The Bombay high court has held that there is “no legal lacunae” in filing of a divorce petition through a registered power of attorney (PoA) holder.

2)

the functioning of the family court is governed by the Code of Civil Procedure (CPC).

“A PoA is an authorised person through whom the pleadings can be duly made and verified under the procedure contained in the CPC and since it is obligatory on the family court to follow the Code, such a mode of presenting an application before the court and its verification is duly permissible,”

3) file appeal in HC against dismissal of your divorce petition by family court 

Normally POA is not allowed to file for divorce on any ground on behalf of the other.Almost power of attorney holder can appear through the proceeding and only on couple of hearings if needed original petitioner or Respondent have to appear before the court of law. This is the legal position 

1. It is incorrect decision by the court to dismiss the divorce case and also to reject the POA deed.

There are various supreme court decisions to accept POA deed in favor of the power agent to represent the case on behalf of the petitioner/principal.

You can prefer a revision against this decision before high court.

2. Not necessary, the vakalatnama along with the power agent's presence shall be sufficient

3. You can approach high court with a revision petition against the decision of the family court.

1. POA is allowed through various Court judgements,

2. not necessary, and even the lawyer can represent you,

3. approach the High Court by way of filing a writ petition,

dismissing the petition is Rigid

First of all, in divorce case, personal appearance of party dose not require. And POA holder duly authorize to file divorce case.

But you were allowed only when, you had filed it as POA holder. After filing, you cannot be replace with petitioner. Still, case could not have dismissed for default when advocate was present.

File revision against the dismissal.

there is nothing wrong in the Family Court entertaining an application even though it is filed through power of attorney holder.

yes vakalatnama is filed in front of judge i.e., at the time of the proceedings advocate can submit the vakalatnama to judge and it comes on record.

You may submit some judgment which says that  poa is allowed in family cases and there is no bar. Please ask your advocate there are judgments of High court on this

1) POA is allowed to represent in divorce cases to the limited purpose of representation

2) Yes for the first time alongwith an application to represent you.

3) Need  to file appeal before high court

It's totally allowed and judge has erred in law. Even vakalatnama can also be given through lawyer if required and no need to be given in person. You can apppeal against the said order

Dear sir,

If in india you can give power of attorney to your father for presenting pleadings and documents relied for the case on your behalf but for the sake of appearance as witness in the case your presence will be required both for examination in chief as well for cross examination.

No illegality in filing of divorce plea via PoA: HC

The Bombay high court has held that there is “no legal lacunae” in filing of a divorce petition through a registered power of attorney (PoA) holder.
In a ruling on April 6, a single-judge bench of Justice Bharati H Dangre quashed and set aside a Pune family court’s order of January 1, 2018 that rejected the prayer of an Indian working woman, currently residing in the US, to file a petition for mutual divorce on her behalf through her father and PoA holder.

Justice Dangre relied on a March 28, 2012 judgment by the high court, which held that in the light of advanced technological development, physical presence of the parties even at the time of allowing the petition by mutual consent, is not mandatory. The high court then held that physical presence of both the parties is generally asked and is necessary to verify identity of the parties and to confirm their consent, but certain peculiar circumstances like the inability of one of the parties to remain present due to practical difficulties, such as job, leave, visa, cannot be overlooked.
“There is no illegality to solve such difficulty by adopting novel and available ways by use of advanced technology of communication and new scientific method,” the high court said in the cited ruling.
Justice Dangre referred to the impugned (under challenge) order and observed that the family court failed to apply any legal provisions to the facts in hand. “It is unfortunate that the learned judge of the family court also did not refer to any law on the said aspect,” the bench observed. The bench pointed out that the functioning of the family court is governed by the Code of Civil Procedure (CPC).
“A PoA is an authorised person through whom the pleadings can be duly made and verified under the procedure contained in the CPC and since it is obligatory on the family court to follow the Code, such a mode of presenting an application before the court and its verification is duly permissible,” the bench said.

normally POA is not allowed to file for divorce on any ground on behalf of the other.

Your appearance is Not necessary.

You will have to approach High Court since your petition is dismissed in district court. The judgement will have to be looked into to take a proper legal opinion and further legal action.

1. Well, a POA holder can very much represent the litigant and the restrictions , if any, exists that appears at the time of giving testimony in person which only the litigant can give and the POA holder can not substitute it.

