Poa in mcd-acts/family court/high court/supreme court
Law Querier
(Querist) 04 July 2013
This query is : Resolved
According to Sec.13B(1) of Hindu Marriage Act,1955, The Court gets jurisdiction to consider a petition under Section 13B of the Act for divorce by mutual consent, only if a petition for that purpose is presented to the Court by both the parties to the marriage together.
According to Sec. 10(a) of the Indian Divorce (Amendment) Bill,2001, the Family Court directed personal appearance of both the parties for purpose of its satisfaction regarding an inquiry.
According to High Court Judgments, Mutual Consent Divorce through power of Attorney is allowed.
Acording to Supereme Court Judgement, the personal presence of both parties required for the purpose giving evidence to show to the satisfaction of the Family court that the consent for divorce exist till the end, there is no withdrawal of the consent by either of them & if any of them is absent there will be no presumption that consent given during the first motion for the divorce shall continue till the end hence both of them should be present at the time of second motion too for ascertaining their consent for divorce.
In following High Court references, Family courts had dismissed the petition initially directing physical presence of party/parties is necessary in mutual consent divorce.
1. Smt.Lakshmi Prasanna vs Counsel For The Petitioner: Sri S.B.Tirumal Raj on 19.03.12- Andhra High Court
2. Smt. Anshu Rani vs Rohit Vij on 18 March, 2010- Punjab Hariyana High court
3. Navdeep Kaur vs Maninder Singh Ahluwalia on 2 March, 2010- Punjab-Hariyana High Court
4. Vinay Jude Dias Vs. Renajeet Kaur on 19.09.2008-Delhi High Court-Just.Shiv Narayan Dhingra
5. Neelima Chopra vs Anil Chopra on 17 March, 1986-Delhi High Court
Que: Can Family Court allowed POA holder in MCD by considering reference of high court judgments (Is there any judgment where family court allowed POA in MCD proceeding and High court also allowed it?)? OR It is only when an appeal is made before the High Court against decree of divorce by mutual consent then the High Court may permit P.O.A. holder to remain present in proceeding in mutual consent divorce?
ajay sethi
(Expert) 04 July 2013
1)The physical presence of both the parties is generally asked and necessary to verify the authenticity of the identity of the parties and consent of the parties.
2)however in many cases some of them can not remain present before the Family Court to give consent in matrimonial matters. There is no illegality to solve such difficulty by adopting novel and available ways. This hurdle can be crossed with the help of advanced technology of communication and new scientific methods. Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent. Even though, the counselling with the Marriage Counsellor can be facilitated by virtual presence.
3) through video conferncing this problem can be solved .
4) in case wherein an objection has been raised about petition been presented by POA directions can be sought from court to verify consent of parties through video conferncing .
5) for judgements visit indian kanoon website
R.K Nanda
(Expert) 04 July 2013
agree with expertSethi.
