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Divorce without stepping in courtroom

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There was a report in Times of India about how old parents of young Indians residing outside country have to undergo hardships and undertake a number of court visits seeking divorce for their children. This is primarily because getting divorce in India is far cheaper and particularly working half does not end up with a big hole in the pocket. But is getting divorce that easy? Can an Indian residing outside the country get divorce without even being present in India? Legally speaking can “general power of attorney” holder can institute divorce proceedings in India?

Primary problem with engaging any attorney arises because of the provisions of section 13 of Family Courts Act, 1984. The section makes it mandatory for the parties to personally appear and discourages engaging a lawyer. This also transcends and applies to a general power of attorney holder. However, there is enough law in terms of precedents to suggest otherwise.

However, there are court judgments to suggest that a General Power of Attorney (GPA) holder may not institute divorce proceedings in India. Only specific power of attorney holder, with particular instructions is allowed to undertake such a proceeding.[1] In the case of Harpreet Singh Sekhon vs Rajwant Kaur[2] FAO No.6208 of 2011 Court was of the opinion that the GPA should have specifically authorized father of the appellant, the GPA decree holder in this case, to initiate proceedings. They looked at the language of GPA document and suggested that the document did not say anything specific in furtherance of instituting power to institute suits to the father. Hence, father could not institute suit. The same was re-observed in subsequent divorce case i.e. Harpreet Singh Sekhon vs Rajwant Kaur  FAO NO.5742 of 2010 (O & M)[3] It was a similar case to the case at hand. Son lived in US and was represented by his father GPA holder. Proceedings were initiated by Harpreet singh via his father Dilraj Singh. Court said following:

“Learned counsel for the plaintiff-respondent has also raised an objection that Sh.Dilraj Singh Sekhon GPA for the appellant who claims to have a power of Attorney in his favour does not have a valid power of attorney to represent his son Harpreet Singh Sekhon who is the defendant. In the connected FAO No.6208 of 2011, there was a specific issue in this regard and in the order pronounced today, it has been held that the power of attorney on the basis of which Dilraj Singh Sekhon is litigating on behalf of his son does not give him the necessary power. Therefore indeed the power of attorney executed by Harpreet Singh Sekhon defendant in favour of Dilraj Singh Sekhon on 22.02.2006 does not confer on him any power to pursue litigation on his behalf.”

Hence, we may conclude that until power of attorney document does not expressly mention ability of the GPA holder to institute divorce proceedings, he/she may not do so.

Even if such proceedings are instituted, there is ample of case law to suggest that petitioner has to be present in person to give statements and GPA holder may not do so on his behalf. In Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd. AIR 2005 SC 439[4] 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. Reasoning of this case was used as the basis in Mr. Vinay Jude Dias v. Ms. Renajeet Kaur.[5] Court was of the opinion that GPA is only limited to the stage of initiation of proceedings and could not be witnesses in cases in which only person giving GPA can be a witness.

Legal principles in above mentioned judgments may be used as a basis to ask court to not allow the proceedings without petitioner being present in person. (It is perhaps a delay tactic. This is because objective in many cases is to delay or quash proceedings so as to allow proceedings in another country to come to a conclusion. Thereafter general res judicata principles may be argued!)

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[1] Combined reading of Indian Contract Act, Stamps Act and Power of Attorney Act helps infer the two.

[2] https://indiankanoon.org/doc/56061969/

[3] https://indiankanoon.org/doc/172266062/

[4] The Supreme Court in Janki Vashdeo v. Indusind Bank [2005(2) KLT 265 (SC)] also has reiterated that a power of attorney can give evidence only in respect of acts done by him in the exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter on which the principal alone can have personal knowledge. It was also held therein that the power of attorney …”cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”

[5] http://delhicourts.nic.in/Sep08/Vinay%20Jude%20Dias%20Vs.%20Renajeet%20Kaur.pdf

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