• Supreme court citations for POA in mutual consent divorce cases

Has the Supreme Court expressed its opinion on the subject of the Mutual Consent Divorce cases via Power of Attorney?

If so, can anyone share any citations?
Asked 3 months ago in Family Law from Singapore
Religion: Hindu
judgment of Andhra pradesh high court on POA and use of skype in mutual consent divorce cases 

ndhra High Court
Dasam Vijay Rama Rao vs M.Sai Sri on 17 June, 2015
       

  

   

 
 
 HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO             

C.R.P.No.1621 of 2015 

17-06-2015 

Dasam Vijay Rama Rao .Petitioner   

M.Sai Sri . Respondent  

Counsel for the Petitioner: Sri D. Madhava Rao

Counsel for the Respondent: --- 


<Gist :

>Head Note: 

? Cases referred:
1.[2009] 151 Comp Cas 51 (AP)  
2.1995 (3) ALD 341 (DB) 

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO              

CIVIL REVISION PETITION No.1621 of 2015    

ORDER:  
This revision has been preferred by the 2nd petitioner in Family Court O.P.No.1547 of 2014, Family Court, Ranga Reddy District at L.B.Nagar. The sole respondent herein is the 1st petitioner in the above O.P.

The petitioner herein is the husband and the respondent is his wife. Both of them have filed the aforesaid O.P.No.1547 of 2014 under Section 13-B of Hindu Marriage Act, 1955, for dissolution of their marriage performed on 22.08.2010 by a decree of divorce by mutual consent.

The case of the petitioners in the O.P. was that they are both Hindus by religion and faith and got married on 22.08.2010 at Dwaraka Tirumala, West Godavari District, Andhra Pradesh, as per Hindu rites and customs and they initially lived at Jeedimetla, Hyderabad, and later on, in Australia where the 2nd petitioner was employed and that certain differences have cropped up between them, which could not be reconciled in spite of the best efforts made by the petitioners themselves, friends, well-wishers and elders of the families of both the petitioners. The petitioners, all due to incompatibility between them had realized that their marriage has broken down irretrievably and hence, both of them have taken a decision and agreed to have the marriage dissolved by mutual consent. Hence, they filed the O.P. before the Family Court, Ranga Reddy District.

The 1st petitioner in the O.P., who is the respondent herein, has been attending to the proceedings by appearing before the Family Court. However, the father of the 2nd petitioner, who holds the General Power of Attorney (GPA) of the 2nd petitioner/husband in the O.P., filed an interlocutory application bearing SR.No.2216 of 2015 on 09.04.2015 before the Family court to receive the chief affidavit of PW.2/petitioner No.2, duly dispensing with the personal appearance of the 2nd petitioner before the Family Court. The 2nd petitioner has sworn to a detailed affidavit and got it notarized by a notary public of South Melbourne, Australia. That interlocutory application has been returned with a cryptic order dated 09.04.2015, which reads as under:

Petition is returned as not maintainable. It is against this order the present revision is filed.
Since no reasons are assigned why the learned Judge of the Family Court came to the conclusion that the petition is not maintainable, the reasons are solicited. The learned Family Court Judge, Ranga Reddy District, in her communication dated 28.04.2015 addressed to the Registry has set out that the O.P. was moved on 08.10.2014 and it was posted to 09.04.2015 for appearance of both parties after six months and that since the 1st petitioner was present and the 2nd petitioner was not present, the matter was posted to 22.04.2015 and that on 22.04.2015, the counsel for the 2nd petitioner filed a chief affidavit of PW.2, which was notarized in Australia and on that day neither the GPA Holder of the 2nd petitioner nor the 2nd petitioner was present and hence, the same is returned.

Apparently, since the Court could not enquire from the parties about their subsisting consent for granting divorce by mutual consent, the I.A. moved by the 2nd petitioner appears to have been returned on 09.04.2015, but not on 22.04.2015. It would have been better for the learned Judge to have spelt out the reasons for her conclusion.

The respondent/wife herein, who is the 1st petitioner in O.P., was present before this Court. She appears to be fairly very clear that the marriage between her and the 2nd petitioner in the O.P. is required to be dissolved. She does not appear to be having any doubts in that regard. I have also no doubt in my mind that the respondent herein has any second thoughts about dissolution of her marriage with the 2nd petitioner in the O.P. She was also clear that there is no necessity to cross-examine the 2nd petitioner in the O.P. with regard to the contents of the affidavit sought to be filed by him, as the contents are virtually the same as are narrated in the O.P. itself.

