Can power of attorney represent a party in divorce by mutual consent proceeding?

 In Harshada Bharat Deshmukh v. Bharat Appasaheb Deshmukh, MANU/MH/0602/2018 : AIR 2018 Bombay 148 : [2018 (2) HLR (Bom.) 148], the Bombay 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 judgments on the aspect of representation of a party through a Power of Attorney and in the context of Section 13B of the Act, observed, that there is nothing under the said provision which would bar a Power of Attorney holder to represent a party and observed as under:-

"(10) Section 13B of the Hindu Marriage Act do not contain any provision abrogating the power of power of attorney 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.  {Para 22}

 IN THE HIGH COURT OF KARNATAKA

M.F.A. No. 4453 of 2020 (FC)

Decided On: 10.11.2020

In Re: Aditya Jagannath and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Neranahalli Srinivasan Sanjay Gowda, JJ.

Citation: MANU/KA/5159/2020

Author: B.V. Nagarathna, J.

1. This appeal was listed for admission yesterday and on hearing the learned counsel for appellants, there being no respondent in this appeal, it has been listed today for orders.

2. The appellants are husband and wife, who are aggrieved by the order of the IV Addl. Principal Judge, Family Court, Bengaluru, passed in M.C. No. 1274/2020 by which, their application (I.A. No. 3) filed under Order III Rule 2 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), has been rejected and as a result, the second appellant (petitioner No. 2) before the Family Court i.e., wife has not been permitted to be represented by her father as her power of attorney, so as to prosecute the petition filed by the parties under Section 13B(1) of the Hindu-Marriage Act, 1955 (hereinafter, referred to as "the Act", for the sake of convenience), through which the parties are seeking dissolution of their marriage by a decree of divorce by mutual" consent.

3. We have heard learned counsel for appellants, Sri. M.S. Shyam Sundar and we have also heard the appellants, who have appeared through video conference.

4. At this stage itself, it may be mentioned that while the first appellant-husband, who has appeared, is in Bengaluru, the second appellant-wife is presently residing at Toronto, (QC) Canada.

5. Briefly stated, the facts are that the appellants herein were married on 9th February, 2017 at V.K. Convention Hall, Yelahanka Satellite Town, Bengaluru, as per Hindu rites and customs. Their marriage was also registered before the Registrar of Marriages, Gandhinagar, Bengaluru. On account of lack of adjustment, incompatibility etc., they were unable to cohabit together as husband and wife and therefore, they decided to separate. Since June 2017, they have been living separately despite all efforts made by the elders, family members, well-wishers and others interested in their well being. According to the appellants, owing to their incompatibility, their marriage has broken down irretrievably. Therefore, after several rounds of discussions, the parties decided to dissolve their marriage by mutual consent. Therefore, they filed a petition under Section 13B(1) of the Act, seeking dissolution of their marriage by a decree of divorce by mutual consent in M.C. No. 1274/2020, a copy of which is produced as Annexure "J" to this memorandum of appeal. The said petition was signed by the appellant-husband and the father of the respondent-wife on the strength of the Power of Attorney that had been executed by the second appellant in favour of her father, dated 12/02/2020 at Montreal, (QC) Canada and the same has been witnessed by two persons and has been notarized. A copy of the deed of Power of Attorney is produced as Annexure. In the said Power of Attorney, the second appellant-wife has stated that since she is residing at Montreal, (QC) Canada and was unable to be present in Bengaluru for the purpose of presenting the petition under Section 13B(1) along with the first appellant therefore, she appointed her father as her Power of Attorney/agent to file the said petition on her behalf, to represent her in the Family Court, to prepare sign, file all pleadings, to prosecute the petition for divorce by mutual consent and to give consent on her behalf for dissolution of marriage by a decree of divorce by mutual consent by engaging the services of an advocate, to give evidence on her behalf, to represent her in the Mediation and to obtain copies of documents and generally, to do all other acts for conduct of the petition for a decree of divorce by mutual consent. She has also stated that all acts, deeds and things lawfully done by her Power of Attorney shall be construed as acts, deeds and things done by her and she would ratify and confirm the same.

