How justice sometimes tends to subjugate itself to the procedural law will be demonstrated by the facts of the case which are to follow.
Heard Sri Pankaj Kumar Tiwari, learned counsel for the petitioner and Sri Vivek Kumar Rai, learned counsel for respondent no.2.
Marriage of the petitioner-husband with respondent no.2-wife is said to have been solemnized on 24.09.2012 in accordance with Hindu-Sikh rights, rituals and customs. However, it appears that some serious differences between the parties have resulted in institution of various cases by them against each other.
The instant petition arises out of an order dated 24.08.2015, passed by the Additional Principal Judge, Family Court, Lucknow whereby the application made by the petitioner under Section 126 (2) of Cr.P.C.for setting aside the alleged ex parte interim maintenance order passed under Section 125 Cr.P.C., has been rejected not on the merits of the application but on the ground of maintainability for the reason that this application was not presented by the petitioner himself; rather it was presented by his father in whose favour power of attorney was executed by the petitioner. The court below has observed in the impugned order that the application C-26,under Section 126 (2), Cr.P.C. was moved by the petitioner on 10.10.2013 stating therein that the order dated 29.05.2013 granting interim maintenance to the respondent no.2 was an ex parte order and as such the same may be set-aside. The court below has further observed that the petitioner never appeared in the court and the application has been moved by his father through power of attorney and hence, the application is not maintainable. In support of the reasons given in the impugned order, learned court below has cited judgment of Hon'ble Supreme Court in the case of T.C.Mathai and another vs. District and Sessions Judge, Thiruvananthapuram, Kerala (1999) 3 SCC 614. The learned court below has also relied upon yet another judgment of High Court of Bombay in the case of Parvin Niwritti Sawant vs. Nisha Parvin Sawant and another reported in 2007 (6) Maharashtra Law Journel 536. It has further been observed by the court below that the application C-26 was not presented by the petitioner by putting his appearance and further that affidavit filed in support of said application has also not been sworn in by the petitioner; rather the same has been sworn in by his father, the power of attorney and as such in view of provisions of Section 13 of Family Courts Act, 1984, application cannot be entertained. According to the impugned order, Section 13 of the Family Courts Act provides that the parties to any proceedings under the said provision shall be personally present before the Family Court, however in case the Family Court finds it appropriate, it may appoint an amicus to seek assistance of a legal expert. The court below also states that provision of Section 13 of Family Courts Act nowhere provides that in absence of the party concerned, any application can be moved by the power of attorney holder of the party. The court below, thus, has rejected the application moved by the petitioner for the reasons disclosed therein which have been discussed above.
During pendency of these proceedings before this Court, the parties have come to terms and now intend to settle the dispute outside the Court amongst themselves. A draft settlement agreement has also been prepared by the parties, a copy of which has been brought to the notice of the Court to be taken on record. The said draft settlement agreement has been signed by learned counsel appearing before this Court for the respective parties and is taken on record of this case.
Even after bearing all the good intentions of settling the dispute outside the Court amicably, the parties now find it difficult to get the matter settled for two reasons; (1) that the learned Family Court in view of provisions of Section 13 of Family Courts Act, would not permit the power of attorney of the petitioner to participate in the proceedings and file the pleadings etc. and (2) though the parties have agreed to settle their dispute by withdrawing the cases launched against each other and also by moving a petition under Section 13-B of Hindu Marriage Act,1955 for seeking divorce by mutual consent, such proceedings under Section 13-B of Hindu Marriage Act do not appear to be in sight for the reason that the court where these proceedings may be instituted in terms of the settlement agreement would still require the personal presence of the petitioner before it.
Drawing attention of the Court to the provisions contained in sub-section (2) of Section 13-B of Hindu Marriage Act, learned counsel for both the parties have submitted that ordinarily the Family Court grants such a petition moved under Section 13-B of Hindu Marriage Act seeking divorce by mutual consent only on being satisfied, that too after hearing the parties and after making such inquiry as it thinks fit, and for the purpose of making inquiry, the Family Court requires personal presence of both the parties seeking divorce by mutual consent before it.
Submission made by learned counsel for both the parties in the instant case is that on account of certain compelling reasons, it will be difficult and almost impossible for the petitioner to attend the proceedings, if they institute a petition under Section 13-B of Hindu Marriage Act for the reason that in connection with his employment the petitioner is presently living abroad i.e. in United States of America where he is working as Software Engineer in CISCO System Inc.3800 Zanker Road, Cisco Systems Building 2, IInd Floor, San Jose, CA, 95134 U.S.A. and is residing at 1550, Technology Drive, Unit San Jose, California 95110, USA. The petitioner has executed power of attorney and has appointed his father Sri Har Mandir Singh Sachdev as his attorney.
Faced with the rigours of the procedural law, both the parties in these proceedings have prayed that appropriate direction be issued to the court below for making all possible endeavours to give effect to the draft settlement agreement which inter alia requires filing of a petition under Section 13-B of Hindu Marriage Act seeking divorce by mutual consent.
