Your question is perhaps answered by the decision of the Punjab-Haryana High Court in the case of Jasjit Saini vs Sanjeev Pal Singh Saini (FAO No.M-351 of 2013), decided on 9 December, 2013, wherein it has been held that the position is that where a state of mind or conduct of the person is to be ascertained in a proceeding for grant of divorce, normally the parties should appear in person and their evidence alone is to be considered and not that of a person holding an attorney. However, the exception to the rule is that where a close relative appears for the parties as his or her attorney and is in a position to state and depose as regards the state of mind of the principal and the affairs of the principal are managed by the attorney, then such statements of an attorney on behalf of the principal can be accepted and matrimonial relief granted. The exception is all the more applicable where one of the parties or both are unable to appear for justifiable reasons like living abroad and their affairs are managed by a close relative who is acting as an attorney. In such a case the state of mind of the parties can be gathered from the statements made by the attorneys. It would depend on the facts and circumstances of each case.
The above decision has been relied upon in another decision of the Punjab-Haryana High Court in the case of Rajwant Singh Bains vs Unknown (F.A.O. No. M-121 of 2014), decided on 21 March, 2014.
Therefore, generally speaking, it should be possible for you to give power of attorney to your brother, if you are out of country. However, as held in the above case by the high court, it would depend on the facts and circumstances of each case. So, while generally speaking, power of attorney in a mutual consent divorce may be accepted, if the court is not satisfied about the genuineness of the consent etc., in the facts and circumstances of the case, the court may require the presence of the party to be present in court in person. This may happen in a specific case. But, you can cite the above case in the court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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