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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

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Tuesday, June 30, 2015

Whether an interlocutory application is maintainable for permission of GPA to represent and depose on behalf of one of the party before the family court and any advocate of the choice of party to make available the skype facility for the court to interact with the party as he is in abroad - their lordships hled that Family Court to entertain the I.A. as it is maintainable and permit the GPA of the 2nd petitioner in O.P. to represent and depose on behalf of the 2nd petitioner in the O.P. and the Family Court shall also direct such GPA or any legal practitioner chosen by him to make available the skype facility for the Court to interact with the 2nd petitioner, who is staying at Melbourne, Australia and record the consent of 2nd petitioner and proceed with the matter thereafter as expeditiously as is possible.-2015 Telangana & A. P.msklawreports



The petitioner herein is the husband and the respondent is his
wife.  Both of them have filed the aforesaid O.P.No.1547 of 2014
under Section 13-B of Hindu Marriage Act, 1955, for dissolution of
their marriage performed on 22.08.2010 by a decree of divorce by
mutual consent. 

The 1st petitioner in the O.P., who is the respondent herein, has
been attending to the proceedings by appearing before the Family
Court. 
However, the father of the 2nd petitioner, who holds the
General Power of Attorney (GPA) of the 2nd petitioner/husband in the
O.P., filed an interlocutory application bearing SR.No.2216 of 2015
on 09.04.2015 before the Family court to receive the chief affidavit of
PW.2/petitioner No.2, duly dispensing with the personal appearance
of the 2nd petitioner before the Family Court.  
The 2nd petitioner has sworn to a detailed affidavit and got it notarized by
a notary public of South Melbourne, Australia.  
That interlocutory
application has been returned with a cryptic order dated 09.04.2015,
which reads as under:
      Petition is returned as not maintainable.
      It is against this order the present revision is filed.
whether a GPA holder can represent a party in Family Court O.P. and
also depose on behalf of his principal.
 in K. BHARATHY, GUDIVADA AND     
ANOTHER v. AUTHORITY UNDER SECTION 50 OF A.P.S.E.          
ACT- CUM-LABOUR OFFICER, MACHILIPATNAM AND            
ANOTHER (1999 (3) ALD 420) and contended that no person    
holding a Power of Attorney can examine himself as a witness
and hence, the evidence brought on record through the
Special Power of Attorney holder, viz., PW-1 should be
eschewed and since the petitioner has not examined herself,
the above petition should be dismissed.
       Hence, the question as to 
whether a Power of Attorney
holder can be examined as a witness requires a deeper
consideration.

 Therefore, the contention
canvassed by the learned counsel for the Respondent placing
reliance upon a judgment in K. BHARATHY, GUDIVADA AND      
ANOTHER case cited (1 supra), is not tenable.  It is altogether
a different thing that a Power of Attorney holder is not liable to
be granted permission to plead in a Court, which is an
exercise, regulated by Section 32 of the Advocates Act, while
the act of deposing as a witness on behalf of the Principal, is
not such a regulated exercise. Therefore, the correct way to
understand the judgment in K. BHARATHY, GUDIVADA AND       
ANOTHER case cited (1 supra) is that the power of attorney
holder is not entitled to plead on behalf of the Principal, but
he can only lead evidence or settle the pleading in the form of
a plaint or written statement or petition.

      In view of the above clear cut pronouncement, it is evident that
a GPA holder can depose and also lead evidence on behalf of his
principal.

whether the Family Court can entertain an
application presented by a legal practitioner in view of the provision
contained in Section 13 of the Family Courts Act, 1984.
 Keeping the very object behind the Family Courts Act, 1984,
read with the spirit behind Section 13-B of the Hindu Marriage Act,
the Family Court could have entertained the interlocutory application
in as much as legal practitioners are not totally forbidden from
rendering assistance to the Family Court. 
  Increasingly Family Courts have been noticing that one of the
parties is stationed abroad.  It may not be always possible for such
parties to undertake trip to India, for variety of good reasons.  On the
intended day of examination of a particular party, the proceedings
may not go on, or even get completed possibly, sometimes due to pre-
occupation with any other more pressing work in the Court.  But,
however, technology, particularly, in the Information sector has
improved by leaps and bounds.  Courts in India are also making
efforts to put to use the technologies available.  Skype is one such
facility, which is easily available.  Therefore, the Family Courts are
justified in seeking the assistance of any practicing lawyer to provide
the necessary skype facility in any particular case.  For that purpose,
the parties can be permitted to be represented by a legal practitioner,
who can bring a mobile device.  By using the skype technology,
parties who are staying abroad can not only be identified by the
Family Court, but also enquired about the free will and consent of
such party.  This will enable the litigation costs to be reduced greatly
and will also save precious time of the Court.  Further, the other
party available in the Court can also help the Court in not only
identifying the other party, but would be able to ascertain the
required information.  Accordingly, I direct the Family Court to
entertain the I.A. as it is maintainable and permit the GPA of the 2nd
petitioner in O.P. to represent and depose on behalf of the 2nd
petitioner in the O.P. and the Family Court shall also direct such GPA
or any legal practitioner chosen by him to make available the skype
facility for the Court to interact with the 2nd petitioner, who is staying
at Melbourne, Australia and record the consent of 2nd petitioner and
proceed with the matter thereafter as expeditiously as is possible.
      Accordingly, the civil revision petition is allowed.  No order as
to costs.
        Consequently, the miscellaneous petitions, if any pending shall
also stand closed.

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