This Court, considering the overall aspects of the matter, by means of the order dated 05.04.2016 required the petitioner to file fresh power of attorney which may be executed by him authorizing his father to act as his attorney.
Pursuant to the said order, an affidavit has been filed by father of the petitioner annexing therewith photocopy of the Special Power of Attorney executed by the petitioner on 11.04.2016 at United States of America before a notary public in California, Santa Clara County. The said Special Power of Attorney executed by the petitioner authorizes his father to do various acts including to defend matrimonial, claim case or any other case filed against the petitioner and also to file suit, appeal, written statements, objections etc. The said document further authorizes father of the petitioner to sign and verify plaint, written statements, affidavits and also to give evidence and further to appear and pursue all cases in suits and proceedings. It also authorizes father of the petitioner to carry on mediation/conciliation, compromise and also to withdraw the cases pending in various courts at Lucknow and Kanpur. Clause 7 of the said Special Power of Attorney dated 11.04.2016 in an unambiguous term authorizes father of the petitioner to file petition for divorce by mutual consent under Section 13-B of Hindu Marriage Act before the court concerned on his behalf.
Considering the facts of the case as mentioned above, the question which fall for consideration of this Court is as to whether this Court can direct the court below to entertain a petition under Section 13-B of Hindu Marriage Act for grant of divorce by mutual consent, in the event it is filed by the power of attorney holder of the petitioner on his behalf along with respondent no.2.
The stumbling block which appears in the way of amicable settlement between the parties in this case, who have already made up their mind to act upon the draft settlement agreement, can be found in Section 13-B of the Hindu Marriage Act. Section 13-B of Hindu Marriage Act provides that a petition for dissolution of marriage by a decree of divorce can be presented by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more and further that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. Section 13-B of Hindu Marriage Act runs as under:-
13-B. Divorce by mutual consent- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."
Sub-section (2) of Section 13-B of Hindu Marriage Act apparently is procedural in nature which provides that in case any such application by both the parties is made under Section 13-B (1) and the petition is not withdrawn not earlier than six months after the date of presentation of such petition and not later than 18 months after the said date, the Court shall pass a decree of divorce declaring the marriage to be dissolved. However, the court while passing such a decree has to be satisfied, after hearing the parties and after making such inquiry as it thinks fit, as to fact that marriage has been solemnized and that the averments in the petition for divorce by mutual consent are correct. To conduct the inquiry for the purposes of finding the averments made in the application to be correct, Section 13-B (2) provides that the parties are to be heard by the court.
The relevant phrase occurring in sub-section (2) of Section 13-B is 'after hearing the parties'. Since the provisions of Section 13-B relate to separation by divorce by mutual consent, as such in all such matters, ordinarily 'hearing the parties' would mean hearing the parties in person. In other words while making inquiry as contemplated in sub-section (2) of Section 13-B, the court concerned has to personally interact with the parties which makes it almost mandatory for the parties to be personally present before the Court.
However, in a situation, which has emerged in the present case, where the petitioner-husband is residing abroad i.e. in United States of America and both the parties have arrived at a settlement agreement, a draft of which has already been brought to the notice of the Court, insistence on the personal presence of the petitioner may not be required provided appropriate care and caution is taken by the court to verify the contents of the joint petition which may be presented.
The Hon'ble High Court of Punjab and Haryana dealing with a case, facts of which were almost identical to the facts of the present case, has delivered a judgment on 02.03.2010, Navdeep Kaur vs Maninder Singh Ahluwalia, reported in AIR 2010 P&H 90, wherein such an issue has been dealt with.
The issue posed by Hon'ble High Court of Punjab and Haryana for its consideration was as to whether it is mandatory for the parties to appear in person in Court at the time of filing of a petition for divorce by way of mutual consent and also at the time of second motion or the attorney can be authorized to appear.
The Hon'ble High Court of Punjab and Haryana in the case of Navdeep Kaur (supra) also considered the provision of Order III, CPC which deals appearances etc. by recognized agent or by pleader and came to the conclusion that in case the court does not doubt the genuineness of the contents stated in a joint petition for divorce by mutual consent and one of the parties are represented by an attorney, who is father of the party concerned, and thus, cannot be expected to act against the interest of his son, such a petition ought not be rejected merely on the ground that one of the parties does not appear in person. The Hon'ble High Court of Punjab and Haryana took into account the fact that paramount consideration is the correctness of contents of the petition filed and also to see that consent of the parties has not been obtained by force, fraud or undue influence. The Court has held that in absence of the parties where the attorney appears, the Courts have to be more cautions and vigilant in recording its satisfaction about the consent. Relevant paragraph of the aforesaid case is quoted below:-
"20. In view of the enunciation of law, as referred to above and also what is provided in Order 3 CPC, in my opinion, once the Court is not doubting the genuineness of the contents stated in the petition for divorce by way of mutual consent, and one of the parties are represented by an attorney, who is none else than the father of the respondent/ husband, who has fiduciary relations with the respondent/husband and cannot be expected to act against the interest of his son, such a petition cannot be rejected merely on the ground that one of the parties did not appear in person. The provisions of Section 13-B of the Act cannot be read to mean that personal appearance of the parties is mandatory. Procedural law is subservient to justice. Appearance of parties would include appearance through duly constituted attorneys. The paramount thing which is required to be considered by the learned Court below is the correctness of the contents of the petition filed and also to see that consent of either of the parties has not been obtained by way of force, fraud or undue influence. Parties are not required to be called in Court only to see their faces. However, in the absence of the parties, where the attorney appears, the Courts have to be more cautious and vigilant in recording its satisfaction about the consent in terms of the provisions of the Act. It may depend on the facts of a case, considering who is appearing as attorney."