From the report of the learned Judge of the Family Court, I could gather that two factors obviously weighed on her mind. One is whether a GPA holder can represent a party in Family Court O.P. and also depose on behalf of his principal.

I had an occasion to consider the question as to whether a power of attorney holder can be examined as a witness in a legal proceeding, while deciding on 15.04.2009 a company case between Smt. K.Padmasree Vs. Lotus Aluminium P. Ltd. , and held as under:

Learned counsel for the Respondent Sri D. Srinivas, placed reliance upon the Judgment rendered by a learned single Judge of this Court in K. BHARATHY, GUDIVADA AND ANOTHER v. AUTHORITY UNDER SECTION 50 OF A.P.S.E. ACT- CUM-LABOUR OFFICER, MACHILIPATNAM AND ANOTHER (1999 (3) ALD 420) and contended that no person holding a Power of Attorney can examine himself as a witness and hence, the evidence brought on record through the Special Power of Attorney holder, viz., PW-1 should be eschewed and since the petitioner has not examined herself, the above petition should be dismissed.

Hence, the question as to whether a Power of Attorney holder can be examined as a witness requires a deeper consideration.

The expression "Power of Attorney" has been defined in the Strouds Judicial Dictionary as an authority whereby one "is set in the turn, stead, or place of another" to act for him. It is generally made by deed poll, but semble, may be by writing unsealed. In the Blacks Law Dictionary; as An instrument granting someone authority to act as agent or attorney-in-fact for the grantor. In The Words and Phrases - Permanent Edition - as: The term "power of attorney" indicates a power or authority under seal. A "power of attorney" is an instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the principal. "Power of attorney" is not contract, but is merely document evidencing to third parties existence of agency relationship and powers of agent. In Corpus Juris Secondum it is stated as; Authority may be conferred on an agent by a written appointment, and if the writing is formal the authority is said to be conferred by letter of attorney and the agent is, an attorney in fact. And in Advanced Law Lexicon as A formal instrument by which one person empowers another to represent him or act in his stead for certain purposes. "Power of Attorney" includes any instrument (not chargeable with a fee under the law relating to Courtfees for the time being in force) empowering a specified person to act for and in the name of the person executing it. American Jurisprudence, noted that, a person may properly appoint an agent to do the same acts and to achieve the same legal consequences by the performance of an act as if he had himself personally acted, unless public policy or the agreement with the principal requires personal performance Mc Nulty v. Dean (154 Wash.

110). It was further noted that, the grant of power is not, however, to be frittered away by very nice and metaphysical distinctions; the object and purposes of the parties must always be kept in view, and, where the language will permit, that construction should be carried out that will support instead of defeat the purposes of the instrument - Holladay v. Daily (19 Wall. (U.S.) 606).

It will be relevant to notice that the donee of a power of attorney, acts on behalf of his/her Principal, hence, the power of attorney is a Special Power of agency, normally, deriving power for the purpose of managing, buying or selling real and personal property or for purposes of carrying on business or for the purpose of securing loans, leases, mortgages and for making investments and for securing insurance cover and also for the purpose of suing and to be sued. Thus, a host of functions, which are otherwise normally liable to be performed in an individual capacity by a particular person, called as Principal, are granted to be performed by another person in the capacity as the agent of such a Principal. This grant of power in writing is what has come to be constituted and recognized as the Power of Attorney. To render the Principal to be bound by all such actions of his agent and with a view to secure the execution of instruments and their sealing, to become lawful and also further to avoid any doubt as to the liability of a donee of a power of attorney, who makes the payments in good faith after the donor of the power of attorney has died or becomes lunatic or becomes insolvent or has revoked the said power, when the fact of such death, lunacy, insolvency or revocation, was not known to the donee at the time of making such payments, the Power of Attorneys Act, 1882, has been made. By granting such power, the donor has notified in rem that he has authorized and granted necessary power to a donee to do all such acts as are required to be performed by him, and when so performed by such donee, the donor, therefore, irrevocably undertakes to ratify all such actions of the donee. Hence, the power of attorney holder can act on behalf of his Principal without any reservations. It would help the Principal to perform all such acts and functions through such an agent, in his own interest.

Section 2 of the Powers-of-Attorney Act, 1882, has dealt with this aspect of the matter in the following manner:

2. Execution under power-of-attorney.-The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the Power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof".

Then, what are those acts and actions, which the holder of a power of attorney can perform?

