FAO No. M-40 of 2010 -1- In the High Court of Punjab & Haryana at Chandigarh Date of decision : 18.3.2010 1. FAO No. M-40 of 2010 (O&M) Smt. Anshu Rani ... Appellant vs Rohit Vij .... Respondent 2. FAO No. M-58 of 2010 (O&M) Rohit Vij ... Appellant vs Anshu Rani .... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Paramjit Singh Jammu, Advocate, for Smt. Anshu. Mr. R. K. Handa, Advocate, for Rohit Vij. Rajesh Bindal J. This order will dispose of aforementioned two appeals. The same have been filed by the wife and husband aggrieved against the same order of the learned court below whereby the petition filed by them for grant of decree of divorce by way of mutual consent under Section 13-B of the Hindu Marriage Act, 1955 (for short, “the Act”), was dismissed. Briefly, the facts are that the marriage of the parties was solemnised on 24.2.2008 at Ludhiana according to Hindu rites and ceremonies. Due to temperamental differences, the parties could not pull on together. They lived together only for a period of 15 days after the marriage and since then they are living separate. All efforts to resettle remained futile and ultimately with the intervention of the elders and well wishers, it was decided that there was no reason to prolong the agony of the parties and they should respectfully part ways. In view of the decision, a petition under Section 13-B of the Act was filed. On 21.3.2009 statement of both the parties was recorded. The case was thereafter adjourned for 23.9.2009 after the statutory period of six months. On subsequent adjourned date on account of non-appearance of the husband in person, the petition was dismissed. It is this order of the learned court below which is impugned in FAO No. M-40 of 2010 -2- the present appeal. Learned counsel for the parties submitted that all the disputes between the parties stood settled. After the marriage, the parties lived together only for a period of 15 days. As they could not settle in life and are at the young age, it was decided between them to get separated without levelling any allegations against each other, by way of a decree of divorce by mutual consent. The husband appeared when the petition was taken up for the first time and got his statement recorded and subsequently he could not appear for the reason that he had gone abroad for further studies and it was difficult for him to get leave. His father had appeared and filed his affidavit. The same should have been considered enough for passing the decree of divorce. However, still the learned court below dismissed the petition. It was prayed that the impugned order be set aside and a decree of divorce by mutual consent be passed. Heard learned counsel for the parties and perused the paper- book. When the petition was filed, joint statement of both the parties was recorded on 21.3.2009, which is as under:- “We were married to each according to Hindu rites and ceremonies on 24.2.2008 at Ludhiana (Punjab). However, petitioner No. 1 is presently residing at House No. 813 Mohalla Dhobianwala, Sirsa. After our marriage, we lived together only for about 15 days. Thereafter, petitioner No. 1 came to her parental home on 10.3.2008 and since then is living with her parents at Sirsa. During the said period of 15 days alone, we could not adjust with each other due to our temperamental differences. It was only because of the said reason that petitioner No. 1 had left the matrimonial house. Since, 10.3.2008, the petitioner No. 1 is living separately from the petitioner No. 2 and we have no (sic) cohabited with each other as husband and wife thereafter. Our future will be safe only if we part our ways amicably by getting the marriage in question dissolved by a decree of divorce by mutual consent. This has also been decided by our elders and other in the FAO No. M-40 of 2010 -3- relations. There is no legal ground to deny us the relief claimed for. We have not filed the instant petition in collusion with each other. We may be granted the said relief. Anshu Rani Rohit Petitioner No. 1 Petitioner No. 2 Sd/- R. C. Dimri, Addl. District Judge, Sirsa 21.3.2009.” On the subsequent date the husband could not appear and his father appeared in court to represent him. He submitted that his son had gone abroad for further studies and it will not be possible for him to appear in court in person. However, he filed his affidavit stating that his son has no objection if the divorce is granted but still the learned court below dismissed the petition opining that the parties were required to appear in person. The stand taken by the father of the husband was that after the filing of the petition and recording of the statement at the first motion, the petition was fixed for 23.9.2009, however, the husband got study visa from England on 6.9.2009 in terms of which he had to attend the classes within one week and for that reason he could not appear in court subsequently. It is for this reason that his father appeared in court and filed his affidavit. The opinion of the learned court below is that the parties are required to appear in person and they having not appeared, divorce by mutual consent cannot be granted. The issue as to whether the parties are required to appear in person in court or they can be represented by some attorney is no more res integra. This court while deciding FAO No. M-309 of 2009 – Navdeep Kaur vs Maninder Singh Ahluwalia on 2.3.2010 considered the issue in detail. The relevant paras therefrom are as under:- “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 FAO No. M-40 of 2010 -4- 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 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.” FAO No. M-40 of 2010 -5- 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 may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of FAO No. M-40 of 2010 -6- 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. FAO No. M-40 of 2010 -7- The genuineness of the power of attorney has not been doubted. It has not been pointed out before me that the learned court below 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 FAO No. M-40 of 2010 -8- 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 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 FAO No. M-40 of 2010 -9- endorsing that whatever actions have been taken by his father, as his attorney.” What has been opined by this court in the aforesaid judgment is that the presence of the parties is not mandatory in proceedings for divorce by mutual consent. In case the parties are represented through power of attorney holder who is none else than a close family member the satisfaction regarding genuineness of the pleadings and proceedings and also that the consent of the parties is not by way of force, fraud or undue influence can still be recorded considering the circumstances of the case and the material produced on record. 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 bonafides or the consent. In the present case the husband had appeared in court at the time of first motion and got his statement recorded, however, it was only at the time of second motion that he could not appear for the reasons beyond his control. His father is appearing as his attorney. As was opined in the Navdeep Kaur's case (supra), the court can still ask the attorney to furnish duly attested affidavit of the husband containing his photograph. Considering the enunciation of law, as referred to above, in my opinion, the reason on account of which the learned court below had dismissed the petition for divorce by mutual consent cannot be upheld. Accordingly, the same is set aside. The parties through their counsels are directed to appear in person before the learned court below on 3.4.2010, who will proceed further with the matter in accordance with law. The appeals are disposed of accordingly. 18.3.2010 ( Rajesh Bindal) vs. Judge