Whether court can permit parties to appear through power of attorney in Divorce by mutual consent?

In so far as the first aspect is concerned, the issue is no more res integra, in view of number of judicial pronouncements including  Nathiya Faru  vs.  Rojan Roux, ((2009) 6 MLJ 945) and Terance Alex  vs.  Mary Sowmya Rose, (2011-2-LW-84). The permission declined by the Family Court to be represented through Power of Attorney was assailed before the High Court and it was observed that there is no legal impediment to grant permission for the party to be represented by a Power of Attorney, especially where parties are residents abroad and having children to look after.  Of course, if the Court feels the necessity of counseling in settlement, it can be asked to appear at that stage.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2014
CORAM
 MR.SANJAY KISHAN KAUL, CHIEF JUSTICE
AND
 MR.JUSTICE M.SATHYANARAYANAN

W.P.No.30976 of 2014
and M.P.No.1 of 2014


Sudha Ramalingam vs  Registrar General,   High Court of Judicature at Madras,


Citation;AIR 2015 (NOC)266 MADRAS


There are two issues raised in this Public Interest Litigation qua the proceedings under the Family Court Act, 1984:

1.The right of a party to be represented through a Power of Attorney; and
2.Utilizing of Video Conferencing Technology, especially where parties are residing abroad and where there is mutual consent for divorce.

2.In so far as the first aspect is concerned, the issue is no more res integra, in view of number of judicial pronouncements including  Nathiya Faru  vs.  Rojan Roux, ((2009) 6 MLJ 945) and Terance Alex  vs.  Mary Sowmya Rose, (2011-2-LW-84). The permission declined by the Family Court to be represented through Power of Attorney was assailed before the High Court and it was observed that there is no legal impediment to grant permission for the party to be represented by a Power of Attorney, especially where parties are residents abroad and having children to look after.  Of course, if the Court feels the necessity of counseling in settlement, it can be asked to appear at that stage.

3.Qua the second issue, the facility of recording evidence through Video Conferencing is available to the Courts.  In fact, the petitioner herself has annexed certain office memorandums whereby the Registrar General has granted permission to the Family Court to record evidence through Video Conferencing.  That appears to have occurred because the specific Court sought permission from the Registrar General.  A Division Bench of this Court in  2014 (5) C.T.C. 177, has held that the Power of Attorney can appear, plead and act on behalf of the party, but cannot become witness on behalf of the party in the capacity of a principal.  The Power of Attorney, as agent, would not be able to depose on his personal knowledge, nor can he be cross-examined on those facts which are exclusively to the personal knowledge of the principal and thus, in family matters especially it is not possible for the spouse to engage a Power of Attorney Agent to act on his behalf to give evidence, of which she or he alone has personal knowledge.  Thus, though there is no legal impediment under the said Act for a Power of Attorney to appear on behalf of the principal, in case of a petition for divorce by mutual consent, it cannot be presented through a Power of Attorney of a party, but the party should make personal appearance before the Court as and when so stipulated or directed by the Family Court.  This is so since the parties have to satisfy the Court that as on the date of presentation of the case, they had not been living together as husband and wife for more than one year, that they have not been able to live together and that they have mutually agreed for dissolution.

4.On verification from the Registrar General, we are informed that there is no circular issued for any prior permission to be obtained from the High Court through Registrar General to record evidence through Video Conferencing by the Family Court.  Thus, a discretion is vested with the Family Court itself to record evidence through the process of Video Conferencing.  Not only that, under Section 10(3) of the said Act, the Family Court is empowered to lay down its own procedure to arrive at a settlement or to get the truth of the matter.

5.The aforesaid being the position, it is not possible to issue any general direction, which would hedge the judicial discretion of the Court under the said Act.



6.The Writ Petition is disposed of with the aforesaid observations.  No costs.  Consequently, M.P.No.1 of 2014 is closed.

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