Civil Procedure Code (CPC)

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nzcase2283 (IT Professional)     06 January 2012

Mutual divorce

Hi Team, My Wife has agreed to divorce under mutual consent. i am based abroad and she is living with her family in punjab. my query is do i have to visit india to file mutual case or is this can be done over power of attorney given to my guardian.

Please clarify as getting different opinions on this. (Case will be lodged in Punjab) 

Thanks in advance. 



 14 Replies

Dineshrai Dwivedi (Lawyer)     06 January 2012

You must visit india. Consent divorce petition cannot be entertaind in the absence of any spouse.

1 Like

nzcase2283 (IT Professional)     06 January 2012

Thanks Mr dineshrai and Amit. Appreciated

**Victim** (job)     07 January 2012

Dude if u visit india u will be screwed for real. As advised try other options and since u r going for MCD u can always ask ur inlaws to have proceedings where video conferencing is allowed. I am sure ur lawyer could be very handy in this issue.

nzcase2283 (IT Professional)     07 January 2012

Dude i have consulted lawyers in punjab and all are saying i have to be present there to file the case. Honestly i am so confused evryone has different opinions here

prabhakar rao j (xxxxxxxxxxxx)     07 January 2012

Your presence is not required. you can give power of attorney to your father or any related person duly notarised, the same is allowed by seeking permission from the trial court by filing petition u/s.32 - 33 of CPC.  There are several citations of supreme court where it was held that both spouses need not present for mutual consent divorce.

Dineshrai Dwivedi (Lawyer)     07 January 2012

Dear Mr. prabhakar rao j

Sec. 32 of CPC is about penalty for default and Sec. 33 is about pronouncement of Judgment. Order 32 is about suits by or against minors and persons of unsound mind. Order 32A is about family matters and does not consist any rule about presence or non presence of a party before the court. Order 33 is about suits by indigent persons. In my knowledge there is no provision about presence of a party in divorce matter through an power of attorney holder. There is need of a statement before the court in consent divorce matter. The presence of the parties for consent divorce before the court. 

prabhakar rao j (xxxxxxxxxxxx)     07 January 2012

Sorry Mr.Dineshraiji actually there was a typing mistake, we have to file petitiion under rule 32 and 33 of civil rules of practice before the court seeking permission to allow special power of attorney holder to represent the matter on behalf of the party. Even the division bench of AP High Court laid its rule that presence of parties is not necessary for mutual divorce, power of attorney holder can represent the matter.  Several cases were disposed off by filing the petitions u/r 32 and 33 CRP. While filing SPA petition it should accompany the notarized power of attorney.

Whereas in consent divorce both parties presence is mandatory, otherwise exparte orders will be passed.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     18 January 2012

In Punjab the divorce can happen on PoA.

 

There is a judgement from Punjab and Haryana HC w.r.t. the same.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

1 Like

**Victim** (job)     19 January 2012

@ Author as you can see shonee has highlighted some ray of hope for you. I don't see any problem in your case just contact shonee he will help you for sure.

nzcase2283 (IT Professional)     19 January 2012

Thanks Mr Shonee, i really appreciate for everyone's input. Have spoken to the lawyer in our city and they have told me have to visit india to give my statement as they are not accepting this can be done over POA.

so have to visit india to end this mess. 

**Victim** (job)     19 January 2012

You know whoever is your lawyer he/she is limited to his/her knowledge. What is the guarantee of u coming back safely without any cases ? When it comes to your safety nothing wrong in getting paranoid. Anyway ask lawyer if you can he/she can do this,

Ask your wife to file MCD and sent over the papers to indian embassy abroad. Based on my personal experience when you appear in indian embassy personally you are going to speak with consular general in person just discuss that your safety is not promised in india and you are willing to cooperate completely in MCD proceedings with your wife and you will request consular general to acknowledge your divorce without visiting india. It will involve a bit of paperwork for your lawyer but that's what you are paying for ? I believe i have provided you sufficient advice on this matter now it will be your call. Wish you all the best and make a wise decision......

dipender kumar (advocate)     19 January 2012

"Neelima Chopra Vs. Anil Chopra" 1986 (II)DRJ 188-"If both the parties, by way of affidavits or through counsel, state that they are married and give proof of other elevant mateerial, the court should record its satisfaction u/s. 13-B(2)of Hindu Marriage Act, 1956, despite the fact that the paties had not appeared in person and pass a decree for divorce.

In Calcutta High Court, Division Bench has taken similar view in "Annalia Prasahd Vs. Romesh Prasad" AIR 1968 Cal. 48. 

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     19 January 2012

There are multiple judgements by various HC in this regard including P&H HC.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com


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