Hindu Marriage Act, 1955 - S. 13B - Mutual Divorce - Power of Attorney holder - there is no legal lacunae in filing of the petition through a registered Power of Attorney - 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.
Held:- At the stage of filing of the petition through a Power of Attorney holder, it can be seen that there is 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL
APPELLATE JURISDICTION
CORAM: SMT.BHARATI H. DANGRE, J
PRONOUNCED ON: 6th APRIL 2018
WRIT PETITION ST. NO.1788 of 2018
Harshada Bharat Deshmukh .. Petitioner
Versus
Bharat Appasaheb Deshmukh .. Respondent …
Mr.Samir A. Vaidya with Mr.Abhilesh Chitre for the petitioner.
Mr.Kaustubh
N. Marathe with Ms.Madhavi Tavanandi for the respondent.
JUDGMENT
1. The petitioner has
approached this Court for quashing and setting aside the order passed by the
Principal Judge, Family Court No.9, Pune on 1st
January 2018 thereby rejecting the prayer
made by petitioner no.2 before the Court to file a petition, on mutual divorce
under Section 13B of the Hindu Marriage Act through the Power of Attorney
holder.
The
petitioner is an Indian citizen and she filed a petition seeking dissolution of
marriage by mutual consent and the said petition presented before the Family
Court is filed by the husband of the petitioner Mr.Bharat Appasaheb Deshmukh
and the petitioner Ms.Harsha Bharat Deshmukh jointly. The said petition sets
out the terms and conditions on which the marriage solemnized between the
parties on 1st May 2002 as per Hindu Vedic Rites and
Ceremonies at Jalgaon, would be dissolved. The petition states that the
petitioner nos.1 and 2 are residing separately from 8th May 2016 and
there is no cohabitation between the parties since 8th May 2016 and
inspite of reconciliation between the parties, the marriage has failed, and there
are no further chances of reconciliation between the parties any more. The
petition also states that in the wake of the aforesaid development, the parties
have decided to dissolve the marriage legally through the deed of divorce by
mutual consent.
After
setting out the terms and conditions in detail, the petition presented before
the Family Court at Pune on 22nd December 2017 is signed by the petitioner
no.1 husband and on behalf of petitioner no.2 wife, it is signed by the father
and Power of Attorney holder Mr.Sahmant Laxman Patil. The verification clause
of the said petition reveals that the husband Bharat Appasaheb Deshmukh has verified
the said petition along with the father and Power of Attorney holder holder of
the petitioner no.2. An
affidavit accompanying the said petition is also sworn by Mr.Bharat Appasaheb
Deshmukh, petitioner no.1 in person, and on behalf of petitioner no.2, the said
affidavit is sworn by the father and Power of Attorney of petitioner no.2.
2. It is on this petition the Principal Judge, Family Court passed the order which
reads below:
“ORDER
BELOW CIVIL STAMP NO.3028/2017 dtd.22/12/2017
Mr.Bharat Appasaheb Deshmukh And Mrs.Harshada
Bharat Deshmukh Perused application and authority relied by the Petitioners.
Heard
Learned Advocate for Petitioners. Petitioner
No.2 is not present before the Court for presentation. Petitioner No.2 wants to
file petition through Power of Attorney Holder. Petitioners relied on III
(2016) DMC 257 ALLAHABAD HIGH COURT. The
facts of this authority and present case are different. This authority is of
Hon'ble Allahabad High Court. In my opinion, both the petitioners should remain
present before the Court for presentation of the petition. Hence, petition
cannot be registered.
