Bombay HC sets aside family court order: ‘For mutual consent divorce, petition can be filed through Power of Attorney’

The court had said that the Allahabad High Court judgment, on which the petitioners relied their facts, are different from the present case.

Bombay High Court. (Express Archive)

SETTING ASIDE a family court order, the Bombay High Court Friday held that parties need not be present themselves while filing a divorce by mutual consent and “there is no legal lacunae in filing of the petition through a registered Power of Attorney (PoA)”. “In the light of 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,” said Justice Bharati H Dangre.

The wife in the case filed a petition, seeking dissolution of marriage by mutual consent, before the family court. The petition said the husband and wife were residing separately for more than a year before filing the divorce and despite reconciliation attempts, the marriage has failed. So, they have decided to dissolve the marriage legally through divorce by mutual consent.

The husband and wife jointly filed for divorce on December 22, 2017 before the family court in Pune. The petition was signed by the husband and on behalf of wife, by her father, who is also a Power of Attorney holder.

The family court, in its order, had said the petition cannot be registered. The court had said that the Allahabad High Court judgment, on which the petitioners relied their facts, are different from the present case. The wife then moved the High Court, challenging the order of the family court.

Advocate Samir Vaidya, appearing for the wife, told the court that the petitioner was employed in the US and was not in a position to attend the court proceedings. She was not able to remain present at the time of filing of the petition due to the employment rules and regulations prevailing in the US. Vaidya told the court that “this fact has been ignored by the family court”.

Justice Dangre observed that the order passed the family court “failed to apply any legal provision to the facts in hand” and “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”.

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