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Ramesh   17 January 2024

Can a partner file a divorce suit in india via gpa (father), this is not a mutual consent divorce

Respected Team, 

1. Can one of the partners file a divorce suit in India via GPA/SPA given to the father/mother while he/she is residing in some other country? 

As learned from online sources, GPA/SPA cannot be allowed by the court in the Divorce case unless it is a mutual consent divorce case. Please confirm. 

Note:

1. This is NOT a mutual consent divorce.  

2. The SPA/GPA.document is not authenticated by SDM of the respective area and the SPA/GPA is not signed by the father/mother (to whom it has been given), though GPA/SPA is signed by petition and notarized. 

3. The GPA/SPA does not have the exact address, area, street, or any contact of the petitioner who is residing abroad. Example: On SPA/GPA petition just mentioned California, USA. (California is one of the states in the USA). There are no details that can help identify the location or contact of the petitioner. 

 



Learning

 4 Replies

T. Kalaiselvan, Advocate (Advocate)     17 January 2024

A divorce case can be filed by either of a party thorugh her or his power agent even if it is a contested di vorce.

There is no restrictions to do so. 

  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.”
  1.  [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”

The technical faults can be rectified if found to be rectifiable.

Ramesh   18 January 2024

Hi Sir, 

I have referred both the cases mentioned above, Amardeep Singh vs Harveen Kaur 2017 (8) SCC 746  & Komal S. Padukone vs. Principal Judge, Family Court [ILR 1999 KAR 2811]

1. 2017 case is a mutual divorce case. 

"Needless to say that in conducting such proceedings" :: I assume, Such Proceedings here can be interpreted as "Divorce by mutual consent". 

2. 1999 case is too old to be used as a citation. 

My reading/understanding may be wrong, request you please correct incase. 

Can someone please provide citations where SC/HC has allowed the filing of divorce cases via SPA/GPA. 

Dr. J C Vashista (Advocate )     18 January 2024

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.

 [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.

Dear Ramesh ji,

What do you mean by the term "partner" in marriage used by you in the facts posted by you?

Thanks and regards

Ramesh   18 January 2024

Hi Vashista Sir, 

Thank you for the response,

Partner - Is either wife or husband, one among the couple.  

Further extending the situation in this case, 

1. Can an unknown third person (probably assuming him the boyfriend of the wife) apply and obtain a VISA for the child of this couple without any intimation, knowledge, or court permission?

it's needless to mention the wife is involved in this VISA fraud. 

 


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