Pune
Dt. 01/01/2018
(Smt.S.S.Sawant)
Principal Judge,
Family Court No.1, Pune “
3. The present petition assails the above
mentioned order of the Judge, Family Court. Mr. Samir Vaidya, learned counsel
for the petitioner in support of the petition would submit that the Family
Court has erred in refusing the registration of the petition under Section 13B of
the Hindu Marriage Act on the ground that the petitioner no.2 is not present
before the Court at the time of filing of present petition. Learned counsel
would submit that the petitioner is employed in United States of America and
she is not in a position to attend the Court proceedings and she was not able
to remain present at the time of filing of the petition due to employment rules
and regulations prevailing in the United States of America and according to the
learned counsel, this fact has been ignored by the Judge, Family Court. The learned
counsel would also submit that the refusal of registration of the petition
merely on the ground that the petition was presented and/or sought to be filed
by the petitioner's Power of Attorney holder in itself does not empower the
learned Judge to reject the petition and therefore, he would submit that the
said order is perse illegal. Learned counsel for the petitioner would place
reliance on the judgment delivered by the learned Single Judge of this Court in
the case of Mukesh
Narayan Shinde Vs. Palak Mukesh Shinde, 2012(3) ALL MR 521 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. He would also rely upon the
judgment in the case of NavdeepKaur
Vs. Mahinder Singh Ahluwalia
(Punjab & Haryana High Court), 2010(4) ALL MR (JOURNAL) 49 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. However,
in such a case, the Court will have to be cautious and vigilant in recording
its satisfaction about consent. Another authority on which the learned counsel
has placed reliance is of the Lucknow bench in the case of Kanwalijeet Sachdev Vs. State of U.P
& anr; 2016(6) ALJ 589 which lays down a similar position of law
and deal with a situation, where one of the parties before the Court seeking divorce
by mutual consent has been residing abroad and when both the parties with
consent have arrived at settlement agreement, that has been brought to the
notice of the Court.
4. 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.
The Judge, Family Court has merely observed that the authority cited is of
Allahabad High Court and in her opinion both the parties should remain present
before the Court for presentation of the petition. It is unfortunate that the
learned Judge of the Family Court also did not refer to any law on the said aspect.
5. The Family Court, 1984 which provides for establishment of Family Court with a
view to permit conciliation and to secure speedy settlement disputes relating
to marriage and family affairs, confers jurisdiction of the Family Court to try
the suits and proceedings between the parties to a marriage claiming dissolution
of marriage by mutual consent as contemplated under Section 13B of the Hindu
Marriage Act.
Section
10 of the Family Courts Act provides that the provisions of Code of Civil
Procedure shall apply to the suits and proceedings before a Family Court and
for the purposes of the said provisions of the Court, the Family Court shall be
deemed to be a Civil Court and shall have all the powers to such Court.
Exception is only carved out in case of the provisions of Code of Civil Procedure
being made applicable to proceedings under Chapter IX to that Code before the
Family Court. Thus, it is amply clear that the Family Court is duty bound to
follow the Code of Civil Procedure and it is deemed to be a Civil Court for the
purposes of the provisions of the Act and possesses the powers of a Civil Court.
6. The Code of Civil Procedure deals with the pleadings and verification of
pleadings. Order 3 of the Code of Civil Procedure deals with recognized agents
and pleaders. Rule 1 of Order 3 provides for appearance and it is reproduced
below :
Order III Rule 1
:Appearances, etc., may be In person, by recognized agent or by pleader.Any appearance, application or act in or
to any court, required or authorized by law to be made or done by a party in
such court, may, except where otherwise expressly provided by any law for the
time being in force, be made or done by the party in person, or by his
recognized agent, or by a pleader appearing, applying or acting, as the case may
be, on his behalf: Provided that any such appearance shall, if the court so
directs, be made by the party in person.
Order
III Rule 2 specifically mentions about recognized agents of parties by whom
such appearances, applications and acts may be made or done which includes
person holding Power of Attorney authorizing them to make such appearances,
application and acts on behalf of such parties. Rule 2 of Order III reads thus
:
2 Recognized agents.The recognized agents of parties by whom
such appearance, applications and acts may be made or done are –
(a) persons
holding powers of attorney, authorizing them to make and do such appearances,
applications and acts on behalf of such parties;
(b) persons carrying on trade
or business for and in the names of parties not resident ‘within the local limits
of the jurisdiction of the court within which limits the appearance,
application or act is made or done, in matters connected with such trade or business
only, where no other agent is expressly authorized to make and do such
appearances, applications and acts.
Further,
Order VI of the Code provides for pleadings generally and pleadings is
construed to mean plaint or written statement.
Order
VI of the Code of Civil Procedure deals with the contents of pleadings and
Order VI Rule 14 provides for signing of the pleadings which reads thus :
14. Pleading to be signed – Every pleading shall be signed by the
party and his pleader (if any) Provided that where a party pleading is, by
reason of absence or for other good cause, unable to sign the pleading, it may
be signed by any person duly authorized by him to sign the same or to sue or
defend on his behalf.