3. So the order of dismissal is bad in law and hence you can prefer an appeal in the high court.

4. There is no point of filing a restoration petition in the same court.

For you all questions below is the answer:

While you were present in India, and was making planning to leave: 

Step 1: Filing for a Power of Attorney

A power of attorney for divorce can be filed either if you are planning to leave the country or you are already out of the country. If you are planning to leave the country, write down the terms of POA [Simple POA] on a 100 Rupees Stamp Paper.

Step 2: Visit the Office of the Registrar

Depending upon where you are residing, go to the office of the registrar or the office of sub-registrar in your residence. Apart from the POA holder (to whom the POA is being transferred), this process requires you to have two witnesses, who are physically present. The witnesses could be anyone from your friend or family.

Step 3: Supporting Documents

While you and the witnesses present before the Registrar, make sure you carry the following documents self-attested:

1. An Address Proof
2. Aadhar Card

As there are no published documents for this process, it is best to carry all government documents that you have, in original and at least two photocopies. The normal process requires the 

Step 4: Concluding Formalities

The registrar is supposed to click a photo of you, the POA holder and the witnesses. Once the process is complete, the Registrar keeps a copy of the POA for records and provides one to you with a registered stamp (Registered Power of Attorney).

Not present in POA; NRI with Indian Passport-

However, if you are not physically present in India, the simple POA is to be attested by the Indian Embassy or Consulate in your residence. The Embassy will sign it and send it to the POA holder in India, via registered post. Once received, the POA holder is required to visit the office of the Sub-Divisional Magistrate with the documents. The POA holder should carry the following documents with himself:

1. An Affidavit of Rs.100 with the POA holder’s swearing of his identity. This might require a nominal stamp duty.
2. The Envelope in which the POA has arrived from the Embassy.
3. Passport Photocopies of the Executant.
4. Documents to prove the relationship between the POA Executant and the POA Holder.

It generally takes up to 15 days to process the POA. Once stamped by the SDM, it becomes a registered POA.

- in the case of Mohanan v. Ajitha , A Bench comprising of Justice A.M. Shaffique and Justice Ashok Menon of the Kerala High Court on March 19, 2019, , has dissolved a marriage by holding that a petition seeking divorce under Section 13 of the Hindu Marriage Act, 1955, can be filed through a power of attorney.

- As per the provision under the Code of Civil Procedure , a petition can be filed through a power of attorney holder.

- The provisions of CPC squarely apply to matters that are entertained by Family Court .Hence

1. Power of Attorney is allowed in divorce case, but not applied in Mutual divorce case .

2. No.

3. You should approach High Court for challenging the said passed order of the family court. 

Yes it is true due to the peculiar nature of the divorce proceedings tha husband and wife have to appear in person. They can skip a few dates afterwards though.

Yes it is necessary.

File a recall application before the principal judge family court for restoration of the case.

1. See you have given duly signed vakaltnama and power of attorney after that matter cannot be dismissed for the default it is wrong you can file for restoration of same or can appeal before the high court.

2. No it is not necessary a vakaltnama to duly signed can be give to the Advocate.

3. You can approach high court to set aside the order and restore the matter. Though restoration is possible before same court also as it is dismissed for default .

1. Family Courts Act is a source of grave hardship for litigants in states where the courts are strictly enforcing Section 13 of the Act. Be that as it may, POA is allowed in divorce cases but your strategy was flawed. You ought to have appeared personally to file the vakalatnama and brought the POA on record.

2. Now the remedy is to approach the High Court to restore the petition. 

The Vakaltnama was wrongly rejected and you have a good case for restoration.

Personal presence of party is not necessary for filing vakakatnama 

lawyer can file vakakatnama given by client 

Due to the peculiar nature of the divorce proceedings tha husband and wife have to appear in person. That is why the court has asked for your presence. It is a rule.

Try writing all these to a judge, address him and write

Family courts will ask for the presence of the contesting party for the first time to appear in person and file an application U/s.13 of Family Court's Act alongwith the vakalatnama.

 In your case, since you are abroad you, as you cannot represent in person you can specifically mention the same thing in the application.

The appearance of the person is a procedural part and it is the discretion of the Court to take / refuse.

You always have option of challenging the order of Family Court if it goes against principles of natural justice. 

