Case Note & Summary
The petitioner husband filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of cruelty, which was pending before the Family Court, Mumbai. During the pendency, the parties decided to settle their matrimonial dispute amicably and sought to convert the petition to one for divorce by mutual consent under Section 13B of the Act. The husband resided in Mumbai, while the wife had moved to New Jersey, USA, and her father held a power of attorney to represent her. The parties filed consent terms and requested the Family Court to convert the petition. However, the Family Court rejected the request, holding that the respondent wife was absent throughout and counselling had not taken place. The husband challenged this order by way of a writ petition before the Bombay High Court. The High Court observed that the requirement of counselling under Section 13B is not mandatory and can be waived if the parties have genuinely settled. The court also held that a power of attorney holder can represent a party for filing consent terms, especially when the party is residing abroad. The High Court set aside the Family Court's order and directed it to convert the petition to one under Section 13B and proceed in accordance with law. The court emphasized that the Family Court should not insist on personal presence if the consent is genuine and the parties have settled their differences.
Headnote
A) Family Law - Mutual Consent Divorce - Conversion of Petition - Section 13B, Hindu Marriage Act, 1955 - The Family Court rejected the conversion of a divorce petition from cruelty to mutual consent on the ground that the respondent wife was absent and counselling had not taken place. The High Court held that the requirement of counselling under Section 13B is not mandatory and the court can waive it if the parties have settled amicably. The court also held that a power of attorney holder can represent a party for filing consent terms. (Paras 4-6) B) Family Law - Mutual Consent Divorce - Representation through Power of Attorney - Section 13B, Hindu Marriage Act, 1955 - The respondent wife was residing in the USA and her father held a power of attorney. The High Court held that the power of attorney holder can represent the party for the purpose of filing consent terms and the court should not insist on personal presence if the consent is genuine. (Paras 4-6)
Issue of Consideration
Whether the Family Court was justified in rejecting the application to convert a divorce petition under Section 13(1)(ia) to one under Section 13B of the Hindu Marriage Act, 1955, on the ground that the respondent wife was absent and counselling had not taken place.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 7th February 2012, and directed the Family Court to convert the petition under Section 13(1)(ia) to one under Section 13B of the Hindu Marriage Act, 1955, and proceed in accordance with law.
Law Points
- Conversion of divorce petition under Section 13(1)(ia) to Section 13B of Hindu Marriage Act
- 1955
- Counselling not mandatory for mutual consent divorce
- Power of attorney holder can represent party for consent terms