Rule
15 provides for verification of pleadings. It reads thus :
Order VI Rule 15 :Verification of
pleadings – (1) Save as
otherwise provided by any law for the time being in force, every pleading shall
be verified at the foot by the party or by one of the parties pleading or by
some other person proved to the satisfaction of the Court to be acquainted with
the facts of the case.
(2)
The person verifying shall specify, by reference to the numbered paragraphs of
the pleading, what he verifies of his own knowledge and what he verifies upon
information received and believed to be true.
(3)
The verification shall be signed by the person making it and shall state the
date on which and the place at which it was signed.
(4)
The person verifying the pleading shall also furnish an affidavit in support of
his pleadings.
7.
Thus, it can be seen that verification to a plaint must be by a party pleading
or by some other person proved to the satisfaction of the Court to be acquainted
with the facts to which a person is verifying. Subrule (2) of Rule 15 mandates
a person who verifies such pleadings specifically by making reference to the specific
number of paragraphs in the pleadings as to what he verifies on his own
knowledge and what he verifies on information receipt and believe to be true.
It can thus be seen that the pleadings can be verified by either the person
pleading it or by some other person who is acquainted with the facts of the
case. Further,
by virtue of Order III of CPC, any appearance, application or act in or to any
Court required or authorized by law, if made or done by a party in such a
Court, may be done by a party in person himself or by his recognized agent or
by a pleader appearing or acting in his behalf. This, however, is subject to an
exception where any law expressly forbids this to be done. Thus, an appearance,
application or act in any or to any Court, can be effectively made or done by a
party, either he himself or by his recognized agent.
A
recognized agent would cover a person who is a Power of Attorney holder
specifically authorized to act on behalf of the original party. This is a
specific application as it were under the provisions contained in Section 1A
and two of the Power of Attorneys Act 1882. The Power of Attorney has a
definite connotation and the Hon'ble Apex Court in the case of State of Rajasthan Vs. Basant
Nahata, AIR 2005(12) SCC 340 in paragraph no.13 has referred to the
scope of Power of Attorney in the following words :
A grant of power of attorney is
essentially governed by Chapter X of the Indian Contract Act. By reason of a
deed of power of attorney, an agent is formally appointed to act for the principal
in one transaction or a series of transactions or to manage the affairs of the principal
generally conferring necessary authority upon another person. A deed of power of
attorney is executed by the principal in favour of the agent. The agent derives
a right to use his name and all acts, deeds and things done by him and subject to the limitations contained
in the said deed, the same shall be read as if done by the donor. A power of
attorney is, as is wellknown, a document of convenience”.
Thus,
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 and since it is obligatory on the Family Court to follow the Code,
such a mode of presenting an application before the Court and its verification
is duly permissible.
8. The Hon'ble Apex Court in case of Janki
Vashdeo Bhojwani Vs. IndusInd Bank Ltd, AIR 2005 SC 439, has held that the word 'acts' employed in
Order 3, Rule 1 and 2 confines only in respect of 'acts' done by Power of
Attorney holder in exercise of power granted by the instrument and it would not
include deposing in place and instead of principal. It was also held that he
cannot depose for the principal in respect of the matter which only the
principal can have the personal knowledge and in respect of which the principal
is entitled to be crossexamined.
Further,
a larger Bench of The Hon'ble Apex Court in the case of A.C. Narayanan vs. State of
Maharastra & ors, (2014) 11 SCC 790 while dealing with the issue as to
whether a complaint under the Negotiable
Instruments Act can be signed and filed through a Power of Attorney holder on
behalf of the complainant held that though the case of Janki Bhojwani (supra), was related of Power of Attorney
holder under Code of Civil Procedure, but it was concluded that a plaint by a
Power of Attorney holder on behalf of the original plaintiff is maintainable
provided he has personal knowledge about the transaction in question. The
larger Bench applied the said principle to a criminal law by making it as an exception
to well settled position that criminal law can be put in motion by anyone and
strangers to the transaction in question i.e. legal
heirs etc, can also carry forward the pending criminal complaint or initiate
criminal action if the original complainant dies. The Hon'ble Apex Court,
however, clarified that such Power of Attorney holder should have knowledge
about the transaction in question so as to able to bring on record the truth of
the grievance/offence, otherwise, no criminal justice could be achieved. In a
case, a payee or holder in due course, is expected to sign or appear or depose.