For this purpose one has to bear in mind the distinction between all such actions, which are liable to be performed by a person in his individual capacity as distinct from those, which are liable to be performed in exercise of a Statutory duty or function or such actions, which are liable to be regulated by a Statute itself.

A Full Bench of the Madras High Court in M.

KRISHNAMMAL V. T. BALASUBRAMANIA PILLAI (AIR 1937 Mad 937), speaking through the Chief Justice Beasley, has clearly pointed out that a power of attorney holder cannot plead on behalf of his Principal in the following words:

"..................and he claimed that the power of attorney was of the same force and validity as that of a vakalat and that, unless it was revoked by formal proceedings through Court, no orders could be passed on the petition. Therefore, by reason of the authority given to him in the power of attorney, he claimed the same right as a legal practitioner who has been given a vakalat; and since the power of attorney authorizes him to plead in Court, it follows that he claims that right; and indeed we are informed that either in these proceedings or in some other, Lakshmana Rao, J. allowed him to address the Court. In view of the claim put forward by the respondent in the affidavit referred to, the Master posted the matter before Gentle, J. for orders and he has referred the matter to us and it has been fully argued here by the learned counsel for the petitioner, Krishnammal, the Bar Council, the Advocates' Association and the Attorneys' Association; and we have also heard the respondent in person.

We may say at once that there is an unreported Bench decision of this High Court directly in point on the first question in C.M.P. No. 498 of 1911, where it was held by Benson and Sundara Ayyar, JJ. that a right to appear in Court for his principal given to a recognized agent by Order 3, Rules 1 and 2, Civil P. C, does not include a right to plead, that it means simply that one can take proceedings to submit oneself to jurisdiction that the High Court has under the Letters Patent and the Legal Practitioners' Act and under Sections 119 and 122, Civil P. C, power to make rules as to who shall plead for parties before the High Court in its original and appellate jurisdiction and in the lower Courts, that Section 10, Letters Patent, makes provision with regard to who alone can plead before the High Court and that others such as recognized agents cannot have the right to plead. There are also two decisions of the Calcutta High Court upon this point, viz. Harchand Ray v. B.N. Ry. Co., (1916) 3 AIR Cal 181 and In re Eastern Tavoy Minerals Corporation, Ltd., (1984) 21 AIR Cal 563. In the former, a recognized power of attorney agent claimed a right to plead in Court on behalf of his principal under Order 3, Rule 1, Civil P.C., but it was held by Jenkins, C.J. and Chaterjea, J. that he had no right of audience; and in the latter ease, a director of a company holding a power of attorney, authorizing him to appear for and on behalf of the company, to conduct and represent the company in the proceedings, claimed the right of audience on behalf of the company and, applying the ruling in the former case, it was held that he had no right of audience. It is plain from these three cases that Rules 1 and 2 of Order 3, Civil P. C, do not give the recognized agent any right to plead in Court on behalf of his principal either in the appellate or Original Sides of the High Court............."

The Full Bench had approvingly noticed the two earlier judgments rendered by the Calcutta High Court reported in HARCHAND RAY V. B.N. RY. CO., (AIR 1916 Cal 181) and EASTERN TAVOY MINERALS CORPORATION, LTD., In re, AIR 1934 Cal 563, in this context. The Andhra Pradesh High Court in HARI OM RAJENDER KUMAR AND OTHERS VS.CHIEF RATIONING OFFICER OF CIVIL SUPPLIES, A.P., HYDERABAD (AIR 1990 AP 340), held as follows:

"5. Both American and English Courts have adopted the doctrine that a non-lawyer may not appear in Court to represent another person. Outside the court-house, non- lawyers in earlier periods of Armerican history freely performed tasks that today would be called the unathorised practice of law. That general pattern still obtains in England and other countries in Europe where there has been never a prohibition against non-lawyers performing such legal functions as giving legal advice or preparing some kinds of legal documents.

13. Now, the Advocates Act, 1961, which is an Act to amend and consolidate the law, repeals the above provisions of the Letters Patent and parts of the Legal Practitioners Act. Section 32 of the Advocates Act uses the word 'appear' while Sees. 29 and 33 use the expression 'Practice'. The word 'Practice' includes both acting and pleading, and takes in all the normal activities of a legal practitioner. Though Sec. 33 of the Advocates Act uses the word 'Practice', we are here concerned with the word 'appear' used in S. 32. A non- Advocate, when he seeks permission to 'appear' cannot, in my view, be permitted to 'address' the Court on the strength of the power-of-attorney. In Sornam's case, while observing that he can 'appear' or 'act' Natesan, J. observed (p. 211).

