Husband's right:to know an address of secretive nri wife
Law Querier
(Querist) 01 April 2012
This query is : Resolved
My wife has filed divorce petition against me on mental cruelty ground in India.She is in Canada and I am in India.Petition filed by POA to her father.I don't agree to divorce.Her residential address mentioned in Divorce petition and in POA is not current address but it is her previous/old address. I don't know where she is residing now.There is no communication with her and with in-law members now.1)How can I know her current residential address? 2)Is it my legal right to know her current residential address in canada?
Note:A)She has mentioned her address of India in Petition and in POA.But she is living in Canada since seven years.
Raj Kumar Makkad
(Expert) 01 April 2012
If POA is not countersigned by Indian Embassy/High commission of Canada and further registered with the local registrar, it is purely invalid and cannot be given reliance to.
In divorce petition, there shall be a reconciliation meeting in which the presence of your wife is must. In case she do not come (which is full hope) then definitely a presumption shall be taken against her and in that event her petition shall be dismissed. Your wife cannot be substituted by her POA holder father for such meeting. The evidence of the petitioner shall also be of personal. You may get the correct address of your wife during these proceedings with the help of court.
Shonee Kapoor
(Expert) 02 April 2012
Rightly said by Ld. Makkad.
I would suggest a different route.
File Habeas Corpus in HC stating that she is detained and you don't think that it is your wives signature.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 02 April 2012
Very Good idea of Shri Shonee : File Habeas Corpus in HC .
If matter in Family Court, then only there shall be a reconciliation meeting, if in District Court [Senior Division Civil], you demand mediator service.
Under all circumstances, she have to appear for Evidence, and in cross , u get right to ask where she lives.
Any child??
If no contact for 7 years [she is living in Canada since seven years] It is an empty cell of marriage!!
contesting such petition is also of no use.
U seems had not taken any action against her till date, Why?
Now why u want to continue that empty relationship??
Dear Shonee Saab, & Shri Raj Saab, Did u hear any time , getting divorce, or even filing Divorce Petition by POA??? Usually Court insists on Personal attendance . POA cannot depose, and Div Petition need V/F of Deponent,even to file it.
Send Legal notice to Notary, that ur wife was not in India, how u signed BEFORE ME.
COMPLAIN AGAINST NOTARY, WILL REVEAL HER ADDRESS ALSO. PASSPORT IS EVIDENCE OF HER TO BE IN CANADA AT THE TIME OF NOTARY.
Once proved POA is fraud, Divorce Petition will be dismissed.
Nadeem Qureshi
(Expert) 02 April 2012
Dear Chirag
no need to worry, file an objection and argue on POA, the burden of proof lies upon her father or her advocate to prove it that the signature on the POA is genuine and she signed the POA, after that you can object on witness signature and if you are sure that she is in canada and POA execute in india not come through canada, you can chellenge.
feel free to call
Law Querier
(Querist) 02 April 2012
Thank you Makkad sir,Shonee sir and Shroff sir..
sorry,I was not mentioned some information of my case.here it is....
We have married on Feb.2011 (just one year has completed). No child. She lived only 25 days with me after marriage in India.She went back to Canada after marriage.
SHE WAS LIVING ON THE PREVIOUS/OLD ADDRESS ON THE DATE MENTIONED IN POA AND PETITION.i.e.,She moved from her old address after producing POA and petition.
But, Now where she is living I don't know.
N.K.Assumi
(Expert) 02 April 2012
I don't know for sure how you take her as your wife, who kept herself from you half revealed and half conceal with her soul within? Is it worth calling her your wife?
Raj Kumar Makkad
(Expert) 02 April 2012
What do you want to serve by knowing her correct address in the lastly given facts?
She has filed divorce petition in India. Let her come for reconciliation meeting as well as for her evidence and ask such silly question from her.
Deepak Nair
(Expert) 02 April 2012
Rightly advised by the experts above.
ESTHERPRIYA
(Expert) 02 April 2012
You can file petition for RCR - Restitution of conjugal rights petition in court so that she has to oblige.
Adv. Chandrasekhar
(Expert) 02 April 2012
filing habeas corpus petition to find out the wife's correct address by blaming the POA holder obtained her signature by confining is the funniest part of legal advice and total misuse of law.
Shonee Kapoor
(Expert) 05 April 2012
I agree, it is funniest advise you would have heard Adv. Chandu.
But, it works. :-)
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Shonee Kapoor
(Expert) 05 April 2012
Besides, a right question has been raised by ld. Makkad, what you want to serve her by knowing her address.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Tajobsindia
(Expert) 10 April 2012
I disagree to Mr. Makkad and quote his sentence which I disagree to "If POA is not countersigned by Indian Embassy / High commission of Canada and further registered with the local registrar, it is purely invalid and cannot be given reliance to."
The disagreement point is that there is "no need of POA to further register with a local registrar"
Reasoning:
When a party who is living overseas gives a special power of attorney in favour of someone named say Mr. or Mrs. X or Y and it was executed by the party to appear before the concerned Court and testify about the contents of the petition and the petitioner has signed the petition before Indian Consulate / High Commission of India in an overseas country under S. 3 (2) of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1947 then under such conditions the documents do not require any further evidence and or further reigistration with a local registrar.