The Court has thus held that a complaint filed for on behalf of the petitioner
or a holder in due course is good enough compliance which Section 142 of the Negotiable
Instruments Act. The Hon'ble Apex Court in the aforesaid judgment observed thus
:
“The power of attorney holder is the
agent of the grantor. When the grantor authorises holder to initiate legal
proceedings and the attorney holder to initiate legal proceedings, he does so
as the agent of the grantor and the initiation is by the grantor represented by
his attorney holder and not by the attorney holder in his personal capacity. Therefore,
where the payee is a proprietary concern, describing itself as a sole
proprietary concern represented by its own proprietor, and the proprietor or
the proprietary concern by the attorney holder under a power of attorney
executed by the sole proprietor. However, we make it clear that the power of
attorney holder cannot file a complaint in his own name as if he was the complainant”.
9. It would also be necessary to refer to Section 13B of the Hindu Marriage Act
which reads thus :
13B
Divorce by mutual consent (1)
Subject to the provisions of this Act a petition for dissolution of marriage by
a decree of divorce may be presented to the district court by both the parties
to a marriage together, whether such marriage was solemnised before or after
the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on
the ground that they have been living separately for a period of one year or
more, that they have not been able to live together and that they have mutually
agreed that the marriage should be dissolved.
(2)
On the motion of both the parties made not earlier than six months after the
date of the presentation of the petition referred to in subsection (1) and not
later than eighteen months after the said date, if the petition is not
withdrawn in the meantime, the court shall, on being satisfied, after hearing
the parties and after making such inquiry as it thinks fit, that a marriage has
been solemnized and that the averments in the petition are true, pass a decree
of divorce declaring the marriage to be dissolved with effect from the date of the
decree.
It
is thus apparent that the Court by mutual consent would dissolve a marriage
when the parties mutually agree amongst themselves for dissolution of the said marriage.
The manner in which the proceedings are to be dealt, is set out in Section 13B
of the Hindu Marriage Act.
10. Section 13B of the Hindu Marriage Act do not contain any provision abrogating
the power of power of attorney holder under the Code of Civil Procedure, and
therefore, the procedure governing the proceedings filed under Section 13B of
the Hindu Marriage Act would be governed by Order III as well as Order VI of
the Code of Civil Procedure. The Judge, Family Court has not given any
consideration to the provisions governing the procedure in relation to the
proceedings of mutual divorce filed under Section 13B of the Hindu Marriage
Act. It is imperative on the part of the Family Court to entertain the
application for divorce by filing mutual consent presented to it on the ground
that the parties have been residing separately for more than a year and they
have not been able to live together and they have mutually agreed to dissolve
the marriage. The procedure for dissolving the marriage is set out in
subsection (2) of Section 13B which mandates the Court on being satisfied that
a marriage has been solemnized and that the averments in the petition for mutual
consent filed by the parties is true, to pass a decree of divorce dissolving
the marriage, after affording an opportunity to the parties and after making
such enquiry as it thinks fit. The Court has to thus ascertain the expenses of
a marriage and irrevocable break down of the marriage with no possibility of
any reconciliation.
11. Perusal of the authorities on which the learned counsel has placed reliance
would clearly reveal that there can be no dispute that the attorney of the
party can appear in the Court on behalf of the party and do the act as
specified in the Power of Attorney. The authorities have gone to the extent of
observing that an Attorney is not incompetent witness and he can appear in the Court
and depose in the Court as a witness in respect of the facts which are in his
knowledge. However, the learned Single Judge of this Court in the case of Mukesh Narayan Shinde Vs. Palak Mukesh
Shinde (supra) has
specifically concluded that in the light of advanced technological development,
physical presence of the parties even at the time of allowing the petition by
mutual consent, is not mandatory. The Court has observed in paragraph 6 of the
said judgment that the physical presence of both the parties is generally asked
and necessary to verify the authenticity of the identity of the parties to
confirm their consent. However, in peculiar circumstances, like where one of
the parties cannot remain present due to certain practical difficulties i.e.
job, leave, visa etc. Due to globalization and since noticeable educated young persons
are crossing the borders of India and it is not possible to remain present.
This Court had observed that there is no illegality to solve such difficulty by
adopting novel and available ways by use of advanced technology of
communication and new scientific method. In the peculiar circumstances of the
case, the Court had directed online counselling to be done with the help of
webcam and online consent through the webcam and laptop/computer.
12. 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 is 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.
13. The impugned order passed by the Family Court is quashed and set aside.
Writ
Petition is allowed in terms of prayer clause (a).
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