An individual involved in a Family Court matter may authorise another person to act as their agent through a Power of Attorney (POA). This instrument empowers the designated agent, or ‘holder’, to represent the principal’s interests and perform specified acts. The legal framework governing this representation is robust, though subject to certain judicial safeguards and inherent limitations, particularly within the sensitive context of family law.
Statutory Framework for Representation
The admissibility of a Power of Attorney holder in Family Court is not explicitly prohibited by the Family Courts Act, 1984, or the rules framed thereunder by the High Court of Kerala or the Government of Kerala. Instead, their role is governed by the Code of Civil Procedure, 1908 (CPC), which regulates the proceedings of all courts of civil jurisdiction.
Several key provisions establish this foundation:
- Section 21 of the Hindu Marriage Act, 1955 (HMA) stipulates that all proceedings under the Act shall be regulated, as far as may be, by the CPC.
- Section 141 of the CPC extends the procedures applicable to suits to all proceedings in any court of civil jurisdiction. Consequently, Family Courts are bound to follow the CPC and possess the powers of a Civil Court.
- Order III, Rules 1 and 2 of the CPC expressly permit the appearance, application, or act in any court to be made or done by the party in person, by their recognised agent, or by a pleader. A Power of Attorney holder is recognised as such an agent who can make an application, receive processes, appear before the Court, and acts on behalf of the party not resident within the jurisdiction of the Court.
- Order VI, Rule 14 of the CPC, concerning the signing and verification of pleadings, further accommodates representation by an authorised agent.
- Rules 22 and 23 of the Kerala Civil Rules of Practice, 1971, provide additional procedural guidelines for such representation, such as filing of the power of attorney, getting permission from the Court in writing, and such other matters. But the Family Court Judge has the authority to insist on personal appearance of the party before serving summons. The judgment in Kunhi Purayil Mukundan Naveen v. Anjalika Dinesh [2011(3) KHC 80] states that it may be open to the party to present the petition either personally or even through a power of attorney holder, but when the matter is taken for preliminary examination the Family Court Judge has the power to insist upon personal appearance and to defer the issuance of summons to the opposite party.
The relationship between the principal (the donor of the power) and the agent (the donee) is fundamentally one of agency, as defined under Section 182 of the Indian Contract Act, 1872. The agent is authorised to act on behalf of the principal and consents to do so, binding the principal by their actions within the scope of the granted authority.
Scope of Authority and Permissible Functions
A duly authorised Power of Attorney holder may undertake a wide range of actions on behalf of the principal in a Family Court proceeding. These functions include:
- Filing Pleadings: Presenting petitions, including a divorce petition, which must be signed by the principal but can be verified by the agent.
- Court Appearances: Attending hearings, responding to summonses, and making representations before the court.
- Participating in Mediation and Negotiation: Participating in alternative dispute resolution processes, including mediation sessions and settlement negotiations.
- Management of assets and finances: Managing the principal’s assets and finances that are relevant to the case, provided such authority is specified in the POA document.
- Filing Appeals: Filing an appeal against an adverse judgment or order on behalf of the principal.
Inherent Limitations and Prohibitions
Despite the broad scope of authority, the role of a Power of Attorney holder is not absolute. Certain actions remain the exclusive preserve of the principal.
Testimony and Personal Knowledge
A Power of Attorney holder is a competent witness and may depose in court regarding facts that are within their personal knowledge. However, they cannot give evidence on behalf of the principal concerning matters of which only the principal could have personal knowledge. Such matters often form the crux of family disputes and require the principal to be available for cross-examination.
Consent and Compromise
The agent cannot unilaterally compromise or settle a case. Any final settlement or agreement requires the express consent and instruction of the principal. The court may require this consent to be affirmed directly by the principal, either in person or through video conferencing, to ensure it is genuine and voluntary.
Fiduciary Duty
The holder operates under a strict fiduciary duty to act in good faith, with loyalty, and solely in the best interests of the principal. Any action taken must be strictly within the boundaries of the authority conferred by the Power of Attorney instrument.
Special Considerations in Mutual Consent Divorce (Section 13B, HMA)
Proceedings for divorce by mutual consent under Section 13B of the HMA require the court to be satisfied that the consent of the parties is free and voluntary.
While a petition under this section may be presented through a Power of Attorney holder, the court retains ultimate discretion to insist on the personal appearance of the parties. To ascertain genuine consent, the court may conduct its enquiry directly with the parties. In cases where physical presence is impracticable, modern technology offers a viable alternative.
The Supreme Court of India has affirmed the use of video conferencing for recording evidence, in State of Maharashtra v. Dr. Praful B. Desai [(2003) 4 SCC 601].
In Santhini v. Vijaya Venketesh [AIR 2017 SC 5745], the Supreme Court has permitted use of video conferencing in Family Court proceedings, after the conciliation or settlement stage. When the attempted settlement fails, the court in its discretion may permit use of video conferencing, provided both parties have consented. Similarly, even without the parties’ consent, the Family Court has authority to determine use of video conferencing after the conciliation stage, if it would serve the interests of justice. However, the stage at which video conferencing is permissible must be determined by the rules framed by the High Court, but the Family Court has authority to opt for hearing via video conferring in accordance with the specific facts and the rules in force.
Therefore, a Family Court may interact with the parties via video conference to satisfy itself of their mutual consent. If, during such an interaction, the court deems a physical appearance necessary, it is empowered to direct the parties to appear in person.
Rule 6(2) of the Electronic Video Linkage Rules for Courts (Kerala), 2021. States, “In proceedings before the Family Court, Electronic Video Linkage shall be allowed only after completing the reconciliation process subject to the condition that both the parties file consent memorandum for Electronic Video Linkage. When either of the party is not able to attend the reconciliation process in person, the Family Court may for reasons to be recorded in writing, allow the reconciliation process to be done through Electronic Video Linkage.”
Conclusion
A Power of Attorney is a valuable legal instrument that facilitates representation in Family Court, particularly when a party is unable to be physically present. The holder can manage procedural and administrative aspects of a case, but cannot replace the principal in matters requiring personal testimony or the affirmation of consent. The judiciary retains the discretionary power to demand the personal appearance of the parties at any stage to ensure that the ends of justice are met.
It is therefore imperative that the Power of Attorney document be drafted with precision, clearly delineating the scope and limitations of the agent’s authority.
Additional reading
Electronic Video Linkage Rules for Courts (Kerala), 2021