6. On the strength of the Power of Attorney dated 12/02/2020, the first appellant and the Power of Attorney holder of the second appellant signed the petition under Section 13B(1) of the Act and presented the same before the Family Court at Bengaluru in M.C. No. 1274/2020. Thereafter, the first appellant and Power of Attorney holder of the second appellant appeared and an application under Order III Rule 2 read with Section 151 of CPC was filed by way of abundant caution. On the said application, the Family Court heard the matter and ultimately, rejected the said application by granting liberty to the parties to file a fresh petition under Section 13B(1) of the Act by impugned order dated 15/09/2020. Being aggrieved, the parties have preferred this appeal.

7. At this stage itself, it may also be mentioned that this appeal is filed by the first appellant, who is the husband and the second appellant, who is the wife, through her father, who is the Power of Attorney of his daughter.

8. Appellants' counsel contended that the Family Court was not right in rejecting the application filed under Order III Rule 2 of CPC and thereby, directing the parties to file fresh petition under Section 13B(1) of the Act. As a result, the petition filed by the appellants under Section 13B(1) of the Act has also been rejected, on the premise that the said petition was not signed and verified by the second appellant, who is presently residing in Toronto, Canada and that presentation of the said petition by the Power of Attorney holder-her father, along with the first appellant was not permissible in law. He submitted that such a reasoning is not acceptable, having regard to the fact that owing to liberalization and globalization, there is movement of parties from one part of the world to another, it would be difficult for the parties to sign the pleadings, verify and appear in person in such Cases particularly, in the present times when owing to Corona Virus Covid-19 pandemic, traveling is not permitted nor feasible and Court proceedings or business are being conducted through video conference. He contended that there is no bar under the CPC or under the Family Courts Act, 1984 nor under the provisions of the Act, which would disentitle the Power of Attorney holder of a party from signing and verifying the pleadings or to present a petition for dissolution of marriage by a decree of divorce by mutual consent or to prosecute such a petition. The Family Court ought not to have rejected the application filed by the appellants, which was by way of abundant caution as in the very first instance, on the strength of the Power of Attorney executed by the second appellant in favour of her father, appointed him as her Power of Attorney holder and the petition was presented by the parties represented by the Power of Attorney holder. He further submitted that in the instant case, the parties have discussed the matter at length and have arrived at a decision to dissolve their marriage by mutual consent and the said decision has been arrived at by them on their own free volition, there being no undue influence or coercion from any quarter. Therefore, there is no impediment in the instant case for the father of the second appellant to act as her Power of Attorney holder signed and verified the pleadings and presented the petition along with the first appellant and also to represent the second appellant in the proceedings before the Family Court.

9. In this regard, he relied upon a decision of this Court in the case of Komal S. Padukone v. Principal Judge, Family Court [MANU/KA/0471/1999 : ILR 1999 KAR 2811], particularly, Paragraph No. 13 and also drew our attention to Paragraph No. 14 where the facts are identical to the present case. Even though in the said case, it related to the Power of Attorney acting on behalf of the respondent, the same would not make any difference to the present case. He also relied upon another decision of the Bombay High Court in the case of Harshada Bharat Deshmukh v. Bharat Appasaheb Deshmukh, MANU/MH/0602/2018 : AIR 2018 Bombay 148 : [2018 (2) HLR (Bom.) 148] and the judgment of the Division Bench of the Madras High Court in the case of Sudha Ramalingam v. Registrar General, High Court of Judicature at Madras [MANU/TN/3308/2014 : AIR 2015 (NOC) 266 (MAD)].

10. Learned counsel for appellants contended that Section 10 of the Family Courts Act, 1984 does not contain any bar for a Power of Attorney holder to represent a party in a petition under Section 13B of the Act wherein, the parties seek for divorce by mutual consent and there is no legal impediment for granting permission to a party to represent by a Power of Attorney. That the Family Court is empowered to innovate its own procedure to arrive at a just decision in the matter and therefore, in the present case, the Family Court ought not to have rejected the application filed by the second appellant under Order III Rule 2 of CPC, which was filed by way of abundant caution.