"As a recognised agent, he can have appearance and he can act; now he wants also to plead the cause before the Court, that is factually to practice the profession of law."

14. Natesan, J, also stated that the Supreme Court in Aswini Kumar Ghosh v. Arabinda Bose ( AIR 1952 SC 369 at

375), approved the meaning given to the word 'practice' by Kumaraswami Sastry, J. in the Full Bench case in Re-Powers- of-Advocates, (1929) ILR 52 Mad 92 : 55 MLJ 551 : (AIR 1928 Mad 1182), to the following effect :--

"the word 'Practice' means appear, act, and plead, unless there is anything in the subject or context to limit its meaning."

15. Therefore the word 'appear' is only one aspect and does not take in the concept of 'pleading' without which; it cannot be equated to 'practising'. In Thayarammas case, (AIR 1937 Madras 937), also it was stated that 'Practice' means drafting, engrossing, filing plaints, Judge's summons, affidavits and generally issuing legal process, and all that a legal practitioner does. Even one isolated act has, in England, been held to constitute 'acting as a solicitor' rendering persons guilty of such conduct liable to be dealt with under Sec. 26 of the Solicitors Act, I860 for contempt of Court (In Re Ainsworth, Ex parte Incoporated Law Society, 1905 KB 103) ......................

16. What the power-of-attorney agent in this case seeks to do is the same as in Tayarammal and Sornam cases -- He wants to be placed in the same position as an advocate; in respect of not merely drafting and filing cases but pleading and arguing in Court. ............... It is clear therefore, that his acts amount to 'practising' the profession of law. In fact, the power-of- attorney is executed in 1987 permitting the agent to file, plead and argue all cases of the principals in future and the deed is not confined to this or any particular case. Though this Court has power to grant permission for non-lawyers to plead/argue cases in certain special circumstances, the present case is obviously not one such. Under the guise of seeking permission in each case, the petitioner is continuously pleading and arguing every case for the principals who are Dal Mill owners^ and in a routine fashion, on the sole ground that the principals have decided never to engage any lawyers before any Court or tribunal. The parties are not seeking permission on any special grounds applicable to this case alone. They obviously want to engage the agent in all cases where normally lawyers should have been engaged. That clearly is hit by S. 33 of the Advocates Act."

In the context of Section 2 of the Powers of Attorney Act, 1882, it is of importance to notice the following statement of law, (made by Full Bench), in Re. The powers of newly enrolled Statutory Advocates under the Indian Bar Councils Act:

"..... I am of opinion that where an Act confers rights to a party in general terms and entitles him to perform more than one function, the cutting down of those rights by a rule would make that rule repugnant to the provisions of the Act. The following observations of Wills,J., in Reg. V. Bird Needes Ex parte - [1898] 2 Q.B 340 = 67 L.J.Q.B. 618 = 14 T.L.R. 384 = 62 J.P. 422 = 46 W.R. 528 = 79 L.T. 156 are in point:

I desire in my judgment to adopt a broad principle which is too clear to need cases to be cited for its justification

- the principle that where a power to make regulations is given to a public body by statute, no regulations made under it can abridge a right conferred by the statute itself."

In fact, the Supreme Court had authoritatively pronounced its disapproval of allowing the powers of Attorney Holders to plead on behalf of their Principals. The Supreme Court in HARISHANKAR RASTOGI v. GIRDHARI SHARMA AND ANOTHER (AIR 1978 SC 1019) has set out as to the undesirable effects that are beset in allowing a Power of Attorney holder to plead. Once again the Supreme Court had set at rest all speculative aspects relating there to in T.C.MATHAI v. DISTRICT AND SESSIONS JUDGE, THIRUVANANTHA- PURAM, KERALA (1999 3 SCC 614), in the following passages:

8. The work in a Court of law is a serious and responsible function. The primary duty of criminal Court is to administer criminal justice. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned. It is not just somebody representing the party in the criminal Court who becomes the pleader of the party. In the adversary system, which is now being followed in India, both in civil and criminal litigation, it is very necessary that the Court gets proper assistance from both sides.

