Section 13B of the Hindu Marriage Act, 1955 refers to divorce by mutual consent wherein the consent of both parties is of free will. However, certain parties are unable to make their physical presence for filing of the petition or for the purpose of giving their unequivocal consent as they are situated abroad. In such a case, can a POA holder act on behalf of wither parties for the purpose of filing a mutual divorce petition and could consent be given without the mandate of physical presence? Justice Bharati Dangre of the Bombay High Court reviewed these issues placed before it through the Writ Petition filed by the Petitioner challenging the order of the Judge, Family Court Pune denying registration of the petition.
The Judge, Family Court Pune denied registration of the petition for mutual divorce on the ground that one of the spouses was not present before the Court at the time of filing the petition. The Petitioner, by way of this Writ, challenged the order denying registration of the petition. The counsel for the petitioner relied upon the judgement of the Single Judge Bench of the Bombay High Court in Mukesh Narayan Shinde Vs. Palak Mukesh Shinde to submit that it is permissible for the Family Court in the light of technological development to arrange for Ecounselling and Everification by video conference. The Counsel also placed reference to the judgment of Navdeep Kaur Vs. Mahinder Singh Ahluwalia of the Punjab & Haryana High Court 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.
On perusing the order of the Family Court, Justice Dangre noted that the Family Court had not taken into consideration the application of proper and precise legal provisions. While placing inference to Section 10 of the Family Courts Act, it was pointed out that the provision directs applicability of Code of Civil Procedure suits and proceedings before a Family Court and accordingly, a Family Court shall also have the powers of a Civil Court. Stating this, Justice Dangre further clarified the applicability of Order 3 of the Code which speaks about recognized agents and pleaders and also relied on various other judgments pertaining to Power of Attorneys and their scope in legal proceedings.
Accordingly, the High Court quashed and set aside the impugned order of the Family Court and permitted filing of the petition through Power of Attorney Holder and also granted permission to record consent of the spouse via Skype.
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