Wife Cannot File Writ Petition On Behalf Of Husband Without Valid Power Of Attorney: Kerala High Court
K. Salma Jennath
29 Sept 2025 6:07 PM IST
The Kerala High Court recently dismissed a writ petition instituted by a wife on behalf of her husband whose property was being managed by her. It found that the wife has no locus standi to prosecute the petition since she was not an owner or valid power of attorney holder even though the husband was abroad.
The case before Justice C.S. Dias was a writ petition challenging the order of the sub-collector rejecting an application to rectify the classification of land belonging to the petitioner's husband and other co-owners.
The property was erroneously classified as 'wet land' instead of 'dry land' in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008. Another writ petition was filed by the petitioner's husband when there was an inordinate delay in considering his application for rectification. WP(C) No. 24574/2024 was disposed of with a direction to consider the application within one month. Upon rejection of application, the writ petition was filed by the petitioner, i.e., property owner's wife.
The petitioner's counsel took a contention that the petitioner was a co-owner of the property being the owner's wife and can represent the husband's estate without power of attorney by virtue of Section 120 of the Evidence Act and Order III Rule 1 of the Code of Civil Procedure.
However, referring to Section 120 of the Evidence Act, the Court opined that the provision does not give any right to a non-party spouse to institute proceedings in substitution of the party spouse.
It observed that there is no provision under the Rules of the High Court of Kerala, 1971 that gives such a right either. It held:
"There is no provision under the Rules enabling a non-party spouse to file a writ petition on behalf of a party spouse, without a duly executed power of attorney, in the status of an agent."
It also found that Order III CPC only permits an agent to do or make an act, appearance or application in Court which is required to be done by the party. Looking next at the Powers of Attorney Act, it further observed that though there is no prohibition on power of attorney donees to institute a writ petition on behalf of the doners, the proceedings are not instituted in the donee's own name.
Thus, the Court found that the petitioner cannot institute and prosecute the writ petition on behalf of her husband merely because she is managing the property on her husband's absence. It dismissed the petitioner while reserving the right to institute a fresh petition either by the property owner himself or by the petitioner once she becomes a power of attorney holder.
Case No: WP(C) No. 2862 of 2025
Case Title: Shareefa v. The Sub Collector, Tirur and Ors.
Citation: 2025 LiveLaw (Ker) 611
Counsel for the petitioner: C.M. Mohammed Iquabal, P. Abdul Nishad, Istinaf Abdulla, Thasneem A.P., Dhilna Dileep, Surya S.R., Arshid M.S.
Counsel for the respondents: Deepa V. - Government Pleader, Vishnu S. Chemapazhanthiyil - Standing Counsel