9. Legally qualified persons who are authorised to practise in the courts by the authority prescribed under the statute concerned can appear for parties in the proceedings pending against them. No party is required to obtain prior permission of the Court to appoint such persons to represent him in Court. Section 30 of the Advocates Act confers a right on every advocate whose name is entered in the roll of advocates maintained by a State Bar Council to practise in all the Courts in India including the Supreme Court. Section 33 says that no person shall be entitled to practise in any Court unless he is enrolled as an advocate under that Act. Every advocate so enrolled becomes a member of the Bar. Bar is one of the main wings of the system of justice. An advocate is the officer of the Court and is hence accountable to the Court. Efficacious discharge of judicial process very often depends upon the valuable services rendered by the legal profession.

10. But if the person proposed to be appointed by the party is not such a qualified person the Court has first to satisfy itself whether the expected assistance would be rendered by that person. The reason for the parliament for fixing such a filter in the definition clause [Sec. 2 (q) of the Code] that prior permission must be secured before a non- advocate is appointed by the party to plead his cause in the Court, is to enable the Court to verify the level of equipment of such person for pleading on behalf of the party concerned.

11. V. R. Krishna Iyer, J. had occasion to deal with a similar matter while considering a plea like this in a chamber proceeding in the Supreme Court. In that case, a party sought permission to be represented by another person in a criminal case. Learned Judge then struck a note of caution in the following terms in Harishankar Rastogi v. Girdhari Sharma, AIR 1978 SC 1019 (Para 3) :

"If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the Court may receive counter-productive service from him. Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-informed or blackguardly or blockheadly private representatives fling arguments at the Court. Likewise the party himself may suffer if his private representative deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect for the Court. Other situations, settings and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice."

12. Appellant submitted that he is the duly appointed attorney of the respondent-couple by virtue of an instrument of power of attorney executed by them and on its strength he contended that his right to represent the respondent-couple in the court would be governed by the said authority in the instrument.

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14. Under the English Law, "every person who is sui juris has a right to appoint an agent for any purpose whatsoever, and he can do so when he is exercising statutory right no less than when he is exercising any other right", [videJackson and Co. v. Napper - (1886) 35 Ch. D. 162 at page 172]. But this Court has pointed out that the aforesaid common law principle does not apply where the act to be performed is personal in character, or when it is annexed to a public office or to an office involving any fiduciary obligation, [vide Rayulu Subba Rao v. Commr. of Income-tax, Madras, AIR 1956 SC 604].

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In all these cases what has not been allowed to be done or performed by a Power of Attorney holder is, to seek the right of audience in a Court, while at the same time allowing him to sue or be sued on behalf of his principal. From times immemorial, the right of audience in formal court proceedings is granted in favour of a class of trained professionals, who were known as Pleaders or Lawyers or Attorneys. After the advent of the Advocates Act, 1961, the right of audience in formal court proceedings is liable to be confined only to the professional class of advocates, who are admitted as Members and enrolled as such on the rolls by the Bar Council concerned. Therefore, grant of permission for audience is liable to be confined in favour of such class, but not otherwise.

However, the conventional viewpoint that was holding field was that, a party could enter appearance and solicit the right of audience for himself. Our legal system is not allergic to receive the submissions of a party-in-person. Therefore, a party, whether well versed or not, in legal matters and whether trained or not, can enter appearance of himself and seek to be heard, by a Court. That is not forbidden. To this day, right up to the highest Court of our land, some parties, who are confident of their articulative abilities enter appearances on their own and are heard with the same kind of attention a professional lawyer is paid. But however, the holder of a Power of Attorney, being not a party himself, but merely an agent of another person, cannot seek such right of audience. Pleading in formal court proceedings is an aspect, which is now regulated by a Statute. The right to instruct a Lawyer or an Attorney and to settle the pleadings in writing or to affix the verifications for the general truth of the averments is not a prohibitory exercise, but is a legitimate exercise liable to be carried on by an agent. Therefore, the power of attorney holders have always been accorded the necessary permission to set forth the pleadings on behalf of their Principals. An agent is always allowed and permitted to make and set forth the pleadings on behalf of his Principal in India. Therefore, deposing on behalf of the Principal in a Court being part of exercise of tendering evidence is not a forbidden exercise to be indulged in by an agent. Such persons are entitled to be cross-examined as the act and art of cross-examination being essentially to ascertain the veracity of the statements/submissions made by a witness and in that process, extract the whole of the truth. Section 18 of the Evidence Act, clearly permits and allows evidence to be collected even from an agent. Therefore, the contention canvassed by the learned counsel for the Respondent placing reliance upon a judgment in K. BHARATHY, GUDIVADA AND ANOTHER case cited (1 supra), is not tenable. It is altogether a different thing that a Power of Attorney holder is not liable to be granted permission to plead in a Court, which is an exercise, regulated by Section 32 of the Advocates Act, while the act of deposing as a witness on behalf of the Principal, is not such a regulated exercise. Therefore, the correct way to understand the judgment in K. BHARATHY, GUDIVADA AND ANOTHER case cited (1 supra) is that the power of attorney holder is not entitled to plead on behalf of the Principal, but he can only lead evidence or settle the pleading in the form of a plaint or written statement or petition.