11. Similarly, he relied upon another judgment of the Kerala High Court in the case of Kunhi Purayil Mukundan Naveen v. Anjalika Dinesh [MANU/KE/1397/2011 : AIR 2011 (KER) 186], wherein, under the provisions of the Act, permission was granted for the Power of Attorney holder to institute proceedings and also to conduct the same.

12. Learned counsel for the appellant also placed reliance on a judgment of the Andhra Pradesh High Court in the case of Dasam Vijay Rama Rao v. M. Sai Sri, MANU/AP/0311/2015 : ALD-2015-4-757 : [2016 (2) HLR (Hyd.) 372], wherein permission was granted for a party to be represented by a Power of Attorney after referring to the Evidence Act, 1872, Family Courts Act, 1984, Hindu Marriage Act, 1955 and Powers-of-Attorney Act, 1882. Hence, he submitted that the impugned order may be set aside and the matter may be remanded to the Family Court for disposal of the petition in accordance with law.

13. The detailed narration of the facts and contentions would not call for any reiteration except to highlight the fact that the appellants herein namely, the first appellant-husband and the second appellant-wife, through her Power of Attorney holder, who is none other than her father, filed a petition jointly under Section 13B(1) of the Act. On the strength of the Power of Attorney dated 12/02/2020, executed by the second appellant, in favour of her father, he signed and verified the pleadings along with the first appellant. This is because the second appellant herein, now residing in Toronto, Canada, could not travel to appear for the purpose of filing the petition as she was then at Montreal, Canada. By way of abundant caution, an application was filed under Order III Rule 2 read with Section 151 of CPC, seeking permission of the Court by the Power of Attorney holder-father of the second appellant to represent her in the proceeding. The Family Court has rejected the said application.

14. Prior to considering the judgments relied upon by the learned counsel for the appellants, it would be useful to refer to Order III Rule 1 of CPC, Section 10 of the Family Courts Act, 1984, Section 18 of the Evidence Act, 1872 and Section 2 of the Powers-of-Attorney Act, 1882. They read as under:-

The Code of Civil Procedure, 1908 (Order III Rule 1)

1. Appearances, etc., may be in person, by recognized agent or by pleader.--Any appearance, application or act in or to any Court, required or authorized 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 recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognized agent.--The recognized 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 authorized to make and do such appearances, applications and acts.

*****

The Family Courts Act, 1984 (Section 10)

10. Procedure generally.-(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.

*****

The Indian Evidence Act, 1872 (Section 18)

18. Admission by party to proceeding or his agent.--Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions.

By suitor in representative character: Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by--

(1) By party interested in subject-matter: Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or

(2) By person from whom interest derived : Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.

*****

The Powers-of-Attorney Act, 1882 (Section 2)

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.

This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.

15. In fact, as already submitted by learned counsel for appellant, taking recourse to the appointment of a Power of Attorney for the purpose of representing one of the parties to a dispute is an enabling provision and such a provision is of great assistance to the parties, who are not in a position to personally prosecute a case or defend it by signing and verifying the pleadings, appearing in the Courts, for giving evidence and for doing all such other acts as are necessary for the prosecution of a case or for defending a case, as the case may be.

