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July 2010

Power of attorney : Evidence through power of attorney cannot be given : Power of Attorney Act, 1882 S. 2.

By Dr. K. Shivaram
Ajay R. Singh
Advocates
Reading Time 1 mins

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[Rajiv Dinesh Gadkari v. Smt. Nilangi Rajiv Gadkari,
AIR 2010 (NOC) 538 (Bom.), 2010 (1) AIR Bom R. 45]

The husband had asked for exemption from attending the Court
as he was residing in foreign country. As per provisions of S. 13 of the Family
Courts Act, 1984 no party to a suit or proceeding before a Family Court shall be
entitled, as of right, to be represented by a legal practitioner, though
normally the Court may give permission in the interest of justice for taking
assistance of legal expert. He cannot be permitted to give his evidence through
his power of attorney. It was held that in matrimonial matter, presence of
spouses before the Court was vital as there were certain aspects which are only
within the personal knowledge of the spouse. In fact, it was the duty of the
Family Court u/s.9 of the Act to make efforts for settlement. The power of
attorney holder cannot give evidence regarding the facts which were only within
the personal knowledge of either of the husband or wife.

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