Mr. Vinay Jude Dias vs Ms. Renajeet Kaur on 19 September, 2008

       IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: September 05, 2008
Date of Order: September 19, 2008 CM(M) 1030/2008

   19.09.2008

   Mr. Vinay Jude Dias ...Petitioner Through: Mr. Sandeep Sethi with Mr. Anshu
Mahajan and

   Mr. Vikas Aggarwal, Advs.

   Versus

   Ms. Renajeet Kaur ...Respondent Through:

   JUSTICE SHIV NARAYAN DHINGRA

   1. Whether reporters of local papers may be allowed to see the judgment? Yes.

   2. To be referred to the reporter or not ? Yes.

   3. Whether judgment should be reported in Digest ? Yes. JUDGMENT:

   1. The petitioner is aggrieved by an order of learned ADJ dated 25th August,
2008 whereby in a Divorce Petition by mutual consent filed by the

   petitioners, the Court directed personal appearance of both the parties for

   purpose of its satisfaction regarding an inquiry under Section 10(A) of the

   Divorce Act.

   2. Notice of the petition was accepted by the respondent in the Court and
respondent supported the petition and wanted the petition to be

   allowed. Thus, the Court has only to examine whether the personal appearance
of

   the petitioner before the Court below was necessary in order to obtain
divorce

   with mutual consent under Section 10(A) of Divorce Act.

   3. In the present case, the special power of attorney in favour of one Mr.
Lal Babu Tiwari was executed by the petitioner (husband) to appear

   before the Court and testify about the contents of the petition. The
petitioner

   has signed the petition before Indian consulate High Commission of India in
UK

   under Section 3(2) of the Diplomatic and Consular Officers (Oaths and Fees)
Act,

   1947 under which the documents do not require any further evidence.

   4. The learned ADJ relying on Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd.
AIR 2005 SC 439 wherein Supreme Court had held that ?a general power

   of attorney holder can appear, plead and act on behalf of the party but he

   cannot become witness on behalf of party. He can only appear in his own
capacity. No one can delegate the power to appear in witness box on behalf of

   himself?, considered that the attorney cannot depose in the Court to satisfy
the

   inquiry as required under Section 10(A) of Divorce Act.

   5. There can be no dispute that the attorney of the petitioner can appear in
the Court on behalf of the party and do the act as specified in power

   of attorney. An attorney is not an incompetent witness. He can appear in the

   Court and depose in the Court as a witness in respect of facts which are in
his

   knowledge. He cannot depose in respect of the facts which are not in his

   knowledge and knowledge of which has been derived by him from principal
without

   witnessing the facts himself. However, if an attorney has witnessed all those

   facts himself which were also witnessed by the principal, an attorney cannot
be

   told that he cannot appear in the witness box and depose in the Court in
respect

   of the facts known to him. Facts which are within the special knowledge of

   principal and are not in the knowledge of attorney can only be deposed by the

   principal. Whether the parties were married on a particular day, is not a

   private act of the parties. Marriage is normally a public act in this country

   and evidence can be given by anyone who has knowledge of the fact. Whether
the

   parties are living separate or not is also known to other people associated
with

   the parties and is not something secret. Similarly, for how long parties were

   living separate can be deposed in the Court by any person who is aware of the

   facts. If an attorney aware of these facts and can answer the questions of
the

   Court, the attorney cannot be told that he is not a competent witness or his

   statement would not be recorded. Similarly an attorney, on the basis of
instructions/directions given to him, can answer the queries, if there was any

   possibility of parties patching up and living together or the marriage has

   broken down irretrievably. An attorney has to be allowed to appear in the

   witness box and make statement. The Court may reject that part of his
statement

   which is based on hearsay or which he has no personal knowledge. But he
cannot

   be prevented from appearing in the witness box and deposing and answering the

   queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo

   Bhojwani (supra) wherein Supreme Court had not debarred an attorney from

   appearing in the witness box but the Supreme Court has stated the facts which

   are only in the knowledge of the principal, about those facts attorney cannot

   testify in the Court.

   6. This Court in Neelima Chopra vs. Anil Chopra 1986 (11) DRJ 188 held that
if both the parties, by way of affidavits or through counsel, state

   that they are married, and are able to produce proof of the marriage and that

   they have been living separately and have not been able to live together for
the

   prescribed period, then there can be no reason as to why the Court should not

   record its satisfaction as envisaged under Section 13-B(2) of Hindu Marriage

   Act, despite the fact that parties had not appeared in person and pass a
decree

   for divorce.

   7. The Division Bench of Calcutta High Court in Annalie Prashad vs. Romesh
Prashad AIR 1968 Calcutta 48 had made following observations : ?3. In our
opinion, neither of the above two reasons can be sustained in law.

   The Special Marriage Act by Section 40 attracts the Code of Civil Procedure

   subject, of course, to the other provisions of the said statute and to such

   rules as the High Court may make in that behalf. The learned trial Judge does

   not say that there is anything in the statute or in the rules, which would

   conflict with the view that affidavit evidence would be permissible, unless
we

   agree with him that the Act, having prescribed that the parties should be
heard,

   would necessarily require their personal appearance or presence before the

   Court. We do not, however, think that that is the consequence of the words

   ``hearing the parties'` and, accordingly, the reason given by the learned
trial

   Judge in that behalf cannot be accepted We are also unable to agree that, in
a

   case of divorce by mutual consent, affidavit evidence should be excluded on
the

   ground that in such a case, it is desirable that the parties themselves
should

   be present in Court. In the premises, Order 19 of the Code of Civil Procedure

   would be attracted by the above special statute as part of the Code and would

   not be excluded either expressly or by necessary implication.?

   8. Where the parties are living far away from the jurisdiction of the Court
competent to dissolve the marriage, the parties after filing their

   affidavits can appoint attorneys to act on their behalf. Attorney is
competent

   to act on behalf of the principal on the basis of power of attorney executed
by

   the principal. The Courts have been allowing attorneys to file the petition,
to

   withdraw the petition, to carry on proceedings in the Court on behalf of
their

   principal in all other cases. The attorney can also act in matrimonial cases
as

   per instructions of their principle. The Court can take necessary precautions

   to prevent frauds being perpetuated on it but unless the Court smells some
kind

   of fraud being played with it, the Court should normally recognize the act of

   the attorneys.

   9. I therefore allow this petition. The order of the Trial Court insisting on
the personal appearance of the parties is set aside. The attorneys

   are permitted to make statement before the Court below. September 19, 2008
SHIV NARAYAN DHINGRA J. ak