16. In recent times, we find that the parties who seek for dissolution of their marriage by a decree of divorce by mutual consent do so after long negotiation and discussion, some times they, being located at different parts of the globe, through skype, telephonically or use of other forms of technology, such as whatsapp calls, video conferencing etc. On account of the parties residing in different parts of the country or across the globe and owing to constraints of job or other constraints, such as illness etc., it may not be possible for both parties to sign and verify the pleadings and jointly present the petition for dissolution of their marriage by mutual consent before the Court of Law. This is so in the instant case. In such circumstances, one of the parties to the petition may avail of the facility of appointing a Power of Attorney/agent, in whom the party has full trust and confidence to represent her or him in a proceeding to be filed as in the instant case before the Family Court or any other Court seeking matrimonial or any other relief. Therefore, the provisions of the various enactments must be harmoniously read and interpreted, so as to make it conducive for availing or taking recourse through appointment of a Power of Attorney holder, to represent a party in a proceeding. This is particularly, as in the instant case, where parties are seeking dissolution of their marriage by a decree of divorce by mutual consent. Moreover, in such cases, a party can carefully think over the matter and appoint a person in whom the party would have full trust and confidence to be as her or his Power of Attorney holder. It is on the strength of such a document of Power of Attorney that the Power of Attorney holder would represent a party to jointly file a petition for dissolution of their marriage through mutual consent on behalf of the executor or Power of Attorney. The Family Court may insist on satisfying itself that indeed the parties have an intention that they should seek a decree of divorce by mutual consent and in order to fully satisfy itself, the Court may, apart from examining the Power of Attorney holder representing any party, also through video conferencing, (which is now widely being used on account of the Covid-19 pandemic), examine the parties including the party who is represented through the Power of Attorney holder. That merely because one of the parties would file the petition seeking dissolution of marriage by mutual consent jointly with the other party, through a Power of Attorney, one cannot ignore the fact that the Court must satisfy itself about the genuineness of the petition filed by the parties seeking dissolution of their marriage by a decree of divorce by mutual consent irrespective of whether it is filed through a Power of Attorney. In fact, the filing of such a petition is an exception to what has been stated in Section 23 of the Act. Even so, the Court ought not to be pedantic but must apply a flexible procedure which is in accordance with law and not a procedure, but not one which is incongruent in law.

17. In fact, recently, the Hon'ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur, MANU/SC/1134/2017 : (2017) 8 SCC 746 : [2017 (3) HLR (S.C.) 673] while considering Section 13B(2) of the Act, which stipulates a cooling off period of six months which is also a period of locus poenitentiae, after filing a petition of divorce under Section 13B(1) of the Act, so as to give an opportunity to the parties to rethink over the decision and thereafter, to confirm their decision six months later, has made the said provision less rigid and more pro-litigants by bearing in mind the changed circumstances and peculiarities of the case. Nevertheless, in the said case, it has been observed that the period of six months should be waived owing to the circumstances of the particular case, the exigencies of the situation and bearing in mind the interest of the parties so that justice would be subserved in the matter. In this regard, the Hon'ble Supreme Court has observed that the period mentioned in Section 13B(2) could be construed to be as directory and not mandatory and it would be open to the Court to exercise its discretion in the facts and circumstances of each case, where there are no possibilities of parties to reconcile, cohabit and there are no chances of alternative rehabilitation. In Paragraph No. 21 of the said judgment, the Hon'ble Supreme Court has also observed as under:-

"Needless to say that in conducting such proceedings the court can also use the medium of videoconferencing and 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, to advance the interest of justice."

18. A reading of the above would clearly indicate that the Hon'ble Supreme Court has also made it flexible in the context of representation of the parties by their close relatives, partners or siblings or any other person in whom they have complete trust to be appointed as a Power of Attorney holder. In fact, as already noted, the Court can always satisfy itself about the genuineness of the intention of the parties who approach the Court either by themselves or through a Power of Attorney holder by way of video conferencing, so that any doubts about the genuineness of the petition being filed before the Court is removed.

19. On a perusal of the aforesaid observations of the Hon'ble Supreme Court, it is clearly permissible for the parties to be represented by their partners or siblings in a proceeding filed under Section 13B(1) of the Act or any other similar provision in any other enactment, which provides for dissolution of marriage by a decree of divorce by mutual consent.

20. In the circumstances, we find that in the instant case Family Court ought to have permitted the father of appellant No. 2, for signing and verifying the pleadings as her Power of Attorney holder and to represent her in the proceedings. Moreover, for the sake of satisfying and genuineness of the petition, the Family Court could always resort to video conferencing through the medium of which, both the parties could appear apart from the Power of Attorney holder of the second appellant appearing for her, so as to completely satisfy itself about the genuineness of the petition filed by the parties just as presently in this appeal, the appellants have both appeared through video conferencing, first appellant from Bengaluru and the second appellant from Toronto, Canada. In this regard, we can also briefly advert to the decisions' relied upon by the learned counsel for appellants.

