SINHA & SINHA LEGALISTS LLP

Whether in case of contested divorce any other person be it parents or siblings of the Petitioner (Husband/Wife) represent the divorce through special power of attorney?

A power of attorney (POA) is a legal document giving one person (the agent or attorney-in-fact) the power to act for another person (the principal). If the power of attorney states that the attorney holder has the power and authority to file a suit and further contest it, a divorce petition can be filed through this attorney bearing the signatures of the attorney. Once the divorce petition has been filed, the parties’ presence would be required at the stage of evidence. This means that, the filing can be done by the attorney holder, but such third party cannot adduce evidence because as per various supreme court judgments it has been held that wherever the law requires/ contemplates the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder.

LANDMARK JUDGEMENTS

1: Mohanan v. Ajitha case, Kerala High Court

The ruling by a division bench comprising justices AM Shaffique and Ashok Menon states that any Indian citizen living abroad can seek non-mutual divorce through a power-of-attorney holder without having to be present in the country and need to appear before the court only for counselling for reconciliation or to give evidence.
An appeal (Mat. Appeal No. 470/2010) filed by a 39-year-old NRI hailing from Palakkad, through his power-of-attorney holder, was considered by the division bench. He had challenged the ruling of Palakkad family court in October 2009 that a petition for non-mutual divorce cannot be filed through a power-of-attorney holder.
The divorce was sought on the ground of extra-marital affair of the appellant’s wife and for cruelty, under section 13(i) and (ia) of Hindu Marriage Act, 1955. The wife was represented by a lawyer before the family court but had not taken any steps in the matter thereafter whereas the alleged paramour remained ex parte. While dismissing the divorce plea, the family court had cited a high court division bench’s judgment of 2007 (Rekharani vs. Prabhu).
While allowing the appeal against the family court’s ruling, the division bench said in the judgment, “It is relevant to note that the Division Bench considered an application under Section 13B of the Act, where divorce was sought on mutual consent. This is not a case where divorce is sought on mutual consent, whereas divorce is sought on the ground of adultery and cruelty. Insofar as there is specific provision under the Code of Civil Procedure (CPC) enabling a petition to be filed through a power of attorney holder, there is nothing wrong in the Family Court entertaining an application even though it is filed through power of attorney holder. The provisions of CPC squarely apply to matters that are entertained by Family Court as well. Therefore, we do not think that the Family Court was justified in rejecting the petition at the fag end of the trial on the ground that it was not maintainable.
It cannot be said there is no chance of abusing such a provision. In many cases, there is more enmity between the in-laws than between the husband and wife. In such scenarios, there is the possibility of misusing a power of attorney. However, it is mandatory that both the spouses should be present in person during counselling. Thus, any such misuse will be prevented at the stage of counseling.

2: Gayathiri v. Thiruman, Madras High Court

At the time of filing the original divorce petition, this respondent/husband has filed an application in I.A.No.2813 of 2011 for seeking permission of his mother Smt.Kalaiarasi w/o late Perumal, aged about 54 years has filed an application under Order III Rules 1 and 2 of C.P.C. read with Section 151 of C.P.C 3

9^th March 2017 3 Order III Rule 1 of CPC Appearances, etc., may be in person, by recognised agent or by pleader Any appearance, application or act in or to any Court, required or authorised 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 recognised agent, or by a pleader (appearing, applying or acting, as the case may be) on his behalf. Rule 2 Recognised Agents, The recognised agents of parties by whom such appearances, applications and acts may be made or done are -
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.seeking prayer to dispense with the respondent/husband of his personal appearance and permit the power agent Smt.Kalayarasi, to appear on his behalf to file any counter statements, reply statements, affidavits and other related case papers of the divorce petition and to appear in the proceedings of the case before the Court.

Considering both side cases, the learned II Additional Principal Judge, Family Court, Chennai was pleased to allowed the said application and permitted Smt.Kalaiyarasi to appear on behalf of the respondent/husband to act on behalf of him as power agent. Challenging the said order, the petitioner/wife has filed the civil revision petition before this Court. The final decision of the court is as follows:

(a) the civil revision petition is allowed by setting aside the order in I.A.No.2813 of 2011 in Original Petition No.3180 of 2011, dated 06.08.2012, passed by the learned II Additional Judge, Family Court, Chennai;
(b) the learned II Additional Judge, Family Court, Chennai is hereby directed to pass suitable orders for the personal appearance of the petitioner/husband in O.P.No.3180 of 2011 before the II Additional Judge, Family Court, Chennai in the above case and in an exceptional circumstances permit the General Power of Attorney Smt.Kalaiyarasi to represent the case;
(c) the learned II Additional Judge, Family Court, Chennai is directed to dispose of the O.P. within a period of 3 months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.

3: S.M. Syed Amina Beevi vs Thaika Sahib Alim And Anr.4, Madras High Court

In this case, it was held that, “Personal appearance or presence of the party concerned becomes therefore inevitable and necessary, at any rate from the stage of hearing after the appearance of the other side to the proceedings, and the efforts contemplated to be made by the Family Court under the statute cannot be effectively carried out through a recognised or authorised agent of the party and having regard to the sensitive nature, personal feelings and behavioural attitudes to be assessed by the Court in carrying out the mandate contained in Section 9 of the Family Courts Act. Personal appearance, though, not initially required, becomes absolutely necessary after the appearance of the respondent to the proceedings. The petitioner shall be at liberty to present the application through a recognised or an authorised agent other than the legal practitioner as contemplated under Order 3, Rule 1 of the Code of Civil Procedure, and the Family Court at the same time is entitled to insist upon the personal appearance of the petitioner or any party concerned for the matter for all subsequent or further stages of the hearing, after the appearance of the respondent or from the stage of hearing even when the respondent, fails to appear or remains ex parte to the proceedings.”

4: Dr. K. Malathi vs Dr. S. Rajasekaran, Madras High Court5

The only point for consideration in this revision petition is, whether the Family Court is justified in ordering dispensing with the presence of the husband till the final disposal of O.P. of 1999? The impugned order shows that the document produced by the petitioner therein - husband that he got an appointment at Saudi Arabia and his flight for departure on 14.11.2002 has also been confirmed. Considering all these aspects and of the fact that he had completed his evidence by examining himself as P.W.1, the Family Court passed the order dispensing his presence. Though the said order does not say whether his dispensation is for a particular period or not, in the light of the relief prayed for in the petition, it is presumed that his presence has been dispensed with till the final disposal of the O.P.
Justice P Sathasivam, in his final order stated that,“In the light of the dispute, I have also summoned all the materials from the Family Court and it show that in so far as the husband is concerned, his chief, cross and re-examination was completed even on 11.11.2002. The power of attorney holder, father of the husband has informed this Court that his son left India on 14.11.2002. In such a circumstance, while holding that at the stage of enquiry, the parties to the Family Court are necessarily to be present, in the light of the peculiar circumstance and also of the fact that the evidence on the side of the husband was closed, the revision petitioner has cross examined him at length, in the light of the foreign assignment, I do not find any valid reason to interfere with the impugned order of the Family Court. As a matter of fact, learned counsel for the respondent - husband asserted that if the Court insist, at any time he will come back and appear before the Family Court.
In the light of what is stated above and in view of the peculiar circumstance, I do not find any valid ground to interfere with the impugned order. Consequently, the revision fails and the same is dismissed. No costs.”

REFERENCES

indiankanoon.org
caselaw.in
timesofindia.indiatimes.com
www.latestlaws.com
www.investopedia.com

" Author Adv. Saloni Singh - 25-04-2024 "