FAO No. M-309 of 2009 -1- In the High Court of Punjab & Haryana at Chandigarh FAO No. M-309 of 2009 (O&M) Date of decision : 2.3.2010 Navdeep Kaur ... Appellant vs Maninder Singh Ahluwalia .... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Rajeev Kumar Gupta, Advocate, for the appellant. Mr. Ashish Gupta, Advocate, for the respondent. Rajesh Bindal J. The appellant wife is before this court challenging the judgment and decree of the learned court below whereby the petition filed by the appellant and her husband/respondent under Section 13-B of the Hindu Marriage Act, 1955 (for short, “the Act”) for grant of divorce by way of mutual consent was dismissed. Briefly the facts are that the marriage of the appellant was solemnised with the respondent on 7.1.2007. Due to temperamental differences, the party could not pull on together. No child was born out of the wedlock. They are living separate since 8.4.2007. Immediately thereafter the husband went abroad and has not returned till date. The appellant also got registered FIR No. 216 dated 23.10.2008 against her husband and his family members under Section 406/498-A IPC at Police Station, Sector-31, Chandigarh. Thereafter, the matter was compromised between the parties on 3.1.2009. In terms of that both the parties agreed to dissolve the marriage by way of mutual consent. As permanent alimony, the appellant was to get Rs. 2,35,000/- from the respondent and the FIR got registered by the appellant, was to be withdrawn or got quashed by the appellant by getting her statement recorded. In terms of the compromise arrived at between the parties, a divorce petition was filed by them jointly on 6.1.2009. The husband being FAO No. M-309 of 2009 -2- abroad was represented by his father as attorney, whereas the appellant appeared in person. At the initial stage, the statement of the appellant was recorded and on behalf of the husband as attorney, his father got the statement recorded. Similar was the position on the second motion. The learned court below dismissed the petition on 8.8.2009 opining that the husband having not appeared in person divorce by mutual consent cannot be granted. It is against this judgment and decree that the appellant wife is before this court. Learned counsel for the appellant submitted that here is a case in which the appellant, who merely resided with the respondent for about three months after the marriage, has been left high and dry as the husband went abroad. Unless the divorce is granted, she cannot even remarry. Her life is being spoiled as at this age she can resettle in life, however, if the time passes there may be problems. He further submitted that opinion expressed by the learned court below to the extent that the parties are necessarily required to appear in person is totally erroneous. The attorney of the husband in the present case is none else then his father. Once the father of the husband is making the statement on his behalf, there was no question of disbelieving the same and not placing reliance thereon. All what the court is required is to see that the marriage between the parties was solemnised and further that the averments made in the petition are correct and the consent of either of the parties was not obtained by way of threat or coercion or fraud. There is no pleading in this regard herein. This cannot even be even alleged in the present case. Considering the fact that the appellant has appeared in person and on behalf of the husband, his father appeared as attorney and it is on account of the fact that husband is in abroad and is unable to come back even in near future, the petition for divorce by mutual consent deserved to be allowed. In support of his arguments, reliance was placed to Delhi High Court judgment in Neelima Chopra vs Anil Chopra 1987 (1) HLR 187 and Andhra Pradesh High Court judgment in Padmakiran Rao (Mrs.) vs B. Venkateramana Rao 1996 (2) HLR 271. Learned counsel for the respondent also supported the plea raised by the appellant while submitting that the husband in the present case does not have any objection to his father appearing as attorney on his FAO No. M-309 of 2009 -3- behalf. It has been agreed upon by him that he would be bound by all the actions of his father and the statement made by him in court for getting the decree of divorce by way of mutual consent. He further submitted that because of his engagements, the respondent is unable to come back to India in the near future and on that account the parties should not be made to suffer as there is no allegation of compromise between the parties being not bonafide. It was further submitted that even the amount settled between the parties has already been paid by the respondent to the appellant in terms of the compromise. It was further submitted that in terms of the compromise arrived at between the parties, a petition bearing Criminal Misc. No. M-12023 of 2009 titled as S. Dharam Singh and others vs State of UT, Chandigarh and another was filed by the accused seeking quashing of the FIR got registered by the appellant, which was to be quashed on recording of her statement. However, as the divorce by way of mutual consent was not granted, the aforesaid petition was got dismissed as withdrawn on 8.12.2009 with liberty to file a fresh one. Heard learned counsel for the parties and perused the paper- book. Section 13-B of the Act provides that subject to the provisions of the Act, a petition for dissolution