Hon’ble of Andhra Pradesh High Court has allowed permission for a GPA of a petitioner, to represent the petitioner and depose on his behalf in the court of law.
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.
Learned Family Court Judge also appears to have entertained an apprehension as to 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.
From the very preamble of the Family Courts Act, 1984, one would gather that every endeavour is required to be made by the Family Court to assist the parties in arriving at a speedy settlement of disputes relating to the marriage and/or family affairs. That explains the reason Section 9 of the said Act provided for an appropriate legal environment for settlement of the disputes in an amicable manner. The parties are not only required to be assisted, but also required to be persuaded by the Judge in arriving at a settlement while keeping in view the importance of protecting and preserving the institution of the marriage between the parties. To the extent possible, the Family Court is required to utilize its skills and wisdom gained over long period of time by careful study of the ills of the society and then finding suitable cure for them and hence, the Family court must try to bring about a reconciliation of the disagreements persisting between the parties. However, when two parties to a marriage come before a Family Court and ask for dissolution of their marriage by mutual consent under Section 13-B of Hindu Marriage Act, 1955, the Court is required to adjourn the motion moved by both parties by a period not earlier than six months, as per sub Section 2 of Section 13-B of the Hindu Marriage Act. Further, Sub Section 2 requires that the Court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit with regard to the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of such decree. Therefore, there may have been a genuine apprehension in the mind of the Family Court Judge as to whether there is any possibility of reconciliation between the parties or change of mind with regard to consent expressed earlier for such dissolution, when the petition is returned by it.
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. One of the reasons why Section 13 of the Family Courts Act, 1984, declared that no party to a suit or proceeding shall be entitled as of right to be represented by a legal practitioner sans technicalities or legal necessities, the parties must be helped by the Court to reconcile the disputes persisting between them. Unlike a traditional setup of the Court, where the Presiding Judge has to maintain not only an equiy distance between the parties to a lis, but also maintain a sense of impartiality towards the cause of both sides and essentially was required to maintain an arms length distance from the parties, in a Family Court, the Judge is donning the robes of a facilitator, a mentor and an expert counselor. A slight tilt in the approach to one of the parties in a Family Court, depending upon the facts and circumstances prevailing in the case and if the ends of justice would be better served by dosing so, is allowable. The emphasis being laid upon essentially preserving the institution and interest of the marriage and the welfare and well-being of the parties etc. Hence, the Family Court is entitled to receive, examine and act upon an affidavit filed by one of the parties before it, acting through a GPA. A petition moved in that regard is maintainable.
Finally,
I am, therefore, of the opinion that the Family Courts are entitled to ascertain the views of the parties and for that purpose adjourning a case by a reasonable period is not to be frowned upon. But, however, if one of the parties, like in the present case, appears before the Family court and expresses no objection for an affidavit of the other party to be taken on record and is not desirous of cross examining the deponent of the affidavit, the Family Court cam entertain, unhesitatingly any such move/application.
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 preoccupation 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.
Citations : [2015 ALD 4 757], [2015 ALT 5 150], [2015 AIR AP 191]
Other Sources :
https://indiankanoon.org/doc/123683887/
https://www.casemine.com/judgement/in/5608f8e1e4b01497111439d9