In view of the above clear cut pronouncement, it is evident that a GPA holder can depose and also lead evidence on behalf of his principal.

Learned Family Court Judge also appears to have entertained an apprehension as to whether the Family Court can entertain an application presented by a legal practitioner in view of the provision contained in Section 13 of the Family Courts Act, 1984.

From the very preamble of the Family Courts Act, 1984, one would gather that every endeavour is required to be made by the Family Court to assist the parties in arriving at a speedy settlement of disputes relating to the marriage and/or family affairs. That explains the reason Section 9 of the said Act provided for an appropriate legal environment for settlement of the disputes in an amicable manner. The parties are not only required to be assisted, but also required to be persuaded by the Judge in arriving at a settlement while keeping in view the importance of protecting and preserving the institution of the marriage between the parties. To the extent possible, the Family Court is required to utilize its skills and wisdom gained over long period of time by careful study of the ills of the society and then finding suitable cure for them and hence, the Family court must try to bring about a reconciliation of the disagreements persisting between the parties. However, when two parties to a marriage come before a Family Court and ask for dissolution of their marriage by mutual consent under Section 13-B of Hindu Marriage Act, 1955, the Court is required to adjourn the motion moved by both parties by a period not earlier than six months, as per sub Section 2 of Section 13-B of the Hindu Marriage Act. Further, Sub Section 2 requires that the Court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit with regard to the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of such decree. Therefore, there may have been a genuine apprehension in the mind of the Family Court Judge as to whether there is any possibility of reconciliation between the parties or change of mind with regard to consent expressed earlier for such dissolution, when the petition is returned by it.

Keeping the very object behind the Family Courts Act, 1984, read with the spirit behind Section 13-B of the Hindu Marriage Act, the Family Court could have entertained the interlocutory application in as much as legal practitioners are not totally forbidden from rendering assistance to the Family Court. One of the reasons why Section 13 of the Family Courts Act, 1984, declared that no party to a suit or proceeding shall be entitled as of right to be represented by a legal practitioner sans technicalities or legal necessities, the parties must be helped by the Court to reconcile the disputes persisting between them. Unlike a traditional setup of the Court, where the Presiding Judge has to maintain not only an equiy distance between the parties to a lis, but also maintain a sense of impartiality towards the cause of both sides and essentially was required to maintain an arms length distance from the parties, in a Family Court, the Judge is donning the robes of a facilitator, a mentor and an expert counselor. A slight tilt in the approach to one of the parties in a Family Court, depending upon the facts and circumstances prevailing in the case and if the ends of justice would be better served by dosing so, is allowable. The emphasis being laid upon essentially preserving the institution and interest of the marriage and the welfare and wellbeing of the parties etc. Hence, the Family Court is entitled to receive, examine and act upon an affidavit filed by one of the parties before it, acting through a GPA. A petition moved in that regard is maintainable. I am in fact supported in my view, by the ruling in Mrs. Padmakiran Rao v. B. Venkataramana Rao , the Division Bench of this Court held as under:

As required by sub-section (2) of Section 13-A, the petition was posted for enquiry on 25-6-1994 i.e., after six months. At the enquiry the appellant herein (wife) examined herself and she reiterated her desire to get divorce. However, the respondent could not be present as he is residing in United States. At the same time, an affidavit signed on 22nd February 1994 and affirmed in the presence of a notary public was filed by the respondent. The respondent made it clear that the marriage had irretrievably broken down, that there are no mutual obligations or claims against each other and sought an order dissolving the marriage.

Relying on the wording - "after hearing the parties" in Sub-section (2) of Section 13-B, the learned Subordinate Judge took the view that both the parties to the marriage should necessarily be present in the Court for examination and the filing of affidavit will not be a substitute for that requirement. The learned Judge observed that unless the parties are personally present, it would be difficult for the Court to assess whether they have changed their mind since the date of filing the petition. We do not think that this is a correct view to be taken. 'Hearing' does not necessarily mean that both parties have to be examined. The word 'hearing' is often used in a broad sense which need not always mean personal hearing. In any case, the evidence of one of the parties i.e., the appellant herein was recorded by the Court. Thus, even if the word 'hearing' is construed in a literal sense that requirement must be deemed to have been satisfied in the instant case in view of the examination of the appellant. On the husband's side, there is evidence in the form of an affidavit which can be legitimately taken into account in view of Order XIX Rule 1 C.P.C. It is not as if the affidavit has been doubted or the other party wanted to cross-examine the deponent of the affidavit. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of the parties.

