In a significant judgment, the Bombay High Court has held that a petition for divorce through mutual consent can be filed through a registered power of attorney and directed the Family Court, Bandra, to allow recording of consent terms via Skype or any other technology.
Justice Bharati Dangre gave the above directions while hearing a writ petition filed by Harshada Deshmukh who sought an order of the family court dismissing her petition for divorce, to be quashed and said aside.
Harshada and her husband Bharat filed a petition before the family court for dissolution of marriage through mutual consent under Section 13 B of the Hindu Marriage Act. Although Bharat had signed the said petition, Harshada’s father, who is also her registered power of attorney holder, had signed the petition on her behalf.
The family court held that both parties must remain present for filing such a petition and dismissed it on the same ground.
Harshada’s lawyer Samir Vaidya submitted before the high court that his client was employed in the United States of America and was unable to remain present due to employment rules and regulations she was governed by.
Vaidya also said both parties have been living separately for over a year and the refusal of registration of the petition merely on the ground that it was sought to be filed by the petitioner's Power of Attorney holder in itself does not empower the family court to reject the petition.
He placed reliance on a judgment of the high court in Mukesh Narayan Shinde v Palak Mukesh Shinde to submit that it is permissible for the family court in the light of technological development to arrange for e-counselling and e-verification by video conference. He also relied upon the judgment of Punjab & Haryana High Court in Navdeep Kaur v Mahinder S Ahluwalia to submit that personal appearance of the parties at the time of presentation of petition for divorce by mutual consent is not mandatory and the parties may be represented through duly constituted attorney.
At the outset, the court noted-
“On perusal of the impugned order passed by the Judge, Family Court, it appears that the learned Judge, Family Court has failed to apply any legal provision to the facts in hand. The Judge, Family Court, did not bother to refer to the judgments cited before it and even did not bother to peruse the procedure which is required to be complied by the parties at the time of filing of such petition before the Family Court seeking divorce by mutual consent.”
Justice Dangre stated that the family court is bound to follow the Code of Civil Procedure and Order 3 of the Code deals with recognized agents and pleaders.
Order III Rule 2 specifically mentions recognized agents of parties by whom such appearances, applications and acts may be made or done which includes a person holding Power of Attorney authorizing them to make such appearances, application and acts on behalf of such parties, the court said.
After examining various judgments and the Code, the court was convinced that a Power of Attorney is an authorized person through whom the pleadings can be duly made and verified under the procedure contained in the Code of Civil Procedure.
Finally, the court set aside the order of rejection of petition passed by the family court and said-
“In view of the aforesaid circumstances, whether the issue involved in the present case was at a more preliminary level i.e. at the stage of filing of the petition through a Power of Attorney holder, it can be seen that there are no legal lacunae in filing of the petition through a registered Power of Attorney, and the said petition needs to be accepted by setting aside the impugned order by the Family Court. Further, in the light of the said legal position, Family Court will not insist upon the presence of the parties before the Court and would arrange for the consent terms to be recorded either through Skype or adopting any other technology and the proceedings contemplated under Section 13B of the Hindu Marriage Act in the time schedule specified therein.”