21. This Court speaking through His Lordship Raveendran J., in the case of Komal S. Padukone v. Principal Judge, Family Court at Bangalore City [MANU/KA/0471/1999 : ILR 1999 KAR 2811], raised the following questions for consideration:--

"6.1. The following questions arise for consideration: (a) Whether a party cannot seek exemption from personal appearance and permission to engage counsel, unless he/she appears in person before the Family Court.

(b) Whether a respondent who is unable to appear personally or who does not appear personally, has no right to contest a proceeding before Family Court. (c) Whether the Family Court having granted permission to the petitioner before it, to engage a Legal Practitioner, deny such permission to the respondent in the same proceedings."

Ultimately, after referring to provisions of the CPC and the Family Courts Act, namely, Sections 9 to 17 thereof, observed at Paragraph Nos. 10 to 14 as under:--

"(10) There is nothing in Act or Rules which prohibits a petition being filed by an Authorised Agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an Agent (Attorney holder). Even a legal practitioner who holds a Power of Attorney to present the petition, may 'present' a petition, but may not be able to 'represent' the petitioner, in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or Rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an Authorised Agent on the date fixed for appearance. A respondent can enter appearance through an Authorised Agent (who can also be a legal practitioner) with an application seeking permission to be represented by a legal practitioner.

(11) A party may choose to appear through and be represented by an Authorised Agent other than a Legal Practitioner, in which event permission under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may, of course, make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a legal practitioners, the parties may be represented by Authorised Agents other than a Legal Practitioners. But, if one side has been permitted to be represented by a Legal Practitioner, the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To do so would be in violation of principles of natural justice.

(12) The ideal situation under the general scheme of the Family Courts Act would be where proceedings are initiated by a husband or wife by presenting a petition in person; notice is issued to the other side; other side appears in person; neither party is represented by any lawyer, unless permitted by the Court; the Family Court at the first instance endeavours to bring about a settlement either by itself or with the assistance of Welfare Experts/counsellors; When such endeavour fails, the respondent is given an opportunity to file objections and then evidence is recorded and decision is rendered; and the entire process is takes only about 3 to 6 months. But an ideal situation is different from normal practical situation. For example in a place like Bangalore, each Family Court has a huge pendency. Every day, a large number of cases are listed and called for preliminary hearing, for conciliation, hearing on interlocutory matters, evidence and final arguments. Very few of them can be taken up for evidence or hearing. It is practically impossible to take up for evidence, all cases listed. The cases drag on for several years for one reason or the other. Each case undergoes thirty to forty hearing dates, in some, many more. Many of the parties are illiterate or working somewhere. Many of women litigants require the assistance of others, even to come to Court. In such circumstances, to require all parties to be personally present on every date of hearing, would add to the misery and hardship of litigants. The Family Court should, therefore, adopt a practical and humane approach and arrange its work suitably having regard to the workload, in such a manner that the parties before it are not put to unnecessary inconvenience.

(13) A combined reading of the Act and the Rules with relevant provisions of CPC make the following evident : (i) A petition to the Family Court may be presented by a petitioner either in person or through an Authorised Agent. The petition may be presented even by an Advocate as an Authorised Agent. But, if the petitioner wants 'representation' by a legal practitioner, he/she should seek and obtain the permission of the Family Court. (ii) A respondent, who is served with notice of the proceedings, may either appear in person or enter appearance through an Authorised Agent (including a Legal Practitioner). But, if the respondent wants to be represented by a Legal Practitioner in the proceedings, he/she should seek and obtain the permission of the Family Court. (iii) In regard to proceedings before the Family Court, 'entering appearance' in response to a notice/summons through an Authorised Agent (including a Legal Practitioner), is different from being represented in the proceedings by a legal practitioner. (iv) While representation through Legal Practitioner without permission is barred, entering appearance in a case, in response to a notice/summons, through a Legal Practitioner is not barred, if a Legal Practitioner, having entered appearance, wants to represent party in the proceedings, permission of the Family Court should be obtained for such representation. (v) When one party has been permitted to be represented by a Legal Practitioner, such permission cannot under any circumstances, be denied to the other party. (vi) The Authorised Agent (or the Legal Practitioner permitted to represent a party) can prosecute or defend the proceedings and represent the party unless and until the Family Court makes a specific order to the parties to appear in person, either on a specified date or on further hearing dates, depending on the facts of the case and stage of the case. Once an order for personal appearance has been specifically made, a party will have to seek exemption from appearance, if he/she is not able to appear in the matter. (vii) Where a Family Court has a large backlog of cases, and there is no possibility of taking up all cases listed on a day, it may restrict the requirement of personal appearance of parties to specified stages like conciliation and evidence. (viii) Where it is possible to do so, consistent with the nature and circumstances of the case, the Family Court, either directly or through Counsellors, in the first instance, assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceedings.