of marriage by way of mutual consent may 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 have not been able to live together. Such a decree can be passed on being satisfied, after hearing the parties and making such inquiry as it thinks fit, that the marriage has been solemnised and the averments in the petition are true. It is a case in which the parties lived together only for a period of three months. After the marriage on 7.1.2007, the divorce petition by way of mutual consent was filed on 6.1.2009 meaning thereby that admittedly the parties were residing separately for the last more than one year at the time of presentation of petition. It is also not in dispute that the respondent husband had gone abroad and he had not come back since then. The petition was filed on behalf of the husband by his father as his attorney. Even on the first date of hearing, it is the joint statement of the father of the husband- FAO No. M-309 of 2009 -4- respondent, Dharam Singh which was recorded as his attorney and the appellant Navdeep Kaur. The same is extracted below:- “I, Dharam Singh, is the GPA of my son Mainder Singh Ahluwalia, vide GPA, the copy of which is Ex. PA (Original seen and returned). Our marriage of the parties was solemnised on 07-01-2007 at Chandigarh as per Sikh rites and ceremonies. On account of differences of temperament, it was not possible to live together as husband and wife and they are living separately since 08-04-2007. Out of this wed lock, no child was born. The matter was amicably settled between the parties and a compromise deed is Ex. PB and as per the compromise, petitioner no. 1 will pay a sum of Rs. 2,35,000/- to petitioner no. 2 and as per settlement, a Demand draft of Rs. 1,35,000/- No. 407218 dated 22.12.2008, drawn on SBOP, payable at Chandigarh, has been handed over to petitioner no. 2 and remaining amount of Rs. 1,00,000/- will be paid on the next date of hearing and petitioner no. 2 withdraw all the criminal cases filed by her against the petitioner no. 1 and his family and in future will not file any sort of litigation against them and will not claim any maintenance from petitioner no. 1 in future for herself. The contents mentioned in the petition are correct and are signed by us. The marriage may kindly be dissolved.” Similar was the position on the date when the petition was fixed for second motion. The joint statement of attorney of the respondent- husband and the appellant Navdeep Kaur got recorded on 8.8.2009, is extracted below:- “I, Dharam Singh, is the GPA of my son Mainder Singh Ahluwalia, vide GPA, the copy of which is Ex. PA (Original seen and returned). The marriage in between the parties was solemnised on 7-1-2007 at Chandigarh as per Sikh rites and ceremonies. On FAO No. M-309 of 2009 -5- account of differences of temperament, it was not possible to live together as husband and wife and they are living separately since 8-4-2007. Out of this wed lock, no child was born. The matter was amicably settled between the parties and a compromise deed is Ex. PB and as per the compromise. In view of earlier statement dated 6.1.2009, petitioner No. 1 is pay a demand draft no. 986350 dated 23.7.2009 drawn on State Bank of Patiala for a sum of Rs. 1.00 lac towards full and final settlement between the parties and hereafter nothing will be due to be recovered from petitioner No. 1 i.e. past, present and future maintenance etc. etc. Petitioner No. 2 undertakes to appear before the Hon'ble Punjab and Haryana High Corut on 18.9.2009 and will gave her statement that FIR registered against the petitioner No. 1 and his family members at PS 31, under Section 406, 498-A IPC shall be quashed. A decree of divorce by way of mutual consent be granted. Both the parties further undertake that they will be bound by their statement today suffered in the court.” In terms of the compromise, the respondent was to pay a sum of Rs. 2,35,000/- to the appellant at two stages i.e. Rs. 1,35,000/- at the time of presentation of petition under Section 13-B of the Act and Rs. 1 lac at the time of second motion. The aforesaid amount has been paid by the respondent through his father and accepted by the appellant. There is no allegation by either of the parties that consent of the parties for grant of divorce by way of mutual consent is not voluntary or there is any threat or coercion. The action of the attorney, the father of the husband-respondent, is acceptable to the respondent. The only ground on which the petition has been dismissed by the learned court below is that the respondent has not appeared in person in court. 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 FAO No. M-309 of 2009 -6- 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 ? Delhi High Court in Neelima Chopra's case (supra), 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 sub- section (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 solemnised 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 Annalie Prashad v. Romesh Proshad, AIR 1968 Calcutta 48. That undoubtedly was a case under the Special Marriage FAO No. M-309 of 2009 -7- Act but the provisions of the two Acts are similar. In that case also 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.” A Division Bench of Andhra Pradesh High Court in Padmakiran Rao (Mrs.)'s case while dealing with the similar issue held as under :- “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. 