I am, therefore, of the opinion that the Family Courts are entitled to ascertain the views of the parties and for that purpose adjourning a case by a reasonable period is not to be frowned upon. But, however, if one of the parties, like in the present case, appears before the Family court and expresses no objection for an affidavit of the other party to be taken on record and is not desirous of cross examining the deponent of the affidavit, the Family Court cam entertain, unhesitatingly any such move/application.

Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed possibly, sometimes due to pre- occupation with any other more pressing work in the Court. But, however, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. Skype is one such facility, which is easily available. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad can not only be identified by the Family Court, but also enquired about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information. Accordingly, I direct the Family Court to entertain the I.A. as it is maintainable and permit the GPA of the 2nd petitioner in O.P. to represent and depose on behalf of the 2nd petitioner in the O.P. and the Family Court shall also direct such GPA or any legal practitioner chosen by him to make available the skype facility for the Court to interact with the 2nd petitioner, who is staying at Melbourne, Australia and record the consent of 2nd petitioner and proceed with the matter thereafter as expeditiously as is possible.

Accordingly, the civil revision petition is allowed. No order as to costs.

Consequently, the miscellaneous petitions, if any pending shall also stand closed.

_______________________________________ JUSTICE NOOTY RAMAMOHANA RAO 17.06.2015
Ajay Sethi
Advocate, Mumbai
23284 Answers
1219 Consultations
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1) unable to find any judgment of SC on the issue . however many HC have permitted mutuaL consent divorce through POA 


Punjab-Haryana High Court
Rajwant Singh Bains vs Unknown on 21 March, 2014
                       IN THE HIGH COURT OF PUNJAB AND HARYANA
                                    AT CHANDIGARH
                                           ****
                                                        F.A.O. No. M-121 of 2014
                                                        Date of Decision:21.03.2014

            Rajwant Singh Bains                                   .....Appellant No.1

                               Vs.

            Kulwant Kaur Bains                                    .....Appellant No.2


            CORAM:- HON'BLE MR. JUSTICE S.S. SARON
                    HON'BLE MS. JUSTICE NAVITA SINGH

            Present:-          Mr. Parminder Singh Kanwar, Advocate for the appellants.

                                           ****
            S.S. Saron, J.
This appeal has been filed by both the petitioners before the learned trial Court against the judgment and decree dated 16.12.2013 passed by the learned Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur whereby their joint petition seeking dissolution of their marriage by a decree of divorce by mutual consent in terms of Section 13-B of the Hindu Marriage Act, 1955 has been dismissed.

The marriage between the appellants was solemnised according to Sikh rites at Mahilpur, District Hoshiarpur on 6.2.2007. After marriage, they lived and cohabited together as husband and wife at Mahilpur. From the marriage, the parties had no child. Due to temperamental differences between them, their relations became strained. They were not able to live together and have been living separately from each other. Since the marriage had irretrievably broken down, they mutually agreed that it should be dissolved by a decree of divorce by mutual consent. Accordingly, the appellants filed a joint petition in the District Court at Hoshiarpur on Renu 2014.03.22 14:16 I attest to the accuracy and integrity of this document Chandigarh 8.3.2013. Their statements at the first motion were recorded on the said date. It was inter-alia stated by them that their marriage had irretrievably broken down and they had decided to dissolve the same by mutual consent. Kulwant Kaur - appellant No.2 tendered in evidence her Special Power of Attorney dated 6.3.2013 in favour of her real brother Harpal Singh.

The case was adjourned for statutory waiting period of six months. After expiry of the period of six months, the statements of appellant No.1 and attorney of appellant No.2 were recorded. Both of them reiterated the desire of the parties for divorce by mutual consent. Appellant No.1 and attorney of appellant No.2 stated that the marriage be dissolved by a decree of divorce. The learned Additional District Judge, however, dismissed the petition on the ground that appellant No.2 had not herself appeared before the Court to make her statement. It is only the power of attorney holder who had appeared.

