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In a divorce proceeding, if one of the party is unable to be present for the execution of divorce proceedings because he/she lives outside of India, he/she can give someone else the authority to represent through a notarized Power of Attorney. This can be done by filing an application with the Family Court under Order III Rule 2 of the Code of Civil Procedure (CPC).

Order III Rule 2 of CPC provides "The recognised agent 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;"

A Power of Attorney is a document that grants someone else the authority to act on someone's behalf when they are unable to do so themselves. This can include signing contracts, making financial transactions, and other actions.

Landmark Judgments:

In the case of Aditya Jagannath and Ors. Vs NIL, M.F.A.No.4453/2020 (FC), the appellants are a couple who got married in 2017 as per Hindu customs but failed to cohabit and later got separated in the same year. After three years of being separated, they realized that their marriage had irretrievably broken down and decided to get a divorce. The wife, who lives in Canada, was unable to be present for the divorce proceedings, so she executed a notarized Power of Attorney in favor of her father, allowing him to represent her in the proceedings. The husband and the wife's father then signed the divorce petition and presented it to the Family Court. An application was also filed with the court under Order III Rule 2 of the CPC to allow the wife's father to represent her, but this application was rejected. As a result, an appeal was made to the High Court.

The Karnataka High Court held that the Family Court was incorrect in rejecting the application filed under Order III Rule 2 and Section 151 of the CPC. As a result, the original order of the family court was set aside. The court further observed “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”.

In the case of Mohanan v. Ajitha & Anr. Mat. Appeal 470/10, the appellant challenged an order from the Family Court that dismissed their divorce petition on the grounds that it was presented through a Power of Attorney holder. The grounds for the divorce included adultery and cruelty. The Kerala High Court, on appeal, allowed the divorce petition, stating that there is a specific provision in the Code of Civil Procedure that allows a petition to be filed through a Power of Attorney holder, and therefore there is nothing wrong with the Family Court considering an application that is filed in this way.

In the case of Harshada Bharat Deshmukh vs Bharat Appasaheb Deshmukh (WRIT PETITION ST. NO.1788 of 2018), the Family Court declined to register a petition for divorce by mutual consent from a couple under Section 13B of the HMA, 1955 because the consent terms did not have the signature of the wife and her father had signed the document on her behalf. The High Court of Bombay overturned this decision, stating that a Power of Attorney holder is an authorized individual through whom pleadings can be properly made and verified. The court also noted that the provisions of the Civil Procedure Code (CPC) are relevant to proceedings before the family courts, and under the CPC, pleadings can be verified by either the person making the pleading or by someone else who is familiar with the facts of the case. The court further stated that it was essential for the Family Court to accept an application for the dissolution of marriage by mutual consent if it stated that the spouses have been living separately for more than a year and have mutually agreed to end the marriage.

In Mrs. Komal S. Padukone vs Principal Judge, Family Court, ILR 1999 KAR 2811, the Karnataka High Court held that “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.”

In Dasam Vijay Rama Rao vs M.Sai Sri, C.R.P.No.1621 of 2015, the Andhra Pradesh High court observed “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.”

References:

https://primelegal.in/2021/02/18/party-can-be-represented-vide-power-of-attorney-in-divorce-proceedings-high-court-of-karnataka/

https://www.legalserviceindia.com/legal/article-4236-permissible-for-the-parties-to-be-represented-by-their-partners-or-siblings-in-mutual-divorce-proceedings.html

https://www.hindustantimes.com/mumbai-news/now-personal-presence-not-must-for-divorce-by-mutual-consent/story-kn9beO6KRPJDB1GzacBcaP.html

https://www.lawyersclubindia.com/articles/divorce-proceedings-by-power-of-attorney-11938.asp