Invalid power of attorney in mcd
Law Querier
(Querist) 16 May 2013
This query is : Resolved
My question is regarding technical fault of Power of Attorney and this is not repeated query. NRI wife had entered a divorce case through her PoA u/s. 13(1) (ia) in district family court. The power of attorney made by wife is not authenticated by Indian Consular of Canada but, attested by Notary Public of Canada. The matter of invalid PoA was already mentioned by respondent-husband in his reply. Now, the contested case has converted to Mutual Consent Divorce(Sec.13B). My questions are,
1. If the power of attorney is not valid as per law then Court can grant mutual divorce in MCD case?
2. The court does not know about the fact of invalid power of attorney although a husband had mentioned in his reply when he contested divorce. What is the way to take in concern of court about invalid power of attorney in MCD case (Sec.13B)?
3. Can husband inform this fact about invalid power of attorney to court though he has given consent in mutual consent divorce?
Raj Kumar Makkad
(Expert) 16 May 2013
If at any stage of the proceeding, it is brought by husband to the knowledge of the court by moving a specific application only then court can deny to entertain such petition because proper authorization is mandatory in the given case when the wife in person is not available in India. Husband though has agreed to MCD but not to illegal POA.
V R SHROFF
(Expert) 16 May 2013
PERSONAL APPEARANCE of both parties, ON SECOND MOTION, IS COMPULSORY for granting MCD, except in rare cases. POA is not admissible. The Affidavit must clearly mention confirmation of Wife [as in Canada] and must bear endorsement of both embassy.
Judge take Oral Evidence from Wife's parents for consent too, before granting Divorce.
Husband must not object POA
Law Querier
(Querist) 16 May 2013
@Shroff sir,I am confused between your opinion and Delhi High court Judgement.
Hon'ble High Court of Delhi in the case of Vinay Jude Dias Vs Ranjeet Kaur CM(M) 1030/2008 and in the case of Neelima Chopra Vs Anil Choprara 1986(11) DRJ 188 held that the deecree of divorce by way of mutual consent may be granted even in those cases where parties are not able to appear physically before the court and they have duly signed their affidavits or authorized some one through power of attorney to appear on behalf of them.
adv. rajeev ( rajoo )
(Expert) 17 May 2013
When it is mutual consent it is not necessary to bring it to the notice of the court that proper procedure is not following while executing the POA
Dr J C Vashista
(Expert) 20 May 2013
It is compulsory on the part of both the consenting parties for MCD to appear in person, however, appearance in first motion may be exempted by the Court for either of the parties but PAO has to be notorised in Canada and countersigned by area SDM/EM.
