1. In their third innings before this Court, the petitioners: Navneet Kaur (wife) and Kanwaljeet Sachdev (husband), have jointly assailed the order dated 19.07.2016 passed by the Family Court, Lucknow whereby the petitioners have been directed to appear before the Family Court in person for making a joint motion in terms of sub-section (2) of Section 13-B of the Hindu Marriage Act, 1956 (for short 'Act') to obtain divorce by mutual consent.
2. The petitioners got married on 24.09.2012 in accordance with Hindu-Sikh rites, rituals and customs in Kanpur. At the time of marriage, Kanwaljeet Sachdev, a Software Engineer, was working and residing at San Jose, California (USA). For a brief period after marriage, the petitioners stayed together in Kanpur. On 18.12.2012, Navneet Kaur-the wife went to USA to live with her husband. Unfortunately, within a month, serious differences surfaced between the petitioners to such an extent that it became impossible for them to live together and ultimately, on 18.01.2013, the wife returned to India, never to go back to her husband again. The differences between the petitioners led to the filing of a large number of cases, both civil and criminal against each other.
3. On 29.05.2013, in Criminal Case No. 436 of 2013, the Additional Principal Judge, Family Court, Lucknow passed an ex-parte order under Section 125 Cr.P.C. granting interim maintenance to the wife. The application for setting aside the order dated 29.05.2013 moved by the husband (represented by Har Mandir Singh Sachdev, his father as well as his attorney holder) was rejected by the Family Court on 28.04.2015 on the ground that it was not moved by the husband himself.
4. The order dated 28.04.2015 was assailed by the husband (represented by his attorney holder Har Mandir Singh Sachdev) before this Court in Writ Petition No. 6148 (M/S) of 2015, Kanwaljeet Sachdev v. State of U.P. & Ors. During the pendency of the writ petition the petitioners resolved to settle their dispute amicably outside the Court. They also placed before this Court a draft settlement agreement. The petitioners, however, expressed their apprehension that in case they jointly filed a petition for mutual divorce, the Family Court may not entertain the petition unless the husband presented himself before the Court. On the apprehension so expressed, a learned Single Judge of this Court directed the husband to execute a fresh power of attorney in favour of his father.
5. On 02.05.2016, after a fresh power of attorney executed by the husband on 11.04.2016 before a notary public in California, Santa Clara County, USA in favour of his father was brought on record, the said writ petition was finally disposed of by this Court with liberty to the petitioners to move a joint petition for mutual divorce under Section 13-B of the Act, annexing therewith a draft settlement agreement filed by them before this Court. On behalf of the husband, his attorney-holder was permitted to sign and verify the pleadings of such petition in terms of the special power of attorney dated 11.04.2016 mentioned above. The husband was further directed to file an affidavit sworn before the notary public or before any other lawful authority in USA, where he was residing, containing his self attested photograph and verifying and attesting the contents of the joint petition. The attorney-holder of the husband was permitted to appear before the Court on his behalf. The Court below was directed to pass appropriate orders in the matter after verifying the veracity of the averments made in the petition. It was, however, left open to the Court below to ask for the personal appearance of the husband in case it had any doubt regarding the averments made in the petition.
6. On 05.05.2016, a joint petition under Section 13-B of the Act seeking mutual divorce was filed by the husband and wife before the Family Court, Lucknow in terms of the order dated 02.05.2016 passed by this Court. On 16.05.2016, the Principal Judge, Family Court, Lucknow before whom the case came up for admission, found that the documents filed by the petitioners along with the petition were not in accordance with the order dated 02.05.2016 passed by this Court. The Principal Judge, instead of permitting the petitioners to make good the deficiency, mechanically directed the parties to appear in person on the next date fixed.
7. This compelled the petitioners to approach this Court for the second time by filing Writ Petition No.14624 (M/S) of 2016. On 23.06.2016, the said petition was disposed of by this Court with liberty to the husband to file another affidavit in terms of the order dated 02.05.2016 passed by this Court earlier. On the affidavit being so filed, the Principal Judge, Family Court was directed to admit the petition without requiring the parties to appear in person. It was reiterated that if during the proceedings the Family Court finds it proper to take the statement of the parties or verify the contents of the petition for divorce, it would be open for it to summon the husband to appear in person.