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 FAO No. M-309 of 2009 -8- 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 non- attendance 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.” This Court in Civil Revision No. 3648 of 2007 titled as Suraj Kumar Verma vs Gunita Verma decided on 15.10.2007, had set aside the order passed by the learned court below directing the parties to be present in person while permitting him to be represented by his attorney father considering the fact that the husband in that case was abroad and could not appear in person. 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. 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 ground of mutual consent, that such consent has not been obtained by force, fraud or undue influence. In the present case, it is not disputed that the father of the husband-respondent is holding a valid power of attorney executed by his son/ the husband to appear on his behalf and take all steps for filing a petition for divorce by mutual consent and getting the statements recorded on his behalf. The genuineness of the power of attorney has not been doubted. It has not been pointed out before me that the learned court below FAO No. M-309 of 2009 -9- had ever directed the respondent-husband to be present in person for being satisfied of the facts stated in the petition or the statement made by the father of the respondent as his attorney doubting the genuineness of the compromise or otherwise for any good reason. A perusal of the impugned judgment of the learned court below shows that the learned court below dismissed the petition on the ground that the parties had not appeared in person. It had not recorded any finding as regards the petition being not bonafide or that the averments made in the petition were not true and correct and further that the consent of either of the parties had been obtained by force, fraud or undue influence which was sine-qua-non for consideration of a petition for divorce by way of mutual consent. 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. 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 FAO No. M-309 of 2009 -10- 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 duly attested affidavit of the person, who is living abroad, filed containing his photograph . For the reasons stated above, the impugned judgment and decree of the learned court below is set aside. At this stage, this court had the option of passing a decree of divorce by way of mutual consent here itself, however, still as the provisions require that it has to be the satisfaction of the court regarding the contents of the petition filed for divorce by way of mutual consent and also that the consent of either of the parties had not been obtained by way of force, fraud or undue influence, in my opinion, in the present case where on account of unavoidable circumstances, the respondent-husband is unable to appear in person in court, such a satisfaction though is available in the form of statement of his attorney, who is none else than his father, however, still the same can be further cemented by getting a duly attested affidavit of the respondent having his photograph on record and endorsing that whatever actions have been taken by his father, as his attorney. The parties are directed to appear in person before the learned court below on 15.3.2010 for further proceedings, which shall be disposed of as expeditiously as possible. At the time of hearing of the appeal, the appellant also appeared before this court in person and got her statement recorded to the following effect:- “My marriage with Mainder Singh was solemnised on 7.1.2007. Due to temperamental differences, we are living separate since 8.4.2007. In fact, my husband had gone abroad and has not returned back. We have settled to part ways and a compromise was entered into between the parties on 3.1.2009, which was signed by the father of my husband as attorney on his behalf. In terms of the compromise, I have received total amount of Rs. 2,35,000/-. It was also FAO No. M-309 of 2009 -11- agreed upon in the compromise that I will raise no objection to the quashing of FIR No. 216 dated 23.10.2008 got registered by me under Sections 406/498-A IPC at Police Station, Sector 31, Chandigarh. My statement recorded in the present case will be sufficient for getting the aforesaid FIR quashed after a decree of divorce by way of mutual consent is passed by the court in my favour. There is no other dispute pending between the parties.” As far as FIR No. 216 dated 23.10.2008 got registered by the appellant under Sections 406/498-A IPC at Police Station, Sector 31, Chandigarh against his husband and his family members is concerned, as fairly stated by the appellant in terms of the compromise arrived at between the parties, she will have no objection to the quashing thereof on the basis of compromise. The statement got recorded by her in the present proceedings shall be sufficient and be read as her statement in those proceedings in a fresh petition to be filed by the respondent and his family members seeking quashing of the aforesaid FIR, on the basis of compromise. However, the same shall be effective after the decree of divorce has been passed by way of mutual consent. The appellant shall not be required to appear in person in the court in the petition seeking quashing of the FIR. The appeal is disposed of accordingly. 2.3.2010 ( Rajesh Bindal) vs. Judge (Refer to reporter)