S. Vaidyanathan, J.@mdashThis Civil Miscellaneous Appeal arises out of the judgment and decree, in H.M.O.P. No. 977 of 2011, dated
07.02.2013 passed by the Family Court, Coimbatore, whereby the petition in I.A. No. 1151 of 2012 filed by the respondent/husband to reject
the main HMOP 977 of 2011 filed on behalf of the appellant/wife by her Power of Attorney, one Kumarasamy for grant of divorce under Section
13(i-a)(i-b) of the Hindu Marriage Act, i.e. on the ground of cruelty and desertion, came to be allowed. The facts, in brief, giving rise to this appeal
are as follows:
1.1. The appellant herein, has moved a petition in HMOP No. 977 of 2011 against her husband/respondent through her Power of Attorney,
Kumarasamy for grant of divorce under Section 13(i-a)(i-b) of the Hindu Marriage Act, 1955, i.e. on the ground of cruelty and desertion.
1.2. The so-called Power of Attorney of the appellant is none other than her maternal grand father. It is stated in the petition filed by the Power of
Attorney that the appellant is an employee of NUT as a Software Engineer and since she is working in abroad on deputation, she is not in a
position to attend the Court in person. According to him, he is fully aware of the personal affairs of the respondent right from her birth including
matrimonial life and as such, he filed the above said petition against the respondent for grant of divorce. He enunciated the facts and circumstances
and the acts of the respondent which, according to him, amounts to cruelty and hence, he sought for divorce.
2. Aggrieved by the said petition filed by the Power of Attorney of the appellant/wife for grant of divorce, the respondent/husband has moved a
petition in I.A. No. 1151 of 2012 before the Court below, praying to reject the main HMOP for the following reasons.
2.1. As the Power of Attorney has stated in his petition that he got direct knowledge about the incidents took place between the couple when they
were living together and having intimacy within the four walls, no woman can share the happenings that took place between her and her husband
within four walls, to a male person and the Power of Attorney is not empowered to make allegations against a person in a matrimonial case, when
such allegations were not mentioned in the deed of power of attorney and no specific power for the purpose of making allegations had been
executed by the appellant/wife. No allegations were made by the parents of the appellant/wife against the respondent. Therefore, the Power of
Attorney exceeded his limits in making allegations against the respondent. The Power of Attorney does not have any role and he is prohibited from
filing the case on behalf of the author of the power of attorney, i.e. appellant/wife and the issue is between the couple and the couple alone should
prosecute it. With these averments, the respondent/husband prayed for rejection of the main HMOP as not maintainable.
3. This petition was resisted by the appellant through her Power of Attorney, by filing a counter affidavit, inter alia, it is stated that no provision of
law for rejection of HMOP has been mentioned by the respondent. It is settled law that the Power of Attorney has right to file the petition for
divorce as against the de facto victim, namely, the appellant/wife and as such, the petition filed for divorce is maintainable. He relied upon a
decision reported in 2011 (1) MWN (Civil) 241, wherein, it is held that there is no legal impediment under the Family Courts Act for a Power of
Attorney to appear on behalf of the principal and any person not being a legal practitioner, can be nominated as an agent under Order 3 Rule 1
CPC to prosecute or to defend the parties until the Family Court passes any order directing the appearance of the parties. It is also stated that the
appellant/wife appeared before the Court below on several hearings including counselling even though she was working in abroad. The Power of
Attorney is the maternal grant father of the principal petitioner and he is fully appraised of the entire facts narrated in the petition besides his
personal knowledge of the said facts. As such, the petition for divorce is maintainable. Hence, he sought for dismissal of the petition.
4. On consideration of the entire pleadings, the family Court has framed an issue, whether the Power of Attorney can represent the party to the
matrimonial proceedings in the family Court?
5. Having analyzed the facts and circumstances and having followed the relevant rulings of the Hon''ble Supreme Court and this Court, the family
Court allowed the petition filed by the respondent/husband, holding that for better and proper adjudication, the husband and wife alone are the
necessary persons to prosecute each other and therefore, the Power of Attorney cannot prosecute directly as against the person against whom,
allegations were made by his wife. As the said petition came to be allowed, virtually the main HMOP came to be rejected. Aggrieved by the same,
the appellant/wife though her Power of Attorney, came forward with the present appeal.