8. On 19.07.2016, after the petitioners removed the deficiency, the Principal Judge, Family Court, Lucknow passed an order, whereby the petition for divorce moved by the petitioners was ordered to be registered. Thereafter, in the teeth of the orders dated 02.05.2016 and 23.06.2016 of this Court, the Principal Judge proceeded in a mechanical manner, and directed the parties to appear in person on the date fixed for evidence. The order needs to be quoted:-
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9. The order dated 19.07.2016, to the extent it directs the parties to appear in person on the date fixed for evidence, has been challenged by both the husband and the wife jointly.
10. Heard the learned counsel for the parties and perused the record.
11. Section 13-B was not there in the original Act. It was introduced by the Amending Act No. 68 of 1976. Section 13-B reads as under:-
"13-B Divorce by mutual consent.-(1) Subject to the provisions of the 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that (1) they have been living separately for a period of one year or more, (2) that they have not been able to live together and (3) 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, (1) that a marriage has been solemnized and that (2) 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."
12. It is also necessary to read Section 23(1)(bb):-
"23. Decree in proceedings-(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
[(bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]......"
13. The three ingredients for initiating proceedings under Section 13-B of the Act for divorce by mutual consent are: firstly, that the parties to the marriage have been living separately for a minimum period of one year. Secondly, they have not been able to live together, and thirdly, they have mutually agreed that marriage should be dissolved.
14. As per Section 13-B of the Act, a petition for divorce by mutual consent must be presented to the Court jointly by both the parties. Similarly, the second motion before the Court for hearing of the petition should also be by both the parties.
15. A conjoint reading of Section 13-B and 23(1) of the Act would show that the second motion enables the Court to proceed with the case, in order to satisfy itself about the genuineness of the averments in the petition and also to confirm that the consent has not been obtained by force, fraud or undue influence. For the purpose of examining the veracity of the averments made in the petition, it is open to the Court to make such inquiry as it thinks fit including hearing or examination of the parties. If the court is satisfied that the consent of the parties was not obtained by force, fraud or undue influence and they mutually agree that the marriage should be dissolved, the Court is left with no other option but to pass a decree of divorce.
16. The question involved in this petition is as to whether at the time of second motion under Section 13-B(2) of the Act, the personal presence of the parties is necessary in order to enable them to obtain a decree of divorce by mutual consent.
17. As of now, there is no authoritative pronouncement by the Apex Court on this point. At least the learned counsel for the petitioners has not placed any such authority before this Court. However, various High Courts, along the length and breadth of the country have spoken in one voice. At this stage, it would be apposite to take note of the views expressed by the various High Courts.
18. A Division Bench of the Calcatta High Court in Annalie Prashad v. Romesh Proshad, AIR 1968 Calcutta 48, while setting aside an order passed by the trial Court by which it had refused to allow one of the parties to give evidence by affidavit in a proceeding for mutual divorce under Section 28 of the Special Marriage Act, 1954, which is in pari materia with Section 13-B of the Act, held that the words "hearing the parties" in the said Section did not mean that the parties should personally appear or be present before the Court. Paragraph 4 of the report is extracted below:
"4. .... The Special Marriage Act by Section 40 attracts the Code of Civil Procedure subject, of course, to the other provisions of the said statute and to such rules as the High Court may make in that behalf. The learned trial Judge does not say that there is anything in the statute or in the rules, which would conflict with the view that affidavit evidence would be permissible, unless we agree with him that the Act, having prescribed that the parties should be heard, would necessarily require their personal appearance or presence before the Court. We do not, however think that is the consequence of the words "hearing the parties" and, accordingly, the reason given by the learned trial Judge in that behalf cannot be accepted. We are also unable to agree that, in a case of divorce by mutual consent, affidavit evidence should be excluded on the ground that in such a case, it is desirable that the parties themselves should be present in Court. In the premises, Order 19 of the Code of Civil Procedure would be attracted by the above special statute as part of the Code and would not be excluded either expressly or by necessary implication."
