and not letting my vakalatnama and response sent via courier to be accepted. They are insisting to produce as proof some sample old judgements/ citations that can prove below points so that my response and vakalatnama can be accepted by Magistrate in my absence in India. Can anyone guide me on below points:

1) Can my lawyer legally fight my case in India without any issues even though I am not physically present in India and sent notarized response via courier ? Are there any supporting previous judgement /citation links that you can share for reference ?

2) Can my lawyer legally submit in India court the vakalatnama that is duly signed by me in USA and notarized by Public Notary in USA ? Are there any supporting previous judgement/citation links that you can share ?

Thanks
Asked 4 years ago in Family Law
Religion: Hindu

First answer received in 30 minutes.

Lawyers are available now to answer your questions.

15 Answers

In Rajesh Sharma & ors vs. State of UP & Anr., the Supreme Court held that Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial. The same for done with respect to 498a cases, but it can be applicable in DV too, since it also involves matrimonial discord only.

So, your lawyer can seek exemption on most dates, but you'll have to appear during important dates, where personal appearance cannot be dispensed with.

Vakalathnama doesn't need to be notarised and he can use the same, without saying anything about it in court as Vakalathnama should only be signed in the presence of the counsel who verifies your signature.

Feel free to call.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

1. The objection of your opponent lawyer has no basis at all. If the vakalatnama has been duly executed and signed by you then your lawyer to receipt of it through courier can appear in the case and represent you. Similarly your objection can be notarised in USA and sent to India to be filed in court. This is very much valid.

2. There is absolutely no requirement for citing any decision as if your opponent is opposing it then let him cite the decisions. There is no legal bar in doing so.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Another option is you can give POA to your family members in India who will sing all the petitions to be filed in court on your behalf in future to save time and costs.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

You can send a signed vakaltanama from courier.You can get your sign notarized so there is not objection to it.

And further signed by the indian consultate in country you are residing.

There is no requirement of any judgement there are lot of cases where court held no personal.appearance on every hearing required.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) Non-Resident Indians (NRI) settled abroad may want to have divorce by way of mutual consent (uncontested) or uncontested divorce in India without coming to India. In the past, this was not possible. However with the change in times, the courts have recognised that the persons were settled abroad are sometime not able to come to India to file divorce cases and be present here at all times. The courts have thus become more flexible in their approach while dealing with cases of Non-Resident Indians (NRI).

The recommended approach is that Non-Resident Indians (NRI) should come to India and contest their own cases while being present in India on specific dates given by their lawyers. This means they do not have to be present in India throughout the pendency of litigation. Generally such dates in divorce cases are few. However, in extreme circumstances if the Non-Resident Indians (NRI) is unable to come to India, divorce cases can be filed through power of attorney holder. Such power of attorney holder in a divorce case should be a close relative so that courts are more open to entertain petition filed through power of attorney holder.

In contested divorce matters, the person who is a party to divorce still has to come to India at least once to get divorce. This is so because the courts have the view that power of attorney holder is just a representative or an agent of the principle (the one whose party in a case). So an agent cannot be personally aware of what has happened with the principle and for giving evidence person knowledge of all the facts and circumstances is a must.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1. In the criminal cases one has to personally appear before the court on the first hearing, sending a vakalat to the advocate in criminal case is not sufficient.

Moreover, the counter can be filed only after you have appeared before court at least once.

The summons received by email can be even denied by you instead of getting trapped by your own mistake.

It was not necessary for you to send vakalat to your advocate when you were not properly served with the summons.

Your lawyer could have argued that he will make you appear on the next date of hearing.

Instead he could have filed a petition along with vakalat under section 205 seeking to dispense with your personal appearance citing your professional occupation at abroad.

You cannot succeed with half knowledge lawyer.

Legally speaking he cannot submit the vakalat without your presence in the crimninal court, this is acceptable in the civil cases but not allowed in the criminal cases.

Ask your lawyer to look for citation supporting his action

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

1. If a person is required to be out of India for work purpose and he receives the case papers through email, then I don't see any reason why his personal presence is required in India for defending him in a court case

2. You have rightly signed vakalat nama amd your written statement before a public notary in US and sent it to your lawyer by courier for being filed in court

3. That's the most logical thing one can do in such a situation

4. Why a judgement is being insisted for something which is so common sense and basic is beyond my comprehension

5. The opposite party lawyer cannot raise any such weird objections

6. Law is based on common sense and is not too hypertechnical

7. Your lawyer can without any issues fight the case for you using the vakalat nama you sent him

8. Court will not sustain any such idiotic objections raised by the opponent lawyer

9. You personal presence in the matter will be required only at the time of deposing in court for your cross examination, by opponent party, to any evidence which you will file in the case

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

1 yes you can fight the case without you being physically present in india. If you have any of your family members here then you may also issue power of attorney for coirt case to contest the cases. The remedy which are available in DV case is all civil in nature and there is no criminal punishment prescribed under DV act unless someone violates the order of the court. There are several case laws that cases can be represented by power of attorney holder.

2 yes your lawyer can submit vakalatnama executed in USA duly notarised and contest the case on your behalf. You don’t need any judgment. But there are several judgments to this effect.

Jai Bansal
Advocate, New Delhi
198 Answers

5.0 on 5.0

Yes very much you can notarise from USA and send and all petititions also can be submitted in same way.

Appearing in Domestic Violence case is not mandatory because it is purely civil in nature and magistrate should not insist upon clients appearance. There is a judgement in support to it.

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

1) vakalatnama signed by you should be attested before indian consulate

2) your vakalatanma can be accepted by magistrate

3) your reply in DV case if attested before indian consulate can be accepted by court

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. To contest a DV case the husband does not have to appear in the court. He can simply sign the vakalatnama in favour of his lawyer to contest the case, whereupon the presence of lawyer in the court will suffice on every hearing except when the evidence is to be recorded.

2. I fail to understand how the opposing lawyer is not letting your vakalatnama to be taken on record. It has never been the law that for the vakalatnama to be taken on record the client has to be present in the court. I have for years now been filing the vakalatnamas of my foreign clients without them appearing in the court. The judge appears to be a dolt. If he does not accept the vakalatnama then you may move the High Court through a revision petition to seek binding directions to him.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

not possible to represent your DVC case through your GPA holder and representation of criminal case by GPA hodler is different from case to case. In all cases, it is not possible by GPA holder. The GPA holder must able to know the facts of the case, and he can't say the facts, unless he is eye witness to the incident.

Konda Srinivas
Advocate, Hyderabad
211 Answers
2 Consultations

Not rated

Answer: You can do the following:

a. Send your POA to somebody to appear;

b. The POA should be notarized;

c. Best is to engage services of a lawyer and he/she can represent you in court;

d. The vakalatnama can be signed by you in USA and notarised in USA and forward the same to your lawyer;

e. Your lawyer can also seek time since you are not available by seeking adjournments;

f. Also, make sure that you will be able to appear in the court sometime in the next 3 months or earlier than that.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. The correct procedure under such circumstances is that you shall have to get the Vakalatnama and the Written Reply to the DV application signed before and notarised by the appropriate officer of local Indian Consulate and return to your Indian Lawyer for filing. before the Court. Indian consulate is the extended part of our Country where the Indian Law is enforceable and any document notarised by the said appropriate officer of Indian Consulate will be accepted by any Court in India.

2. No other method like getting the Vakalatnama notarised by foreign Notary Public will not be accepted by Indian Courts. Get the same notarised by the qappropriate officer of your Indian Consulate.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

Hi,

You lawyer through that vakalatnama will get full rights to defend you on your terms and conditions.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer