2017(3) Law Herald (P&H) 2315 : 2017 LawHerald.Org 1391
INTHE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Daya Chaudhary
C.R. No. 714 of 2017
Amrinder Singh
v.
Seerat Kaur Decided on 02/05/2017

For the Petitioner:  Mr. Ankur Malik, Advocate.
For the Respondent: Mr. I.S. Saggu, Advocate.
DivorceBy Mutual ConsentIt is not mandatory for the parties to appear in person in court at the time of filing of petition and also at the time of second motionThe attorney can be authorised to appear.
  • Hindu Marriage Act, 1955, S.13-B–Divorce–By Mutual Consent-Power of Attorney
    holder—It is not mandatory for the parties to appear in person in court at the time of
    filing of petition for divorce by way of mutual consent and also at the time of
    second motion—The attorney can be authorised to appear—In case the party is
    represented through power of attorney who is none else but a close relative, the
    genuineness of the statements, pleas and proceedings cannot be doubted-It is
    not that the satisfaction can only be recorded when the parties are present in
    person—There can be a case where even in the presence of the parties, the Court
    may not feel satisfied about their bona fides or consent.
  • Hindu Marriage Act, 1955, S.13-B–Divorce-By Mutual Consent-Power of Attorney
    holder-ln present case, money has already been paid to the respondent-wife-The
    presence of the petitioner husband is not mandatory in the proceedings for
    divorce by way of mutual consent-In the present case, the first motion statement
    on behalf of petitioner-husband has already been recorded and it is only at the
    stage of recording of second motion statement, the presence of petitioner-
    husband has been sought by the trial Court without recording any reason or
    satisfaction of the Court-Impugned order of trial court set aside.
CASES CITED:
  1. Neelima Chopra v. Anil Chopra 1987 (1) HLR 187. (Para 9)
  2. Padmakiran Rao (Mrs.) v. B. Venkateramana Rao 1996 (2) HLR 271(Para 10)
JUDGMENT
Mrs. Daya Chaudhary, J.:- The present revision petition has been filed for setting aside impugned order dated 26.10.2016 passed by District Judge, Family Court, Faridabad to the extent that the petitioner has been directed to be present in person at the time of recording second motion statement in mutual consent divorce petition No. HMA1312/27.10.2016 filed under Section 13-B of the Hindu Marriage Act and for granting exemption from personal appearance and to allow Special Power of Attorney holder, namely, Sh. Bhagwan Singh to appear, act and make statement on behalf of the petitioner.
  1. Briefly, the facts of the case, as made out in the present petition are that petitioner got married to respondent on 10.2.2013 according to Sikh rites and rituals. They remained together for sometime but thereafter they could not pull together in their married life. FIR No. 129 dated 7.6.2014 was registered at Police Station Faridabad NIT against the petitioner and his parents. Subsequently, the dispute between the parties was amicably settled vide compromise deed dated 16.5.2016 with the intervention of the respectables of the Society and family members, wherein, it was mutually agreed that the respondent-wife will not insist the petitioner-husband to appear before the Court for making statement as the petitioner was residing in Australia and was unable to come to India. This condition was mentioned in para No. 7 of the compromise deed. Accordingly, the petitioner gave power of attorney to his uncle, namely, Bhagwan Singh. On the basis of compromise arrived at between the parties, the petitioner husband approached this Court by way of filing Crl. Misc. No. M-26891 of 2016 for quashing of the FIR, which was allowed vide order dated T5.11.2016. Thereafter, a petition under Section 13-B of the Hindu Marriage Act for dissolution of marriage by way of mutual
consent was filed by the petitioner-husband through his uncle, namely, Sh. Bhagwan Singh, being Special Power of Attorney holder. The statements of both the parties were recorded on 26.10.2016 but the trial Court directed the Special Power of Attorney holder to produce husband-petitioner in person at the time of recording of second motion statement on 2.5.2017. The petitioner-husband filed the present petition for setting aside impugned order dated 26.10.2016 partly, vide which, the petitioner was directed to remain present for making second motion statement in the divorce petition filed under Section 13-B of the Hindu Marriage Act.
  1. Learned counsel for the petitioner contends that the matter has already been compromised
    between the parties and respondent-wife has no objection in case the second motion
    statement on behalf of the petitioner husband is recorded through his attorney. The amount
    settled in the compromise has already been paid to the respondent-wife still the petitioner has
    been asked to appear in person for recording of the statement of the second motion, whereas,
    statement of first motion has already been recorded. Learned counsel further contends that
    the petition has also been filed through Power of Attorney and the statement made by the
    Attorney is equally good as he has been authorized by the petitioner-husband to make
    statement on his behalf. Respondent-wife has also no objection in recording the statement of
    attorney holder.
  2. Learned counsel for the respondent has not disputed filing of the petition under Section 13-
    B of the Hindu Marriage Act and also recording of the first motion statement. He has also not
    disputed the factum of grant of amount as per compromise arrived at between the parties. It is
    also not disputed that FIR No. 129 dated 7.6.2014 registered under Section 406,498-A IPC at
    Police Station Faridabad NIT has already been quashed by this Court on the basis of
    compromise arrived at between the parties.
  3. Heard the arguments advanced by learned counsel for the parties and have also gone
    through the impugned order and other documents available on file.
  4. Admittedly, the petition under Section 13-B of the Hindu Marriage Act for dissolution of
    marriage has been filed with mutual consent by the petitioner-husband through Special Power
    of Attorney, namely, Sh. Bhagwan Singh. As per Special Power of Attorney, the Power of
    Attorney holder has been authorized to file/pursue/defend all cases relating to matrimonial
    dispute with his wife pending before the Court at Faridabad or to be filed in the Court/Tribunal/
    He has been authorized to compromise/compound the cases in respect of said
    matrimonial dispute pending before any Court in India or Punjab and Haryana High Court at
    Chandigarh and Supreme Court of India. The Special Power of Attorney was also authorized
    to make statement on behalf of the petitioner-husband and to submit affidavit, statement
    before any Court.
  5. Learned counsel for the respondent-wife has no objection in case statement of Special Power
    of Attorney holder is recorded in the second motion as money has already been paid to her. In
    para No. 7 of the compromise, it has specifically been mentioned that the petition under
    Section 13-B of the Hindu Marriage Act will be filed through Sh. Bhagwan Singh being attorney
    holder of petitioner-husband and the statement will be made by him on his behalf and the
    respondent-wife will not insist the petitioner-husband to appear before the Court for making
    such statement.
  6. The issue which arises for consideration before this court is as to whether it is mandatory for
    the parties to appear in person in court at the time of filing of petition for divorce by way of
    mutual consent and also at the time of second motion or the attorney can be authorised to
    appear ?
  1. The High Court of Delhi in the case of Neelima Chopra Vs. Anil Chopra 1987 (1) HLR187
while referring to the provisions of Section 13-B of the Act and considering the issue of appearance of attorney in such cases, opined as under:-
“As I read it, if the conditions mentioned in Section 13-B are satisfied then the Court has no option but to grant a decree of divorce. It is no doubt true that subsection (2) of section 13-B requires the Court being satisfied “after hearing the parties and after making such inquiry as it thinks fit”. What is the satisfaction which is to be arrived at by the courts is provided by the said provision itself. The satisfaction which has to be arrived at by the court has to be that firstly a marriage had been solemnized and secondly that the averments in the petition are true. For arriving at such a satisfaction. I fail to understand the need for the parties to appear in person. In order to arrive at this satisfaction it is open to the parties to file affidavits or authorise someone to make statement testifying to the correctness of the contents of the petition. In both the parties, by way of affidavits or through counsel, state that they were married, and are able to produce proof of the marriage, and that they have been living separately and have not been able to live together for the prescribed period, then I see no reason as to why the court should not record its satisfaction as envisaged by Section 13-B (2) and to pass a decree for divorce thereon. The learned counsel for the petitioner has drawn my attention to the decision of the Calcutta High Court in the case of That undoubtedly was a case under the Special Marriage Act but the provisions of the two Acts are similar. In that case a/so the trial court had desired the personal presence of the parties but the Calcutta High Court observed that the same was not necessary. I am in respectful agreement with the aforesaid decision.”
  1. A Division Bench of Andhra Pradesh High Court in Padmakiran Rao (Mrs.) Vs. B.
    Venkateramana Rao 1996 (2) HLR 271 case while dealing with the similar issue held as under:-
“Relying on the wording ”after hearing the parties” in subsection (2) of Section 13-B, the learned Subordinate Judge took the view that both the parties to the marriage should necessarily be present in the Court for examination and the filing of affida vit will not be a substitute for that requirement. The learned Judge observed that unless the parties are personally present, it would be difficult for the Court to assess whether they have changed their mind since the date of filing the petition. We do not think that this is a correct view to be taken. ‘Hearing’ does not necessarily mean that both parties have to be examined. The word ‘hearing’is often used in a broad sense which need not always mean personal hearing. In any case, the evidence of one of the parties, i.e., the appellant herein was recorded by the Court. Thus, even if the word ‘hearing’ is construed in a literal sense that requirement must be deemed to have been satisfied in the instant case in view of the examination of the appellant. On the husband’s side there is evidence in the form of an affidavit which can be legitimately taken into account in view of Order XIX Rule 1 CPC. It is not as if the affidavit has been doubted or the other party wanted to cross examine the deponent of the affidavit. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of the parties The learned Judge fell into error of law in observing that he cannot look into the affidavit at all. There is also a valid reason for nonattendance of the respondent in the Court. In the circumstances, the order of the Lower Court is set aside and the appeal is allowed. We declare that the marriage between the parties shall stand dissolved with effect from the date of this judgment and a decree for divorce be passed. We make no order as to costs.”
  1. Section 21 of the Hindu Marriage Act provides that as far as may be, the proceedings under
    the Act are to be regulated by the CPC. Order 3 of CPC provides for appearance of the parties
    through the recognised agent or a pleader. The recognised agent may be a person holding
    power of attorney authorising him to make and do such appearances, applications and acts on
    behalf of such parties.
  1. Section 23 (1) (bb) of the Act provides that in any proceedings under the Act whether defended or
    not, the court has to be satisfied specially in the cases where the divorce is sought on the groundof
    mutual consent, that such consent has not been obtained by force, fraud or undue influence.
  2. In the present case, the dispute between the parties has been settled with certain terms and
    The respondent-wife has also no objection in case the statement of Special Power
    of Attorney Holder of petitioner-husband is recorded in the second motion. Moreover, money
    has already been paid to the respondent-wife. The presence of the petitioner husband is not
    mandatory in the proceedings for divorce by way of mutual consent. In case the petitioner-
    husband is represented through power of attorney who is none else but a close relative of the
    petitioner-husband, the genuineness of the statements, pleas and proceedings cannot be
    doubted. It is not that the satisfaction can only be recorded when the parties are present in
    person. There can be a case where even in the presence of the parties, the Court may not feel
    satisfied about their bona fides or consent. In the present case, the first motion statement on
    behalf of petitioner-husband has already been recorded and it is only at the stage of recording
    of second motion statement, the presence of petitioner-husband has been sought by the trial
    Court without recording any reason or satisfaction of the Court.
  3. In view of the above, the present petition is allowed and the condition of appearance of
    petitioner-husband in person as mentioned in impugned order dated 26.10.2016 is set aside.
    The trial Court is directed to allow the Special Power of Attorney Holder, namely, Sh. Bhagwan
    Singh to make second motion statement on behalf of the petitioner-husband on any date to be
    given by the trial Court.