Blog

In case of divorce proceedings, when a party resides outside the country and cannot be present for the execution of the divorce, he/she can authorize a person by way of a notarized Power of Attorney to represent him/her after submitting an application to the Family Court under Order III Rule 2 of the CPC. This was decided in the case of Principal Judge, Family Court [M.F.A No. 4453/2020 (FC)] in the High Court of Karnataka by a double bench consisting of Hon’ble Justice B.V Nagarathna and Hon’ble Justice N.S Sanjay Gowda.

Facts of the Case

The appellants, in this case, are a couple who got married in the year 2017 in Bengaluru as per Hindu custom. Thereafter they were not able to cohabit together and decided to separate in June 2017. After almost three years of separation, in 2020 they realized that their marriage had irretrievably broken down and decided to get a divorce by filing a petition under Section 13B (1) of the Hindu Marriage Act for divorce by mutual consent. The wife resides in Canada and therefore executed a notarized Power of Attorney in favor of her father. In the Power of Attorney, the wife stated that owing to her inability to be present in Bengaluru, she appoints her father to represent her in the divorce proceedings.

Based on this, the father and the husband signed the aforementioned divorce petition and presented it to the Family Court. It must also be noted that an application under Order III Rule 2 (read along with Section 151) of CPC was also filed to allow the representation of the father on behalf of the wife. However, this application was rejected by the court which is why this appeal against the order is presented before the High Court.

Legal Principles Applied

Applicable Statutory Law:

1. Code of Civil Procedure (Order III Rule 1)
2. Family Courts Act, 1984 (Section 10)
3. Indian Evidence Act, 1872 (Section 18)
4. Power of Attorney Act, 1882 (Section 2)

The court referred and listed these provisions to show that there exists sufficient law that allows parties to appoint some other person as Power of Attorney/Authorized Agent in cases where he/she is not in position to personally prosecute or defend a case. It said that on account of parties residing in different parts of the country and owing to any constraints, it may not be possible for both parties to jointly present the petition for dissolution of marriage before the court of law. In such a case a party might avail the provisions mentioned here should be read harmoniously and interpreted such so that it is conducive for parties to avail facility of Power of Attorney.

Case laws Referred:

1.  [(2017) 8SCC 746] – In this case the Supreme Court held that the court can exercise its discretion in the facts and circumstances of the case and made it flexible In representations of the parties by their close relatives in whom they have complete trust to be appointed as a Power of Attorney. It said “Needless to say that in conducting such proceedings the court also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court.”

2.  [ILR 1999 KAR 2811] – In this case, it was observed by the high court that “There is nothing in Act or Rules which prohibits a petition being filed by an Authorized Agent and there is not bar to a petition being presented to the court by an Agent (Attorney holder).  Similarly, there is nothing in the act or rules requiring the Family Court to refuse to recognize or accept the appearance of a respondent, through an Authorized agent on the date fixed for appearance”

3.  [AIR 2018 Bombay 148] – In this case the High court considered section 10 of the Family Courts Act, Order III Rule 1 of CPC, Order VI Rules 14 and 15 of CPC and various judgements on the aspect of representation of a party through a Power of Attorney and in the context of Section 13B of the Act, observed there is nothing under the said provision to bar a Power of Attorney holder to represent a party and observed as “Section 13B of the Hindu Marriage Act do not contain any provision abrogating the power of POA holder under the Code of Civil Procedure and therefore, the procedure governing the proceedings filed under Section 13B of the Hindu Marriage Act would be governed by Order III as well as Order VI of the Code of Civil Procedure.

4.  [AIR 2015 (NOC) 266 (MAD)] – In this case the judge opined that a party residing abroad could be represented through a Power of Attorney and there in no legal impediment to grant permission to a party for being represented by a Power of Attorney. But the party should make personal appearance before Court as and when stipulated by Family court and it could be by utilization of video conferencing technology also.

5.  [ALD-2015-4-757] – In this case, the Andhra Pradesh High court said “Increasingly Family Courts have been noticing the 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 reason. On the intended day of proceedings, may not attend the court. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. “

Conclusion

In view of the above judgements laid down and after analyzing the reasoning behind them, this court drew the conclusion that the Family Court was not right in rejecting the application filed under Order III Rule 2 read with Section 151 of CPC. Hence the set order was set aside. The court further said “Permission is granted to the second appellant to be represented through her Power of Attorney Holder, who is none other than her father on the strength of the special Power of Attorney executed by her. The family Court is at liberty to direct the second appellant to appear through video conferencing before the court and if such a direction is issued, she must comply with the said direction”.