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Krishna Ramesh (Self employed)     19 June 2011

Is Physical persence of GPAholder compulsory for Vakalatnama

Hi all

I am an NRI and respondnent in a divorce case running in Principal Judge Family court Bangalore. I have given GPA to one of my uncles who lives in another state and is unable to travel because of health reasons.

My advocate is refusing to present the vakalatnama sent to him by post by the GPA holder and is insisting that my uncle would have to be physically present in the court to give the Vakalatnama. I have checked with number of advocates in other states they claim that the gPA holder doesn't have to physically travel there and can do it by mail.

  1. Please advise if my advocate is correct.
  2. If yes, then is there any other way out to make it a valid vakalatnama without physically travelling to Bangalore.

Thanks

Krishan Ramesh

 

 

 



Learning

 4 Replies

Tajobsindia (Senior Partner )     20 June 2011

1. Not required. The Advocate can send soft copy of Vakalatanama to your uncle and he shall take printout and sign at prescribed places and courier it to him. Vakalatnama are filed by Advocates before concerned Court and not by GPA and or by parties !

Ashok Yadav (Lawyer)     20 June 2011

Yes, presence of parties or/ GPA holder of any of the parties is not necessary on all dates fixed for hearing in civil suit. Your advocate can file Vakalatnama, folloow the procedure as advised by Mr. Tajobsindia.

Akhilesh Srivastava (Consultant)     07 August 2011

I have a similar question relating to GPA in India. I am an NRI living in USA...currently going thru divorce under section 13B. First motion was held successfully in July 2010 with my GPA. Now my questions is -  Do I have to be physically present for the second and findal motion despite of having a GPA in India. I don't want to travel to India. What are my options.

THANKACHAN V P (Advocate & Notary)     07 August 2011

 

1.If you were physically present for filing the Joint Petition , you need not appear before court for giving evidence. Cheif affidavit can be filed by before the court. The below mentioned Citation of Kerala HC may help you.

2. But if you represented through GPA at the time of filing the 13B  , I am not fully sure whether court will accept your cheif affidavit. Anyway please send your cheif affidavit attested from the embassy to your Advocate along with this citation.(Some times, being a ruling of another state, the court need not appreciate it).  

 

2010 (3) KLT  804

Hon'ble Mr. Justice R. Basant & Hon'ble Mrs. Justice M.C. Hari Rani

Saji T. Varghese v. State of Kerala

W.P. (C) No.27092 of 2009

Decided on 22nd February, 2010

Divorce Act 1869, S. 10A - Hindu Marriage Act 1955, S. 13B - Special Marriage Act 1954, S. 28 -- Personal presence of applicants/spouses in the application for dissolution of marriage by mutual consent need not unnecessarily and ordinarily be insisted -- Chief affidavits can be filed to state their case on oath instead of tendering evidence personally.

 

Summary

Questions raised are: 

 (i)  Whether ritualistic insistence on personal presence of parties need be made by a Court in an application for divorce by mutual consent ?

 (ii)  Whether the waiting period of six months stipulated under S.10A of the Divorce Act can be waived ?

Findings and Observations:

 (i) Waiting period after filing joint petition for divoce under S.10A of Indian Divorce Act, S.13B of Hindu Marriage Act and S.28 of the Special Marriage Act cannot be waived in view of the decision reported in 2010 (2) KLT 459.

 (ii) After the period of waiting a second motion need only be made and personal presence of the spouses need not be insisted.

 (iii) Such second motion can be made by the appearing counsel.

(iv) Parties can state their case through Chief Affidavit.

(v)  Insistence on personal presence of parties, or conselling/conciliation need not be made in a joint petition or divorce on the ground of mutual consent if the court is satisfied about its genuinity.