(emphasis supplied)
19. The Delhi High Court in Mrs. Neelima Chopra v. Anil Chopra, 1986 (11) DRJ 188, has held that for the purpose of the inquiry under Section 13-B(2) of the Act, personal presence of the parties was not necessary. Paragraph 8 (relevant portion) and paragraph 9 of the said report are reproduced below:-
"8.....As I read it, if the conditions mentioned in Section 13B are satisfied then the Court has no option but to grant a decree for divorce. It is no doubt true that Sub-section (2) of Section 13B 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 court 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.
(9) 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 some one to make a statement testifying to the correctness of the contents of the petition. If 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."
(emphasis supplied)
20. A Division Bench of the Andhra Pradesh High Court in Mrs. Padmakiran Rao v. Mr. B. Venkateramana Rao, 1995 SCC OnLine AP 313, had the opportunity to deal with a situation identical to the present case. In the said matter, at the stage of second motion under Section 13(B) of the Act, the wife appeared before the concerned court and reiterated her desire to get divorce. However, the husband, who was residing in the United States of America, was unable to appear in person. Instead, an affidavit was filed on his behalf. The Subordinate Judge rejected the said affidavit and insisted upon the personal appearance of the husband. In a challenge against this order of the Subordinate Judge, the Division Bench held as under:-
"2. Relying on the wording- "after hearing the parties" in sub-section (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 affidavit will not be a substitute for that requirement.
3. 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 C.P.C. 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."
(emphasis supplied)
21. The Delhi High Court in Vinay Jude Dias v. Ms. Ranjeet Kaur, AIR 2009 Delhi 70, a case of divorce with mutual consent under Section 10-A of the Divorce Act, held that the attorney was not an incompetent witness. In the said case, the Court permitted the special power of attorney holder of the husband to appear and depose as a witness in respect of facts which were in his knowledge. Paragraphs 5 and 8 of the said report are reproduced below:-
"5. There can be no dispute that the attorney of the petitioner can appear in the Court on behalf of the party and do the act, as specified in power of attorney. An attorney is not an incompetent witness. He can appear in the Court and depose in the Court as a witness in respect of facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal. Whether the parties were married on a particular day, is not a private act of the parties. Marriage is normally a public act in this country and evidence can be given by any-one who has knowledge of the fact. Whether the parties are living separate or not is also known to other people associated with the parties and is not something secret. Similarly, for how long parties were living separate can be deposed in the Court by any person who is aware of the facts. If an attorney aware of these facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness or his statement would not be recorded. Similarly an attorney, on the basis of instructions/directions given to him, can answer the queries, if there was any possibility of parties patching up and living together or the marriage has broken down irretrievably. An attorney has to be allowed to appear in the witness box and make statement. The Court may reject that part of his statement which is based on hearsay or which he has no personal knowledge. But he cannot be prevented from appearing in the witness box and deposing and answering the queries.
and then
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."
(emphasis supplied)
22. The Punjab & Haryana High Court in Navdeep Kaur v. Manindar Singh Ahluwalia, AIR 2010 P&H 90, held that in proceedings under Section 13-B of the Act, the personal appearance of the parties was not mandatory and it is open to the parties to enter appearance through duly constituted attorneys. Paragraphs 20 and 21 of the said report are reproduced 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.
21. Even though the dispute between the parties may have been settled amicably in terms of which they agreed to part way peacefully. Merely because one of the parties is unable to visit India on account of certain unavoidable circumstances, the other party cannot be left high and dry and there are always ways and means by which the Court can record its satisfaction regarding genuineness of the pleadings and the proceedings before the Court in the presence of the attorney. In a given case, same can be, by way of getting a duty attested affidavit of the person, who if is living abroad, filed containing his photograph."
(emphasis supplied)
23. The Telangana High Court in Dasam Vijay Rama Rao v. M. Sai Sri, AIR 2015 AP 191, a case of divorce by mutual consent, permitted the husband, who was unable to appear before the Court, to file his evidence by way of an affidavit. Para 30 of the said report is reproduced as under:-
"30. I am, therefore, of the opinion that the Family Courts are entitled to ascertain the views of the parties and for that purpose adjourning a case by a reasonable period is not to be frowned upon. But, however, if one of the parties, like in the present case, appears before the Family court and expresses no objection for an affidavit of the other party to be taken on record and is not desirous of cross examining the deponent of the affidavit, the Family Court can entertain, unhesitatingly any such move/application."