(14) In this case the wife is staying in United States. She left India before the notice was served. She has stated that it will be difficult for her to come over to India before July 1999. She, therefore, sought permission to engage a counsel and exemption from personal appearance till July 1999. There is nothing unreasonable about either of the requests. As a result of rejection of her applications, she has been placed ex parte. If the order is allowed to stand, it would cause irreparable injury to her."

Ultimately, this Court set aside the order of the Family Court in the said case.

22. In Harshada Bharat Deshmukh v. Bharat Appasaheb Deshmukh, MANU/MH/0602/2018 : AIR 2018 Bombay 148 : [2018 (2) HLR (Bom.) 148], the Bombay 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 judgments on the aspect of representation of a party through a Power of Attorney and in the context of Section 13B of the Act, observed, that there is nothing under the said provision which would bar a Power of Attorney holder to represent a party and observed as under:-

"(10) Section 13B of the Hindu Marriage Act do not contain any provision abrogating the power of power of attorney 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. The Judge, Family Court has not given any consideration to the provisions governing the procedure in relation to the proceedings of mutual divorce filed under Section 13B of the Hindu Marriage Act. It is imperative on the part of the Family Court to entertain the application for divorce by filing mutual consent presented to it on the ground that the parties have been residing separately for more than a year and they have not been able to live together and they have mutually agreed to dissolve the marriage. The procedure for dissolving the marriage is set out in sub-section (2) of Section 13B which mandates the Court on being satisfied that a marriage has been solemnized and that the averments in the petition for mutual consent filed by the parties is true, to pass a decree of divorce dissolving the marriage, after affording an opportunity to the parties and after making such enquiry as it thinks fit. The Court has to thus ascertain the expenses of a marriage and irrevocable break down of the marriage with no possibility of any reconciliation."

23. A Division Bench of the Madras High Court in case of Sudha Ramalingam v. Registrar General, High Court of Judicature at Madras [MANU/TN/3308/2014 : AIR 2015 (NOC) 266 (MAD.)], has opined that a party residing abroad could be represented through a Power of Attorney and there is 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 or directed by Family Court and it could be by utilization of video conferencing technology also.

24. Similarly, in Dasam Vijay Rama Rao v. M. Sai Sri, MANU/AP/0311/2015 : ALD-2015-4-757 : [2016 (2) HLR (Hyd.) 372], on a detailed discussion of the various provisions of the Family Courts Act, Order III Rule 1 of CPC, Section 13B(1) of the Act, the Andhra Pradesh High Court permitted the representative of a party through a Power of Attorney holder and ultimately, in Paragraph No. 21 observed as under:-

"(21) 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."

25. Therefore, in view of the aforesaid discussion, we are of the view that the Family Court was not right in rejecting the application filed under Order III Rule 2 read with Section 151 of CPC and thereby, granting liberty to the parties to file a fresh petition under Section 13B(1) of the Act. Hence, the said order is set aside.

26. 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 on 12/02/2020.

27. Further, in order to satisfy itself, the Family Court is at liberty to direct the parties especially the second appellant to appear through video conference or skype, before the Court and if such a direction is issued, the second appellant shall comply with the said direction.

28. The Family Court to dispose of the petition filed by the parties in accordance with law. Since the parties are represented by their common counsel, they are directed to appear before the Family Court on 26-11-2020.

29. The appeal is allowed and disposed in the aforesaid terms.

 

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