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Divorce Proceedings by Power of Attorney: All you should know!

Introduction-

There is no doubt that divorce is one of the most troublesome periods of life that a married couple experiences. In India, since divorce is considered as a personal issue, it is associated with religion such as The Hindu Marriage Act, 1955 oversees the separation for the Jains, Sikhs, Hindus and Buddhists. The separation laws for Muslims are dealt under Dissolution of Muslim Marriage Act, 1939, Parsis are governed by Parsi Marriage and Divorce Act, 1936, and Christians are dealt by the Indian Divorce Act, 1869. Similarly, the inter-community marriages are administered under Special Marriages Act,1954.Now, granting of a Power of Attorney is not only limited to contractual or property related transactions but it is gaining it own significance in matrimonial disputes namely divorce. It is a legal process that includes the drafting of a document which allocates to someone else the ability to act as your legal representative or a lawful delegate. POA is regulated by the Power of Attorney Act, 1882 and various other important laws in India.

Kinds of Divorce Petitions in India:

1. Divorce by Mutual Consent:

In this particular type of divorce both the spouses agree to terminate the marriage. In such case, usually, the terms of which is concurred by both the spouses. Different laws provide different periods determined for the completion of procedure of divorce. Such as, as per Section 13B of HMA, 1955 to start the proceedings of divorce it is essential that both the spouses must be living separately for a base time of one year.

2. Divorce without Mutual Consent:

In this particular type of divorce only one of the spouses is eager to end the marriage. The separation without mutual consent can be looked for on the grounds namelyCruelty, Adultery, Desertion, Conversion, Mental Disorder, Presumption of Death andRenunciation of the World.Aside from these grounds, separation must be acquired by method of mutual consent.

In the case where divorce is through mutual consent, the same can either take place through the parties in their physical appearance or else by the way of POA. When it comes to POA, it usually happens when one of the spouses is not able to appear during the proceedings, which may happen due to numerous reasons such as, it could be possible that if an individual is physically not present in the country, he still might want to initiate a divorce through opting the method of POA. Nonetheless, this standard doesn't have universal applicability, specifically in situations where the presence of the individual himself is covetous for evidence which could be significant to the proceedings, then this way won’t work. While filing a divorce petition via power of attorney the first thing to be done is to file a Power of Attorney, approving another person to present on your behalf.

Stages in filing a Power of Attorney-

1. When the person is presently in India but wanting to leave:

Stage 1: Filing for a Power of Attorney

If a person is willing to leave the country or is already now out of it then he may choose to file a power of attorney for divorce. If the person is planning to leave, then he may note down all the terms of Simple POA on a Stamp Paper.

Stage 2: Visiting the Registrar Office

Contingent on where you are dwelling, visit the registrar’s or sub-registrar’s office. Apart from the POA holder, there need to be a physical appearance of 2 witnesses in order to proceed with this process.

Stage 3: Need of supporting Documents

Apart from the witnesses there is a need for you to carry certain necessary self-attested documents such as address proof, identity proof etc. before going to the registrar’s office.

Stage 4: Remaining Formalities

This is usually the last step of filing a POA, where you will be asked to click a photo of you, the POA holder and the witnesses. After all such formalities are done and dusted a copy of the same will be kept by the registrar and you for records with a registered stamp.

2. When the person is not present in India:

If the person is not physically present in India, what is to be validated by the Indian Embassy or Consulate in your residenceis the simple POA. It will be signed by the Embassy and then sent to the POA holder in India, through registered post. After receiving the post, the POA holder is needed to visit the workplace of the Sub-Divisional Magistrate with the necessary records. It usually takes approximately 15 days’ time to process the POA and once it is stamped by the SDM it turns out to be a registered POA.

Types of Power Of Attorney-

1. Nondurable Power of Attorney

When the agent is given a restricted amount of authority to act then it is a nondurable POA. It endures just for a predetermined period. The person granting a POA is the Principal and similarly the person receiving it is the Agent. This particular type of POA can be denied at any time forwhatsoever reason as the Principal may find deem fit. There are different potential reasons behind creating a nondurable POAfor a principal. There is a requirement for an agent to show up for a court hearing or tackle with documentations during different situations. For instance, if the principal is out of townwhile during a divorce process, or maybe he’s not in a good condition physically and so forth. A principal can make a nondurable POA for a wide range of purposes.

2. Durable Power of Attorney

Durable POA can be said to be another type of POA. It is broader than the previous one with unlimited authority. It is powerful in any event, when the principal gets bumbling or unfit to deal with their undertakings. In a general sense, a separation case won't need a durable POA. Usually, it is obligatory to specify the type of POA is durable in order to abstain from letting it become a nondurable POA as a matter of course.

Apart from these 2 main types of POA, there are also other 2 types of POA relying upon the hour of beginning. One is ‘Immediate’ under which, when a principal appoints the agent and the POA takes effect rightaway. Other is ‘Springing’ which comes into effect simply after the principal is proven out-of-action.

Relevant Case Laws-

In the case of Mohanan v. Ajitha & Anr.the Appellant challenged the order given by Family Court, as the Court dismissed the divorce petition of Appellant stating the reason that the petition was presented through the Power of Attorney Holder. The grounds on which the appellant had sought divorce were due to adultery and cruelty.

The Kerala High Court in appeal permitted the divorce petition holding that the petition can be presented by Power of Attorney holder and furthermorenotedthat there is an explicit provision under the Code of Civil Procedure empoweringa petition to be documented through a POA, there isn't anything incorrectin the Family Court entertaining an application despite the fact that it is filed through power of attorney holder.

In the case of Harshada Bharat Deshmukh vs Bharat Appasaheb Deshmukh, the Family Court refused to enlist a petition filed by a couplelooking for separation bymutual consentunder Section 13B of the HMA, 1955due to the reason that the consent terms did not hold the signatureof the wife and her dad had signed the record for her sake.

The High Court of Bombay struck down the order, stating that power of attorney is an approved individual through whom pleadings can be appropriately made and checked. Further addedthat the provisions of the Civil Procedure Code (CPC) are material to the proceedings under the steady gaze of the family courts and under arrangements of the CPC, pleadings can be checked by either the individual pleading it or by some other individual who is familiar with the realities of the case. The court also stated that it was basic for the Family Court to acknowledge an application fordissolution of marriage by mutual consentin the event that it expressed that the companions are living independently for longer than a yearand they have commonly consented to break up the marriage.

Conclusion-

Now-a-days the scope of a POA holder is considerably increasing and there could be several reasons to it. The option of POA lies best when one of the parties cannot appear before the court of law. The courts in various judgements have accepted the fact that where the appearance of either of the parties is not required POA can take place in that proceeding. But at the same time when court feels that the physical presence of both the parties is necessary to take the case further, then both the parties need to be present.

References-

  • https://vakilsearch.com/advice/divorce-via-power-attorney/
  • https://blog.ipleaders.in/divorce-law-in-india/#Important_Judgments_on_divorce
  • https://www.vakilno1.com/legal-news/divorce-petition-filed-through-power-of-attorneyholder-is-maintainable-kerala-high-court.html
  • https://www.hindustantimes.com/mumbai-news/now-personal-presence-not-must-for-divorce-by-mutual-consent/story-kn9beO6KRPJDB1GzacBcaP.html

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Shreya Malhotra 
on 16 September 2020
Published in Family Law
Views : 748
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