In the aforesaid case of Navdeep Kaur (supra), the Hon'ble High Court of Punjab and Haryana has further observed that merely because one of the parties is unable to visit India, the other party cannot be left high and dry and that there are always ways and means by which the Court can record its satisfaction regarding authenticity of the contents of the application/petition moved for seeking decree of divorce by mutual consent. It has further been observed in the said judgment that in a given case the genuineness of the pleadings can be ascertained by getting a duly attested affidavit of the person who is living abroad which may be filed containing his photograph.
The Hon'ble High Court of Delhi in the case of Vinay Jude Dias vs. Renajeet Kaur, reported in AIR 2009 Delhi 70 has also had the occasion of confronting with such an issue. It has been observed by the Hon'ble High Court of Delhi that in case where the parties are living far away from the jurisdiction of the court which is competent to pass a decree declaring marriage to be dissolved, the parties after filing their affidavits can appoint attorneys to act on their behalf. The Court has also observed that in such a case attorney is competent to act on behalf of the principal on the basis of power of attorney executed. It has clearly been observed that the attorney can also act in matrimonial cases in terms of instructions issued by their principal. However, the Court has to take necessary precautions to prevent frauds being perpetuated but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of the attorneys. Relevant portion of said judgment is extracted hereinbelow:-
"8. Where the parties are living far away from the jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their principal in all other cases. The attorney can also act in matrimonial cases as per instructions of their principal. The Court can take necessary precautions to prevent frauds being perpetuated on it but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of the attorneys".
Recently a Full Bench of this Court in the case of Syed Wasif Husain Rizvi vs Hasan Raza Khan and six others in Writ Petition No.534 (Consolidation) of 2002 has dealt with the issue relating to attorneys at some length. After elucidating the meaning of power of attorney, the Court taking into account the provisions of Allahabad High Court Rules and the provisions contained in Code of Civil Procedure, particularly those contained in Order III thereof, has inter alia observed that it is evident from the provisions of Order III Rule 1 of CPC that an appearance, application or act in or to any Court which is required to be made or done by a party in the Court can be effectively made or done by the party in person or by a recognized agent.
Citing various precedents and elaborately discussing the law, the Full Bench has held that the proceedings of a petition under Article 226 of the Constitution of India can be instituted by a person through his power of attorney holder. However, while holding so, the Full Bench has observed and emphasized necessity of taking adequate safeguards in case some proceedings are permitted to be filed or carried on through the holder of a power of attorney. The safeguards as pointed out by Full Bench of this Court in the case of Syed Wasif Husain Rizvi (supra) are that:- (1) The power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/application; (2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and will specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and (3) The donee must be confined to those acts which he is authorised by the power of attorney to discharge.
Thus, from the authorities as discussed above and also taking into account the facts and circumstances which the instant case has presented, I find it appropriate to dispose of this petition with the following observations and directions:-
1. In case a petition under Section 13-B of Hindu Marriage Act for divorce by mutual consent is presented by the petitioner and the respondent no.2, then pleading of such petition may be permitted to be signed and verified by the holder of power of attorney of the petitioner in terms of the Special Power of Attorney executed by the petitioner on 11.04.2016 before notary public in California, Santa Clara County.
2. Along with the petition to be presented under Section 13-B of Hindu Marriage Act, a draft settlement agreement, which is a part of record of this case before this Court and has duly been signed by learned counsel for parties before this Court will also be annexed.
3. That for verifying and attesting the contents of the joint petition which may be presented under Section 13-B of Hindu Marriage Act by the parties, an affidavit of the petitioner shall also be required to be filed which can be sworn in before the notary public or before any other lawful authority in United States of America where the petitioner is presently living. The said affidavit shall also contain duly self-attested photograph of the petitioner.
4. On presentation of the joint petition seeking divorce by mutual consent under Section 13-B of Hindu Marriage Act, the learned court below will proceed with the said application in accordance with law after permitting the power of attorney authorized by the petitioner to appear before it. The Court will also make such inquiries as are deemed fit in respect of the averments made in the petition for divorce by mutual consent and it is only on being satisfied that contents of the petition are true, the court will proceed to pass appropriate orders.
5. However, it is made clear that in case at any stage of the proceedings of Section 13-B of Hindu Marriage Act, if instituted, the court below finds any doubt about the averments made in the petition, it would be lawful for the Court to summon the petitioner for his personal appearance.
In the aforesaid terms, the petition shall stand disposed of.
Costs made easy.
Order Date :- 2.5.2016 Renu/