@ Author,
Issue 1: Video conference route and/or via spl. PoA route mutual consent divorces (MCD) when one and/or either party as the case may be is not present in Court at the time of motion(s); how to do it?
Below are pari materia advise for all NRI / PIO husbands in such situation as raised by this querriest adding that the provisions contained under S. 28 Special Marriage Act OR S. 10 (A) Divorce Act is pari materia with the provision contained in S. 13 B HMA and these three covers Hindus / Jains / Parsis / Sikhs / Christians / Inter religion marriages / Foreigners marriage with Indians and vice versa parties seeking MCD via video conference and or spl. PoA route due to either and or both party absence before concerned Indian Court.
First of all put all your submissions which you have been putting till now here in a form of Joint Application and seek the permission of the concerned Court to hold video conference to decide the matter if PIO / NRI is not appearing in person.
Two relief’s may appear once party(s) as per case put above Joint Application; One it may as will be turned down and second it may be allowed.
In case if it is allowed then a spl. PoA should be executed by party(s) as the case may be to appear via executed spl. PoA before the concerned Court and spl. PoA person can testify very well about the contents of the petition. It is called Performa party procedure. The party(s) as the case may be has to sign the petition before Indian Consulate / High Commission of India in respective country(s) either of them and or they are at that time residing and it is done under S. 3 (2) of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1947 under which it means the signed documents do not require any further evidence in court of Law in India. This is tombstone material precedent as per Hon'ble SC and Govt. / Legislative intent and can't be be challenged as of date.
I’m also aware that Kerala, Gujarat, Karnataka, Bihar, AP courts have allowed witness depositions via video conferencing route and it is not un-heard of a practice.
Now in above scenario onece it is allowed all the party(s) as the case may be need to do is to after above two sub-processes (i.e. executing spl. PoA + signing doc. u/s. 2 (2) The Act 1947 request Court for video conference date / time and certified copy of Order is conveyed to concerned Indian Consulate / High Commission of India in respective country(s) so that either party(s) as the case may be appear via video conference and get over with First and or Second Motion under MCD.
In case if it is turned down then file another Joint Application and seek permission of the court to allow (respective) special PoA’s of party(a) as the case may be to place evidence and allow First Motion as per Law u/s 13 B (1) HMA followed by Second Motion in due course of time as per Law all done now-a-days via spl. PoA.
Now in the above scenario second once it is turned down then follow above and place as reliance below binding SC case law with persuasive other State’s HC Judgment bze in mutual consent divorce cases, evidence of special power of attorney is enough as per the following judgments:
Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd. AIR 2005 SC 439
https://indiankanoon.org/doc/553344/
Vinay Jude Dias Vs. Ranajeet Kaur (2008 (106) DRJ 183) https://indiankanoon.org/doc/1608385/
Neelima Chopra vs. Anil Chopra 1986 (11) DRJ 188
https://indiankanoon.org/doc/1471809/
Annalie Prashad vs. Romesh Prashad AIR 1968 Calcutta 48
https://indiankanoon.org/doc/1518969/
Re.:
https://www.lawyersclubindia.com/forum/Video-conferencing-justice-to-persons-of-indian-origins-43740.asp
Issue 2: LoC: How to facilitate spouse travel under a live LoC to attend Court case
If a NRI / PIO husband are doubtful if a LoC is actually in place or just doing fishing exercise per se then what I would suggest is to follow first above exercise and placing certified copy of just the application and days order sheet in above exercise file a Writ before State HC to give directions to External Affairs Ministry to facilitate to and fro transit of a POI / NRI who is summoned to attend a hearing before concerned Court on such as such date. Thus with HC directions LoC will be removed and your royal entry back to Indian soil will be event free. Do seek true certified copy of above advised HC Writ Order with you before touching any one of the 27 Int. Airport in Indian soil:-)
I‘m not touching 498a quash / S. 151 CrPC / S. 125 CrPC etal. and supposedly mentioned wordings of MCD and your thought line on wording sof MCD which I found humerous as they are not the way legally written in this felicitation with micro dozen que. thread post J as they will follow one after another once first LoC via Writ route is removed on your name followed by MCD coursel of parties with an executed Agreement with their T & C followed by getting allowed either a PoA (performa party) route or getting allowed a Video Conference (performa party) route which are all possible to do sitting in cushy overseas atmosphere sirf as per law bolney wala and karvaney wala vakil hona chahiye aapke pass jo upper likha advise sirf follow karey…………..
