Aditya Jagannath and another vs NIL . M.F.A.No.4453/2020 (FC) decided on 10 November 2020.
Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/MFA-4453-2020.pdf
HELD: 26. Permission is granted to the second appellant to be represented through her Power of Attorney holder, who is none other than her father on the strength of the Special Power of Attorney executed by her.
Relevant paragraphs: 16. In recent times, we find that the parties who seek for dissolution of their marriage by a decree of divorce by mutual consent do so after long negotiation and discussion, some times they, being located at different parts of the globe, through skype, telephonically or use of other forms of technology, such as whatsapp calls, video conferencing etc. On account of the parties residing in different parts of the country or across the globe and owing to constraints of job or other constraints, such as illness etc., it may not be possible for both parties to sign and verify the pleadings and jointly present the petition for dissolution of their marriage by mutual consent before the Court of Law. This is so in the instant case. In such circumstances, one of the parties to the petition may avail of the facility of appointing a Power of Attorney/agent, in whom the party has full trust and confidence to represent her or him in a proceeding to be filed as in the instant case before the Family Court or any other Court seeking matrimonial or any other relief. Therefore, the provisions of the various enactments must be harmoniously read and interpreted, so as to make it conducive for availing or taking recourse through appointment of a Power of Attorney holder, to represent a party in a proceeding. This is particularly, as in the instant case, where parties are seeking dissolution of their marriage by a decree of divorce by mutual consent. Moreover, in such cases, a party can carefully think over the matter and appoint a person in whom the party would have full trust and confidence to be as her or his Power of Attorney holder. It is on the strength of such a document of Power of Attorney that the Power of Attorney holder would represent a party to jointly file a petition for dissolution of their marriage through mutual consent on behalf of the executor or Power of Attorney. The Family Court may insist on satisfying itself that indeed the parties have an intention that they should seek a decree of divorce by mutual consent and in order to fully satisfy itself, the Court may, apart from examining the Power of Attorney holder representing any party, also through video conferencing, (which is now widely being used on account of the Covid-19 pandemic), examine the parties including the party who is represented through the Power of Attorney holder. That merely because one of the parties would file the petition seeking dissolution of marriage by mutual consent jointly with the other party, through a Power of Attorney, one cannot ignore the fact that the Court must satisfy itself about the genuineness of the petition filed by the parties seeking dissolution of their marriage by a decree of divorce by mutual consent irrespective of whether it is filed through a Power of Attorney. In fact, the filing of such a petition is an exception to what has been stated in Section 23 of the Act. Even so, the Court ought not to be pedantic but must apply a flexible procedure which is in accordance with law and not a procedure, but not one which is incongruent in law.
17. In fact, recently, the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746] while considering Section 13B(2) of the Act, which stipulates a cooling off period of six months which is also a period of locus poenitentiae, after filing a petition of divorce under Section 13B(1) of the Act, so as to give an opportunity to the parties to rethink over the decision and thereafter, to confirm their decision six months later, has made the said provision less rigid and more pro-litigants by bearing in mind the changed circumstances and peculiarities of the case. Nevertheless, in the said case, it has been observed that the period of six months should be waived owing to the circumstances of the particular case, the exigencies of the situation and bearing in mind the interest of the parties so that justice would be subserved in the matter. In this regard, the Hon’ble Supreme Court has observed that the period mentioned in Section 13B(2) could be construed to be as directory and not mandatory and it would be open to the Court to exercise its discretion in the facts and circumstances of each case, where there are no possibilities of parties to reconcile, cohabit and there are no chances of alternative rehabilitation.
18. A reading of the above would clearly indicate that the Hon’ble Supreme Court has also made it flexible in the context of representation of the parties by their close relatives, partners or siblings or any other person in whom they have complete trust to be appointed as a Power of Attorney holder. In fact, as already noted, the Court can always satisfy itself about the genuineness of the intention of the parties who approach the Court either by themselves or through a Power of Attorney holder by way of video conferencing, so that any doubts about the genuineness of the petition being filed before the Court is removed.
19. On a perusal of the aforesaid observations of the Hon’ble Supreme Court, it is clearly permissible for the parties to be represented by their partners or siblings in a proceeding filed under Section 13B(1) of the Act or any other similar provision in any other enactment, which provides for dissolution of marriage by a decree of divorce by mutual consent.
20… Moreover, for the sake of satisfying and genuineness of the petition, the Family Court could always resort to video conferencing through the medium of which, both the parties could appear apart from the Power of Attorney holder of the second appellant appearing for her, so as to completely satisfy itself about the genuineness of the petition filed by the parties just as presently in this appeal, the appellants have both appeared through video conferencing, first appellant from Bengaluru and the second appellant from Toranto, Canada.
26. Permission is granted to the second appellant to be represented through her Power of Attorney holder, who is none other than her father on the strength of the Special Power of Attorney executed by her.
27. Further, in order to satisfy itself, the Family Court is at liberty to direct the parties especially the second appellant to appear through video conference or skype, before the Court and if such a direction is issued, the second appellant shall comply with the said direction.
Judgments cited/relied on: Komal S. Padukone vs. Principal Judge, Family Court [ILR 1999 KAR 2811], Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukh [AIR 2018 Bombay 148], Sudha Ramalingam vs. Registrar General, High Court of Judicature at Madras [AIR 2015 (NOC) 266 (MAD)], Kunhi Purayil Mukundan Naveen vs. Anjalika Dinesh [AIR 2011 (KER) 186], Dasam Vijay Rama Rao vs. M.Sai Sri [ALD-2015-4-757], Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746], Komal S. Padukone vs. Principal Judge, Family Court at Bangalore City [ILR 1999 KAR 2811], Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukh [AIR 2018 Bombay 148], Sudha Ramalingam vs. Registrar General, High Court of Judicature at Madras [AIR 2015 (NOC) 266 (MAD.)], Dasam Vijay Rama Rao vs. M.Sai Sri [ALD-2015-4-757].
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 