Held: Personal presence of such applicants/spouses in the application for dissolution of marriage by mutual consent need not be unnecessarily insisted by the Court. It is submitted that the parties find it difficult to personally appear after the period of waiting. After the period of waiting, a second motion need only be made and personal presence of the spouses need not be insisted. The learned counsel can make such second motion on their behalf. Their presence need not also be insisted to tender evidence. Ordinarily chief affidavits can be filed by them to state their case on oath. Hence the personal presence of the parties need not ordinarily be insisted. (para. 6)

 

Divorce Ac 1869, S. 10A - Hindu Marriage Act 1955, S. 13B - Special Marriage Act 1954, S. 28 -- If the Court is satisfied about the genuineness of the joint application for divorce on mutual consent, personal presence of the parties for conciliation/counselling need not be insisted. 

In the instant case, conciliation has already taken place, it is submitted. Even otherwise, ritualistic insistence on personal presence of the parties for conciliation/counselling need not be made by a Court in a joint application for divorce on the ground of mutual consent, if the Court is otherwise satisfied about the genuineness of the application. (para. 6)

 

N. Asok Kumar, Roy Philip, R. Sunil Kumar, M.R. Rajesh, 

S. Subhash Chand, Shoby K. Francis & Sandhya Raju For Petitioners

 

G. Shrikumar As Amicus Curiae 

JUDGMENT

R. Basant, J.

Can the waiting period after filing the joint petition for divorce under S.13B of the Hindu Marriage Act, S.10A of the Indian Divorce Act and S.28 of the Special Marriage Act be waived by the Court suo motu or on the application of both parties?

2. This question arose for consideration in various petitions and we posted all such cases together for hearing. Sri.G.Shrikumar, Advocate, has rendered assistance as amicus curiae for the Court. We have had the advantage of hearing Advocates M/s S. Subash Chand. Sandhya Raju, M.R. Rajesh, R. Sunilkumar, Shoby K. Francis and others on the question.

3. We have answered that question in Mat. Appeal No. 633/08 today [Ed.Note : Please refer 2010 (2) KLT 459]. The finding on that question is extracted below:

“We may, in these circumstances summarise the law and state that not only conditions A, B, C and D below; but condition E below also are mandatory requirements that must all co-exist before the Court's power under S.13B of the Hindu Marriage Act, S.10A of the Divorce Act and S.28 of the Special Marriage Act to pass the decree for dissolution on the basis of a joint application for divorce on mutual consent is invoked:

A. Solemnisation of marriage.

B. The mutual agreement of the spouses that the marriage should be dissolved.

C. That the spouses have been living separately for the specified period of one year/two years prior to the presentation of the application.

D. They have not been able to live together during this period; and

E. Minimum period of six months and maximum period of 18 months has elapsed from the date on which the application for divorce under S.13B of the Hindu Marriage Act and S.10A of the Divorce Act is filed and the spouses have made the second motion for dissolution thereafter.”

4. Having so understood the law, we look at the facts in this case. The parties are Christians. They both employed abroad. Their marriage was solemnized on 18.9.04. They started separate residence with effect from 7.6.09. In December, 2009 they applied for dissolution of marriage by mutual consent under S.10Aof the Divorce Act. That application stands dismissed by the impugned order - Ext. P3. The petitioners pray that the impugned order may be set aside and the period of waiting may be dispensed with.

 

5. In the light of the law that we have already ascertained, which we have extracted above, the prayer to dispense with the period of six months under S.10A of the Divorce Act is found to be without any merit. This petition is accordingly dismissed.

 

6. We may hasten to observe that the personal presence of such applicants/spouses in the application for dissolution of marriage by mutual consent need not be unnecessarily insisted by the Court. It is submitted that the parties find it difficult to personally appear after the period of waiting. After the period of waiting, a second motion need only be made and personal presence of the spouses need not be insisted. The learned counsel can make such second motion on their behalf. Their presence need not also be insisted to tender evidence. Ordinarily chief affidavits can be filed by them to state their case on oath. Hence the personal presence of the parties need not ordinarily be insisted. In the instant case, conciliation has already taken place, it is submitted. Even otherwise, ritualistic insistence on personal presence of the parties for conciliation/counselling need not be made by a Court in a joint application for divorce on the ground of mutual consent, if the Court is otherwise satisfied about the genuineness of the application.

 

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