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Upriya (engineer)     03 September 2012

Mutual consent if one of the party dont turn after final cou

Dear Lawers,

I have applied for divorce under mututal consent with my husband 6 months before. After filing we had session with counselor and then he went to abroad. Now on divorce date, he was not able to travel to India so, counseling is done via video conference and he sent a power of attorney scanned papers to his father, but judge has not accepted the power of attorney papers.
I just want to know what will happen if he doesn't appear on the given next date. Till then I will have to keep waiting for him to come to India and appear in court or there is other way out.
Also can you please let me know the procedure to get power attorney for his father when he is out of India?


Please provide your valuable suggestions.
 



Learning

 2 Replies

Adv. Nikhil Seth (legal consultant (9867264707))     03 September 2012

First of all he cannot give power of attorney to anybody to reperesent on his behalf. Court has rightly turn down his power of attorney . He has to personally present himself for divorce proceedings.

The second motion should be made after 6m but within 18m from the date of presentation of the petition. So, the  second motion can be made at any time till the expiry of 18m period. The second motion is to be made by the husband and wife jointly. There can be no exparte judgement in mutual consent divorce.

If you suspect that he may not appear on his own then, it will be better if you be in touch with him before the date of second motion and talk to him about it, so that he'll come without fail. If he is unable to attend the court due to some reason on that date then, take a short date of his convinience after discussing with your lawyer. Second motion can be moved at any time before the expiry of 18m from the date of presentation of the petition.  But if both of you do not make the second motion within the prescribed period, then your Mutual consent Divorce (MCD) petition shall be dismissed.

Though the court sees that your husband is not present on any of the dates, there cannot be any exparte judgement in MCD. The concept of MCD itself is that the husband and wife mutually consents to dissolve the marriage and this consent should be shown in the second motion also till the decree is passed. If your MCD petition gets dismissed then you can file petition unilaterally under any other ground if available to you.






 

Tajobsindia (Senior Partner )     03 September 2012

I completely disagree to Nikhil’s reply;

1. In MCD PoA can very well be given. MCD second motion has been allowed on PoA basis. Case laws are there.
2. In MCD in instance facts before us if via VC counseling was earlier given then second motion via same VC can also happen. MCD second motion has been allowed on VC read with PoA basis. Case laws are there.
3. Second Motion can even be extended beyond 18 months. Case Law (especially from SC) exists.

Search some of my older posts on MCD via VC as well as via PoA which I have already placed here in LCI as VC / PoA / MCD case laws on similar facts.

In my opinion one Lawyer of either party is weak in his pleading in instance facts so it seems to me that is why Court did not accept PoA yet carried counseling via VC which makes this fact filled query more interesting yet doable.

VC = Video conferencing
PoA = Power of Attorney


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