You were advised to prefer a revision petition before high court seeking to set aside the trial court order dismissing the vakalatnama for the reasons stated therein.

You may discuss with your advocate and proceed as per the advice received. 

So advising you file revision against the order of family court.

Dear Sir,

There is no necessity to file a vakalatnama ,in person in front of a judge as you have also give power of attorney to your mother.

If in india you can give power of attorney to your mother for presenting pleadings and documents relied for the case on your behalf but for the sake of appearance as witness in the case your presence will be required both for examination in chief as well for cross examination.

Your motherr can appear as your witness for himself not for you and you only have to appear for yourself in the Family Court for giving your evidence.

Vakalatnama is a written document submitted before a court by a lawyer/solicitor/advocate/counsel declaring that his clients have authorized him to represent them in a legal dispute. Vakalatnama is also referred to as 'Vakil Patra' with the abbreviation 'VP

The Vakalat is valid till the end of the case. Once you give a Vakalat to an Advocate, it means that the Advocate can act of your behalf till the case gets over. In case you don't want to continue with that Advocate, you can ask the Advocate for change of Vakalat and you can engage an Advocate.

Your Lawyer can file vakakatnama. Vakalatnama is a kind of power of attorney which is signed by a client in order to allow the lawyer to represent him legally before the court of law. 

1. Judge cannot dismiss the petition on default if you have given Vakalatnama to your advocate to appear on your behalf.

2. You should go for revision petition in High court against order of dismiss the suit on default.

3. Judge have misused his power to dismiss the suit. You should go for revision in High court.

1. Family Courts Act is a special legislation which prevails over general legislation.

2. Your approach is sound for general law but it is flawed and a recipe for disaster for a special legislation like Family Courts Act.

Court can't

You can get the same restored in the family court itself if it's dismissed for default. The same judge has power to restore it 

You should in appeal raise the plea  that lawyer had sought to file vakalatnama and POA but judge refused to consider it 

affidavit of lawyer should be enclosed 

Respected sir ...

Here you have two options the first one is you have to file an application for the restoration in the same court menteniong the ground You can get the same restored in the family court itself if it's dismissed for default. The same judge has power to restore it..and the second one is  you have options to approach the appellate authority that is High court ..

Thank you

1. This is how the orders are written in family courts.

2. I told you that in Family Court the vakalatnama has to be taken on record only if the petitioner/defendant himself appears.

3. I have challenged the vires of Section 13 of Family Courts Act in Rajasthan High Court but unless the provision is struck down it will be enforced by the courts.

4. Go to High Court with a prayer to restore the petition. No need to contend that you had given vakalatnama. If the HC restores the petition then appear personally along with your lawyer to file the vakalatnama.

1. You may Attach the signed vakaltnama and notary with the petition showing that  you signed it though was not taken on record , your mother and lower court advocate may also make an affidavit for same.

1. In Family Court on the first date of appearance unlike civil court physical presence of the party is mandatory. 

2. If POA holder was present in the next occasion unless the POA was found to be defective, dismissal of the suit was bad.

You don't have to go to high court for this. 

The remedy for this is that you file an application under order 9 rule 9 cpc seeking to restore the case which has been dismissed for default. 

You should remember that once an order was passed on the previous day,  the court will not entertain any  vakalatnama on the next day without following the proper procedure. 

Probably your case was dismissed for default because of your absence before court and there was no representation on your behalf. 

Hence without ascertaining background facts no  further  concrete opinion can be rendered 

Your advocate not present on hearing date, so case dismissed. If your advocate was present and only due to your absence, case dismissed than court has committed grave error. 

Petitioner cannot be replaced through POA in middle of case. 

Vakalatnama may have presented by advocate in court if not presented than affidavit of advocate will submit why he not presented vakalamana.

Your advocate must have been late on that day for giving POA. 

You should just make an application in family court itself for restoration of Divorce petition.

This cannot be done. In a family court you have to be present initially.  I have already stated this. Therefore ask the hc to consider your appeal and give you another chance.

- It is wrong to dictate that vakalatname can be filed in the presence of litigant, as it is the document through which a lawyer get authorisation from his client. 

- You should produce certain documents as a proof of appearance before the court of your lawyer or your mother. 

- If your lawyer has appeared on the date of hearing , then he can file an affidavit for the same before the High court.