6. The issue arises for consideration in this appeal is, whether the family Court is right in allowing the petition for rejection of the divorce petition in
HMOP 977 of 2011 filed by the Power of Attorney of the appellant/wife, for grant of divorce on the ground of cruelty and desertion and whether
the Power of Attorney can represent the principal petitioner in the matrimonial matters?
7. Heard the learned counsel appearing for both sides and perused the entire materials available on record.
8. The learned counsel appearing for the appellant would contend that the Family Court, without appreciating the facts and circumstances which
prompted the wife to nominate the Power of Attorney to appear and defend on her behalf and without considering the law and relevant decisions
of the Hon''ble Supreme Court and this Court, has erroneously rejected the HMOP filed for divorce as not maintainable, stating that the Power of
Attorney cannot prosecute directly as against the person (husband) against whom, allegations were made by his wife and hence, the order of the
Family Court is liable to be set aside.
9. The learned counsel appearing for the respondent/husband would contend that absolutely, there is no infirmity in the order passed by the Court
below either factually or legally inasmuch as it is settled law that no Power of Attorney can appear on behalf of his principal as witness to bring the
facts before the Court which are expected to be within the personal knowledge of the principal and since the affairs which are more specific and
intimate between the husband and wife, the same could not be expected to be spoken by the Power of Attorney, who is the grand father of the
appellant/wife and his evidence, even if it comes to record, may not be useful. He also contended that there is no impediment for the wife to appear
before the Court for hearings and as rightly observed by the Court below that for better and proper adjudication, the husband and wife alone are
the necessary persons to prosecute each other and as such the presence of the parties themselves before the Court in the matrimonial cases should
be available for amicable settlement of the matter. Hence, the learned counsel sought for dismissal of the appeal.
10. As the facts were narrated supra, we wish to refer the relevant decisions on the field.
11. In Shambhu Dutt Shastri Vs. State of Rajasthan and Others, , the High Court of Rajasthan has categorically held as under in para. 16.
16. General power of attorney holder has power to act, plead and appear on behalf of the party. But it cannot be said that the power of attorney
holder is having power to appear in witness-box on behalf for the party. The plaintiff has not appeared in the witness-box and the statement given
by the general power of attorney holder cannot substituted for the statement of the plaintiff and for this reason also adverse inference can also be
drawn against the plaintiff for not appearing in the witness-box to prove her case. For the reasons stated above, I am of the view that in the instant
case, prima facie defence which is reasonable exists and the provisions of Article 363 of the Constitution of India can be invoked by the defendant
and the suit is not maintainable on this ground also.
12. In Ram Prasad Vs. Hari Narain and Others, , the above said judgment was quoted with the approval and it was held that the word ""acts"" used
in Rule 2 of Order III of the CPC does not include the act of Power of Attorney holder to appear as a witness on behalf of a party. Power of
Attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on
oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a
Commissioner for recording his evidence may be issued under the relevant provisions of the CPC.
13. In Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, , while upholding the above said two decisions, the Hon''ble
Supreme Court has reiterated that a Power of Attorney can give evidence only respect of acts done by him in exercise of powers granted by the
instrument, but he cannot depose for the principal in respect of the matter on which the principal alone can have personal knowledge. It was also
held therein that the Power of Attorney cannot depose for the principal in respect of the matter, which only the principal can have a personal
knowledge and in respect of which the principal is entitled to be cross-examined.
14. In fact, Order III Rules 1 and 2 CPC empowers the holder of the Power of Attorney to ""act"" on behalf of the principal. In the said decision,
i.e. ""Janaki Vashdeo"" (cited supra), while construing the said provision of the Code of Civil Procedure, authorising an agent to represent a party,
the Hon''ble Supreme Court has observed that empowerment of the agent to do ""an act"" would not include deposing in place and instead of the
principal. In that view of the matter, the term ""act"" was construed by the Supreme Court as under in para. 12 and 13.
12. In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property. It
was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any
independent source of income and have contributed towards the purchase of the property from their own independent income can be only
answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the
personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross examined
on those facts which are to the personal knowledge of the principal.
13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to ""act"" on behalf of the principal. In our view the word ""acts
employed in Order III, Rules 1 and 2, CPC, confines only in respect of ""act"" done by the power of attorney holder in exercise of power granted
by the instrument. The term ""acts"" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder
has rendered some ""acts"" in pursuance to power of attorney, he may depose for the principal in respect of such acts but he cannot depose for the
principal for him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and
in respect of which the principal is entitled to be cross-examined.
(Emphasis applied)
15. In Rekharani Vs. Prabhu, , wherein, a petition was presented by a Power of Attorney Holder under Section 13-B of the Hindu Marriage Act,
1955 for dissolution of marriage by a decree of divorce by mutual consent. While dealing with the issue that whether a Power of Attorney is
entitled to present such a petition, the High Court of Kerala, has held as under in para. 6:
6. .... Under Section 13B of the Act, a petition for dissolution of marriage by a decree of divorce by mutual consent is to be presented by the
parties to the marriage and not through the power of attorney holder. They should satisfy the court that as on the date of presentation of the case
that they had not been living together as husband and wife for more than one year, that they have not been able to live together and that they have
mutually agreed for the dissolution. If after presentation of the petition, during the lie over period the parties have met and lived as husband wife,
they are not entitled to the decree for dissolution. The court on motion after the lie over period has to satisfy that the parties had not been living
together as husband and wife, at least for one year prior to the presentation of the petition, they are not able to so live together even after the
presentation of the petition, and that they have not actually so lived during the lie over period either. The court should also satisfy that the mutuality
on consent persisted in both the parties during the lie over period. If one party has change of heart or second thought in the meanwhile, the court
has no jurisdiction to grant the decree for dissolution. The endeavor of the court should be as far as possible to sustain and nurture the institution of
marriage. The approach made by the Family Court in the instant case is patently erroneous and it is casual too. The inquiry by the Family Court
should be with the parties to the marriage, regarding the essential ingredient for a decree of divorce by mutual consent under Section 13B of the
Hindu Marriage Act.
Further, in the above case, having taken note of the evidence tendered by the Power of Attorney who deposed regarding the emotional
incompatibility of temperament between the wife and the husband and having followed the above said ruling of the Hon''ble Supreme Court, it was
held that in respect of the matters requiring personal knowledge of the principal, the evidence cannot be tendered through the Power of Attorney
holder.
16. In Mrs. Sakunthala Vs. Anandarajan, , this Court, while following the above said ruling of the Hon''ble Supreme Court, it has been held as
under in para. 14:
10. Therefore, as per the judgment of the Supreme Court and also the construction of the provision of Order III Rule 1 and 2 of CPC, it is very
clear that the power agent of the plaintiff, though he being her brother, cannot be expected to speak about the oral agreement stated to have been
entered between the plaintiff and the defendants on 20.04.1994. Further, the person who has been appointed as power agent in the year 2003
cannot be expected to know the normal course of business which is stated to have happened in the year 1994.
17. In Muthuraman Vs. Anuradha , this Court has rejected the relief sought for by the petitioner therein, to direct the Court below to take the case
filed by him through the Power of Attorney on file for the reasons mentioned in para. 4 as under:
4. In view of the facts and circumstances of the case, arguments advanced by the learned counsel for the petitioner, this court is of the considered
view that (1) the case is purely a family dispute arising due to differences in personal view between the husband and wife. (2) If both the concerned
parties appear before the court, there is a possibility for change in their views and it may lead to a positive change as well. (3) Family Court Act is
a Social Welfare Act. As such, both of them can express theirs views before the family mediation centre, which is an appropriate centre to effect a
compromise. (4) Further, the learned Judge''s view is that the petitioner''s presence is necessary, and this view of the learned Judge is based on his
discretion and cannot be faulted with.
18. In Terance Alex Vs. Mary Sowmya Rose, , while dealing with the similar issue, i.e. whether Power of Attorney can represent a party to the
matrimonial proceedings in Family Court?, having considered the various rulings on the field and having regard to the Section 13 of the Family
Courts Act which envisages that no party to a suit or proceeding before a Family Court shall be entitled as of right to be represented by a legal
practitioner, this Court has categorically held that recognised agent or Power of Attorney should not be a legal practitioner. Para. 18 is relevant
and it is extracted as under:
18. Thus, it is now well settled legal position that there is no legal impediment under the Family Courts Act, for a Power of Attorney to appear on
behalf of the Principal and the only legal embargo is that the recognised agent should not be a legal practitioner. Any person, not being a legal
practitioner, can be nominated as an agent under Order 3 Rule 2 CPC, to prosecute or defend the parties and until the Family Court passes any
specific order, directing appearance of the party, depending upon the facts and circumstances of the case.
(Emphasis added)
19. It is pertinent to note that Section 9 of the Family Courts Act provides that in every suit or proceedings, endeavor shall be made by the Family
Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and persuade the parties in
arriving at an amicable settlement in respect of the subject matter of the suit or proceedings and such endeavor of efforts shall be in accordance
with the Rules. In such situations, the personal appearance or presence of both parties becomes inevitable and necessary, at any rate from the
stage of hearing after the appearance of the other side to the proceedings, and the efforts contemplated to be made by the Family Court under the
statute cannot be effectively carried out through the persons other than the actual parties, i.e. authorized agent or power of attorney. Of-course, it
is true that the personal appearance at the initial stage is not required, however, it becomes absolutely necessary after the appearance of the
respondent to the proceedings in order to comply with mandatory provisions of the Act.
20. Absolutely, the role of the Power of Attorney to assist the principal, who will be not in a position to appear in person to prosecute the
proceedings before the Court, acquires significance for consideration. On analyzing the rulings on this issue, we gather and sum up the following
regarding the role of the Power of Attorney.
i) Power of Attorney can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear
in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a
different act. A general power of attorney holder cannot be allowed to appeal as a witness on behalf of the principal in the capacity of the principal;
ii) The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his
personal knowledge nor can he be cross examined on those facts which are exclusively to the personal knowledge of the principal.
iii) In the family matters, it is not possible for the spouse to engage a power and act on his/her behalf to give evidence before the family Court
which she/he alone has personal knowledge.
iv) There is no legal impediment under the Family Courts Act, for a Power of Attorney to appear on behalf of the Principal and the only legal
embargo is that the recognised agent should not be a legal practitioner. Any person, not being a legal practitioner, can be nominated as an agent
under Order 3 Rule 2 CPC, to prosecute or defend the parties and until the Family Court passes any specific order, directing appearance of the
party, depending upon the facts and circumstances of the case. The persons who are exempted from the term ''legal practitioner'' are the parents,
brothers and sisters. Even then for deposing the facts that are within the personal knowledge of the principal, they should refrain themselves, but
the principal should appear before the Court and depose.
v) Under Section 13-B of the Act, a petition for dissolution of marriage by a decree of divorce by mutual consent, shall be presented by the parties
to the marriage and not through the Power of Attorney since they should satisfy the Court that as on the date of presentation of the case, they had
not been living together as husband and wife for more than one year, that they have not been able to live together and that they have mutually
agreed for the dissolution.
vi) The endeavor of the Court should be as far as possible to sustain and nurture the institution of marriage. Section 9 of the Family Courts Act
specifically envisages that in every suit or proceedings, endeavor shall be made by the Family Court in the first instance, where it is possible to do
so consistent with nature and circumstances of the case to assist and persuade the parties in arriving at settlement in respect of the subject-matter
of the suit or proceedings and thus, the personal appearance or presence of the parties concerned becomes inevitable and necessary at any rate
from the stage of hearing after the appearance of the other side to the proceedings and the efforts contemplated to be made by the Family Court
under the statute cannot be effectively carried out through a recognised agent or Power of Attorney of the party and having regard to the sensitive
nature, personal feelings and behavioral attitudes to be assessed by the Court in carrying out the mandate contained in Section 9 of the Family
Courts Act. Personal appearance, though not initially required, becomes absolutely necessary after the appearance of the respondent to the
proceedings. Therefore, the parties should make personal appearance before the Court as and when so stipulated or directed or indicated by the
Family Court.
21. In view of the above discussion and observation made by us, we are of the view that that the appellant/wife shall be at liberty to prosecute the
proceedings filed under Section 13(i-a)(i-b) of the Hindu Marriage Act through her Power of Attorney and the Family Court at the same time is
empowered to insist upon the personal appearance of the parties as and when required. Accordingly, we set aside the order of the Family Court,
dated 07.02.2013 and permitting the appellant/wife to prosecute the proceedings filed under Section 13(i-a)(i-b) of the Hindu Marriage Act
through her Power of Attorney to the limited extent which specifically indicated in para. 21(i) to (vii) above and the Family Court is also directed to
follow the same.
With the above observation, this Civil Miscellaneous Appeal is disposed of. No costs.