I disagree to Mr. Shroff and quote his sentence which I disagree to "Dear Shonee Saab, & Shri Raj Saab, Did u hear any time, getting divorce, or even filing Divorce Petition by POA??? Usually Court insists on Personal attendance. POA cannot depose, and Div Petition need V/F of Deponent even to file it."
The disagreement point here is that if we are talking specifically of Family Courts formed under FCA, 1984 then through Spl. POA and or via Proforma Party either and or both party can file divorce petition via spl. POA route as well as that Spl. POA holder can even enter into witness box and depose in respects of the facts which are in his knowledge and seek divorce on his principal(s) behalf. There are numerous case laws even from your HC (Mumbai) to this regard. There are case laws on video conferencing in Family Court as well as Ordinary Civil Courts where via Spl. POA people (spouses) have got plain vanilla divorce to and have done with MCD too. See my other post in Family Law forum on case laws on video conferencing in case of further doubt Mr. Shroff!
I diagree to Mr. Nadeem too and quote his sentence which I disagree to "after that you can object on witness signature and if you are sure that she is in canada and POA execute in India not come through Canada, you can chellenge. feel free to call"
The disagreement explanation is already in place in reply to Mr. Makkad above and until one knows where the Spl. POA executed one cannot jump guns !
Now to @ Author
If you were married in 2011 and after POA signage / executed in India if she moves to Venus how does it matter in service of instance case? She has executed a Spl. POA and that Spl. POA holder is competent to enter into witness box Re.: Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd. AIR 2005 SC 439 wherein Supreme Court had held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become witness on behalf of party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. However there can be no dispute that the attorney of the petitioner (here the wife) can appear in the Court on behalf of the party and do the act as specified in power of attorney. An attorney is not an incompetent witness. He can appear in the Court and depose in the Court as a witness in respect of facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal. Whether the parties were married on a particular day, is not a private act of the parties. Marriage is normally a public act in this country and evidence can be given by anyone who has knowledge of the fact. Whether the parties are living separate or not is also known to other people associated with the parties and is not something secret. Similarly, for how long parties were living separate can be deposed in the Court by any person who is aware of the facts. If an attorney aware of these facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness or his statement would not be recorded. Similarly an attorney, on the basis of instructions / directions given to him, can answer the queries, if there was any possibility of parties patching up and living together or the marriage has broken down irretrievably. An attorney has to be allowed to appear in the witness box and make statement. The Court may reject that part of his statement which is based on hearsay or which he has no personal knowledge. But he cannot be prevented from appearing in the witness box and deposing and answering the queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo Bhojwani (supra) wherein Supreme Court had not debarred an attorney from appearing in the witness box but the Supreme Court has stated the facts which are only in the knowledge of the principal, about those facts attorney cannot testify in the Court.
Likewise in case of DHC Judgment in Neelima Chopra vs. Anil Chopra 1986 (11) DRJ 188 held that if both the parties, by way of affidavits or through counsel, state that they are married, and are able to produce proof of the marriage and that they have been living separately and have not been able to live together for the prescribed period, then there can be no reason as to why the Court should not record its satisfaction as envisaged under appropriate Section of Hindu Marriage Act, despite the fact that parties had not appeared in person and pass a decree for divorce.
Further in a DB Judgment from Calcutta High Court in Annalie Prashad vs. Romesh Prashad AIR 1968 Calcutta 48 the bench made following observations :
"3. In our opinion, neither of the above two reasons can be sustained in law. The Special Marriage Act by Section 40 attracts the Code of Civil Procedure subject, of course, to the other provisions of the said statute and to such rules as the High Court may make in that behalf. The learned trial Judge does not say that there is anything in the statute or in the rules, which would conflict with the view that affidavit evidence would be permissible, unless we agree with him that the Act, having prescribed that the parties should be heard, would necessarily require their personal appearance or presence before the Court. We do not, however, think that that is the consequence of the words ``hearing the parties'` and, accordingly, the reason given by the learned trial Judge in that behalf cannot be accepted We are also unable to agree that, in a case of divorce by mutual consent, affidavit evidence should be excluded on the ground that in such a case, it is desirable that the parties themselves should be present in Court. In the premises, Order 19 of the Code of Civil Procedure would be attracted by the above special statute as part of the Code and would not be excluded either expressly or by necessary implication."
Hence, where the parties are living far away from the inherent jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their principal in all other cases. The attorney can also act in matrimonial cases as per instructions of their principle. The Court can take necessary precautions to prevent frauds being perpetuated on it but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of
the attorneys.
Short of long here is that she is within her rights to file spl. POA and get her divorce petition serviced and that spl. POA holder can very well enter into witness box. The Spl. POA in presented fact before us is a valid POA as it was executed in India from an address she lived in past and before leaving for Canada. In my opinion fishing her out will not serve any purpose however HCP can be one of the option to delay the cause title but then if she has filed for Maint. and suppose the spl. POA files another maint. application say under DV Act and or say under S. 125 CrPC then all cause tile (interim maintenance from the date of application) meters will be on just for knowing her address, which is a futile exercise.
Sum total, carry on either contesting the divorce and or agreeing to her charges (allegations) and get over with Her once for all as she is in a overseas country and no point bringing her back to India when she has made up her mind to divorce from the relationship.
