Case Note & Summary
The petitioner, Harshada Bharat Deshmukh, an Indian citizen residing abroad, filed a writ petition challenging the order of the Principal Judge, Family Court No.9, Pune dated 1st January 2018, which rejected her application to file a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 through her father as power of attorney holder. The marriage was solemnized on 1st May 2002, and the parties had been living separately since 8th May 2016. The joint petition for mutual divorce was presented before the Family Court on 22nd December 2017, signed by the husband and by the wife's father as power of attorney holder. The Family Court rejected the petition on the ground that the wife must personally appear and file the petition. The High Court considered the legal issue of whether a power of attorney holder can sign and verify a petition for mutual divorce. The court analyzed the provisions of Section 13B and Order 3 Rule 1 of the CPC, and held that there is no bar to a power of attorney holder signing and verifying the petition, as long as the consent is genuine and voluntary. The court noted that the wife was residing abroad and had executed a valid power of attorney in favor of her father. The court also observed that the Family Court can later examine the parties to ensure that the consent is not withdrawn. The High Court allowed the writ petition, set aside the impugned order, and directed the Family Court to proceed with the petition in accordance with law.
Headnote
A) Family Law - Divorce by Mutual Consent - Power of Attorney - Section 13B Hindu Marriage Act, 1955 - The issue was whether a wife residing abroad can file a petition for mutual divorce through her father as power of attorney holder. The Family Court rejected the petition on the ground that the wife must personally appear. The High Court held that the power of attorney holder can sign and verify the petition, as the requirement of personal presence is not mandatory at the filing stage, and the court can later examine the parties to ensure genuine consent. The impugned order was set aside and the Family Court was directed to proceed with the petition. (Paras 1-17)
Issue of Consideration
Whether a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 can be filed and verified through a power of attorney holder when the spouse is residing abroad.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 1st January 2018, and directed the Family Court to proceed with the petition for divorce by mutual consent in accordance with law.
Law Points
- Power of attorney holder can sign and verify a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act
- 1955
- provided the consent is genuine and voluntary
- and the party is unable to appear due to valid reasons such as residing abroad.
Case Details
Writ Petition St. No.1788 of 2018
Mr. Samir A. Vaidya with Mr. Abhilesh Chitre for the petitioner, Mr. Kaustubh N. Marathe with Ms. Madhavi Tavanandi for the respondent
Bharat Appasaheb Deshmukh
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition challenging the order of the Family Court rejecting the application to file a petition for divorce by mutual consent through a power of attorney holder.
Remedy Sought
Quashing and setting aside the order dated 1st January 2018 passed by the Principal Judge, Family Court No.9, Pune, and allowing the petition for mutual divorce to be filed through the power of attorney holder.
Filing Reason
The Family Court rejected the petition for mutual divorce on the ground that the wife must personally appear and file the petition, despite her being abroad and having executed a power of attorney in favor of her father.
Previous Decisions
The Family Court rejected the application on 1st January 2018.
Issues
Whether a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 can be filed and verified through a power of attorney holder when the spouse is residing abroad.
Submissions/Arguments
The petitioner argued that there is no bar in law for a power of attorney holder to sign and verify a petition for mutual divorce, and the Family Court erred in rejecting the application.
The respondent supported the petition and submitted that the consent was genuine and voluntary.
Ratio Decidendi
A power of attorney holder can sign and verify a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, as the requirement of personal presence is not mandatory at the filing stage. The court can later examine the parties to ensure genuine consent.
Judgment Excerpts
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 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.
Procedural History
The petitioner filed a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 before the Family Court at Pune on 22nd December 2017. The Family Court rejected the application to file the petition through the power of attorney holder on 1st January 2018. The petitioner then filed the present writ petition before the High Court of Judicature at Bombay on 6th April 2018.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13B
- Code of Civil Procedure, 1908 (CPC): Order 3 Rule 1