24. From the above discussion, it can be safely inferred that at the stage of second motion, the court has to satisfy itself that the marriage has been solemnized and that the averments made in the petition are true. As opined by multiple High Courts across the country, in order to arrive at such a satisfaction, it is not necessary for the parties to appear in person. The satisfaction can be arrived at by requiring the parties to file affidavits or permitting the power of attorney holder to make a statement testifying the correctness of the contents of the petition. It is fairly well settled that the attorney can also act in matrimonial cases as per the instructions of their principals. The court can take necessary precautions to ensure that no fraud is being perpetuated, but unless the court smells some kind of fraud being played with it, it should normally recognize the act of the attorneys.
25. In the case at hand, the petitioners got married on 24.09.2012. They lived together only for a period of three and a half months. In terms of the compromise arrived at between the petitioners, a divorce petition was filed by them jointly on 05.05.2016. The husband being abroad was represented by his father as attorney in terms of the special power of attorney dated 11.04.2016, whereas the wife appeared in person. The draft settlement agreement which was placed before this Court in the earlier round of litigation was also annexed along with the joint petition. An affidavit of the husband sworn in USA, containing his attested photograph, verifying and attesting the contents of the joint petition was also filed along with the petition. The marriage card and marriage registration certificate of the petitioners are already on record and as such the fact that the marriage between the parties has been solemnized cannot be doubted. The petitioners have amicably resolved their dispute outside the Court and have executed a settlement agreement which was placed before this Court, which has also been filed along with the joint petition. A large number of civil and criminal cases filed by the husband and wife against each other have been withdrawn. The petitioners have already exchanged/ returned the articles, gifts, ornaments and nothing remains to be claimed any more in any way. The one time alimony to the tune of U.S. Dollar 13,400/- only (U.S. Dollar Thirteen Thousand Four Hundred only), equivalent to INR 9 Lacs (approximately) has been deposited by the husband before the Family Court through a cashier's cheque bearing no. 0046603099 dated 03.03.2016 in the name of Principal Judge, Family Court, Lucknow. The said amount is to be released in favour of the wife at the time of passing of the decree of divorce.
26. In pursuance of the order dated 09.03.2017 passed by this Court, the wife, Smt. Navneet Kaur, appeared before this Court on 24.03.2017 and also filed a supplementary affidavit. She is an educated lady and is presently working as Consultant in Capgemini Bangalore, Ecospace, Bellandur, Bengaluru, Karnataka. Sri Harmandir Singh Sachdev, the power of attorney holder of the husband Sri Kanwaljeet Sachdev, was also present. Smt. Navneet Kaur reiterated her desire to get divorce. In the supplementary affidavit filed by her, she has reiterated the contents of the joint petition. Smt. Navneet Kaur, the wife, and Sri Harmandir Singh Sachdev, the power of attorney holder of her husband Sri Kanwaljeet Sachdev, have reiterated the contents of the joint petition and jointly stated that the petitioners had voluntarily filed the petition for mutual divorce. Thus, there is no allegation by either of the parties that the consent of the parties for grant of divorce by way of mutual consent is not voluntary or that there is any trace of threat or coercion.
27. The marriage between the petitioners has irretrievably broken down and the efforts to reconcile the marriage have failed. The petitioners have amicably settled their dispute outside the Court. The husband is working and residing in the United States of America. Just because he is unable to visit India on account of his preoccupation, the wife cannot be made to suffer and be deprived of the chance to resettle in life.
28. The petitioners are young in age and with every passing day the problems are bound to increase. It is, thus, necessary in the interest of both that the divorce is granted expeditiously.
29. For the aforesaid reasons, this petition is allowed. The order dated 19.07.2016, to the extent it directs the parties to appear in person, is set aside. The Family Court is directed to dispose of the matter in the light of the observations made in this order within two months from the date a certified copy of this order is placed before it, without insisting on the personal presence of any of the parties.
30. There will be no order as to costs.
Order Date :- 31.05.2018 Anupam-Pradeep/-