Learned counsel for the appellants submits that now Kulwant Kaur - appellant No.2 who was earlier abroad is in India and she is willing to make her statement for dissolution of the marriage between the parties by mutual consent. It is also submitted that even otherwise there is no specific bar for a party to appear through a power of attorney at the time of second motion. Besides, it is submitted that real brother of appellant No.2 who was her attorney could have represented her (appellant No.2) for making a statement on her behalf and there was no reason for his statement not to be accepted.

We have given our thoughtful consideration to the matter. A party in a divorce petition can appear through a power of attorney specially Renu 2014.03.22 14:16 I attest to the accuracy and integrity of this document Chandigarh when he has relationship with one of the parties to the lis and the party which has given a power of attorney is abroad as laid down by a Division Bench of this Court in Jasjit Saini v. Sanjeev Pal Singh Saini, F.A.O. No. M-351 of 2013 decided on 9.12.2013. It was held therein that where a state of mind or conduct of the person is to be ascertained in a proceeding for grant of divorce, normally the parties should appear in person and their evidence alone is to be considered and not that of a person holding an attorney. However, the exception to the rule is that where a close relative appears for the parties acting as his or her attorney and is in a position to state and depose as regards the state of mind of the principal and the affairs of the principal are managed by the attorney, then such statements of an attorney on behalf of the principal can be accepted and matrimonial relief granted. The exception is all the more applicable where one of the parties or both are unable to appear for justifiable reasons like living abroad and their affairs are managed by a close relative who is acting as an attorney. In such a case the state of mind of the parties can be gathered from the statements made by the attorneys. It would depend on the facts and circumstances of each case.

Therefore, in the present case merely because the wife (appellant No.2) had not appeared in person at the time of second motion indeed ought not to have been a ground to disentitle the appellants for the matrimonial relief of divorce. However, as has already been noticed that now both the parties are available and appellant No.2 is stated to be willing to make her statement for the second motion. Therefore, it would be just and expedient in the facts and circumstances that the parties appear before Renu 2014.03.22 14:16 I attest to the accuracy and integrity of this document Chandigarh the learned trial Court itself so that their statements can be recorded at the second motion.

Accordingly, the appeal is allowed. The judgment and decree dated 16.12.2013 passed by the learned Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur is set aside.

The parties shall appear before the learned trial Court on 27.03.2014 for recording the statement of appellant No.2- wife at the second motion. The learned trial Court shall proceed with the case from the stage after statement of appellant No.1 - husband was recorded at the second motion by recording the statement of appellant No.2 - wife and then consider for grant of divorce by mutual consent.




                                                                  ( S.S. SARON )
                                                                      JUDGE


            March 21, 2014                                     ( NAVITA SINGH )
            renu                                                    JUDGE


Note: Whether to be referred to Reporter? Yes/No. Renu 2014.03.22 14:16 I attest to the accuracy and integrity of this document Chandigarh
Ajay Sethi
Advocate, Mumbai
23284 Answers
1219 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.
September 19, 2008 SHIV NARAYAN DHINGRA
Ajay Sethi
Advocate, Mumbai
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The Supreme Court has not, to the best of my knowledge, rendered a decision on this, but this does not mean that you cannot go ahead and apply to the court to allow you to depose through a POA. The law gets laid down everytime somebody carries the matter in appeal to the High Court or Supreme Court.
Ashish Davessar
Advocate, Jaipur
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449 Consultations
5.0 on 5.0
There are various judgments entertaining POA to represent the petitioner in the Mutual consent divorce.
You can read this citation given below:

Andhra High Court
Dasam Vijay Rama Rao vs M.Sai Sri on 17 June, 2015

The concluding part of the above judgment is given below:

Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed possibly, sometimes due to pre- occupation with any other more pressing work in the Court. But, however, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. Skype is one such facility, which is easily available. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad can not only be identified by the Family Court, but also enquired about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information. Accordingly, I direct the Family Court to entertain the I.A. as it is maintainable and permit the GPA of the 2nd petitioner in O.P. to represent and depose on behalf of the 2nd petitioner in the O.P. and the Family Court shall also direct such GPA or any legal practitioner chosen by him to make available the skype facility for the Court to interact with the 2nd petitioner, who is staying at Melbourne, Australia and record the consent of 2nd petitioner and proceed with the matter thereafter as expeditiously as is possible.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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Hon'ble Supreme Court in the case of Sureshta Debi v. Om Prakash , wherein it was held as follows:

10. Under Sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.



There are many citations for and against, hence you may sift between them and use the ones favoring your position. 

T Kalaiselvan
Advocate, Vellore
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127 Consultations
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