HON’BLE SRI JUSTICE D.S.R. VARMA AND HON’BLE SRI JUSTICE B.N. RAO NALLA F.C.A.No.153 of 2010 ORAL JUDGMENT : (per Hon’ble Sri Justice D.S.R.Varma) Heard Sri C. Prakash Reddy, learned Senior Counsel, representing Sri A.Narasimha Reddy, learned counsel appearing for both the appellants, who are husband and wife. 2. This appeal is directed against the order and decree, dated 31.5.2010, in O.P.No.354 of 2009, passed by the Judge, Family Court, Ranga Reddy District at L.B. Nagar, Hyderabad, in dismissing O.P. filed by both the petitioners, who are husband and wife, under Section 13-B of the Hindu Marriage Act, 1955 (for brevity “the Act”) seeking divorce by dissolving the marriage between both the parties on mutual consent. 3. For the sake of convenience, in this judgment, both the appellants are referred to as “the husband” and “the wife”. 4. Initially, O.P.No.354 of 2009 was instituted by both the husband and the wife seeking divorce by mutual consent. However, as per order in I.A.No.929 of 2009 in S.R.No.1399 of 2009, dated 15.4.2009, which was filed under Rule 32 of Civil Rules of Practice, the husband was permitted to present and prosecute the O.P. through the G.P.A. holder Sri G.Amarnath Reddy, who is his maternal uncle, as he was residing in U.S.A. During the course of trial, an affidavit has been filed by both the parties and the same has been treated as an affidavit filed in lieu of examination-in-chief. However, the trial Court found that when once an affidavit in lieu of examination in chief has been filed by the party, the Court cannot insist for the presence of the said party, as the said affidavit is to be treated as an evidence on record. But, in matrimonial cases, the party alone has to file the affidavit, more particularly in proceedings under Section 13-B of the Act. The trial Court further found that if the affidavit filed by the G.P.A., representing the husband is accepted, it may lead to any amount of disputes and it is difficult to identify the parties and the same may lead to unhealthy practice. The trial Court also doubted that it was not known whether the husband was aware of the proceedings or whether he was still interested to have the divorce by mutual consent. 5. It appears that subsequently the husband himself filed an affidavit in lieu of examination-in-chief as P.W.1. From a perusal of the said affidavit, it is obvious that the said affidavit has been prepared in U.S.A., seeking to grant a decree of divorce by mutual consent and the same has been notarized. However, by the time the said affidavit has been filed into the Court, the trial Court appears to have dictated the final order in the O.P., but the same was not pronounced in the open Court. On that score, the trial Court did not accept the said affidavit of the husband and passed the impugned order, dated 31.5.2010, rejecting to grant divorce by mutual consent. Hence, the present appeal by both the parties. 6. The only point that falls for consideration in this appeal is as to whether the affidavit filed by the husband in lieu of examination in chief is to be accepted or not for the purpose of granting divorce by mutual consent as contemplated under Section 13-B of the Act. 7. In this regard, it is borne out from the record that the trial Court has originally granted permission to the G.P.A. holder to present and prosecute O.P.No.354 of 2009, which was filed by both the parties seeking divorce by mutual consent, however, signed by the G.P.A. holder representing the husband. When the trial Court permitted the G.P.A. holder to represent and prosecute the O.P. on behalf of the husband, I am of the considered view that there is no reason for the trial Court in not accepting the affidavit filed by the husband, which has been prepared and notarized in U.S.A. The trial Court has expressed its apprehension, may be, in a routine manner. Having regard to the facts and circumstances of the case, the trial Court has to necessarily look into the material on record, examine the same and express its satisfaction as to whether the affidavits filed by the parties or the G.P.A. holder, as the case may be, have to be accepted or not, and shall not reject the same as a matter of routine. Though the relief sought in the O.P. is for a decree of divorce by mutual consent, which is a sensitive issue to be decided by the Court, we are of the view that the trial Court shall not stick its guns and express its serious objection as regards the material filed in support of the relief sought in the O.P. and reject the relief sought in the O.P., when the other facts are glaringly sustainable, reasonable and also to the satisfaction of the Court. This mechanical approach adopted by the trial Court, in fact, would unnecessarily lead to prolongation of litigation, which is detrimental to the interest of both the spouses. 8. In this regard, Sri C.Prakash Reddy, learned Senior Counsel appearing for the parties, placed reliance on the judgment rendered by a Division Bench of this Court in Mrs. PADMAKIRAN RAO v. B. VENKATARAMANA RAO[1] wherein under similar circumstances, this Court allowed the appeal by setting aside the order of the lower Court and dissolved the marriage between the parties. 9. Further more, as could be seen from the material filed in support of the appeal, the husband had sent an e-mail, dated 27.4.2010, to Sri Sathyaveer Reddy, the learned counsel representing both the parties before the trial Court, informing him the compelling circumstances under which he could not come to Hyderabad to sign the documents as he became a citizen of U.S. and the issue of passport was pending by the date of sending the mail. The learned counsel has been further informed that a limited power of attorney was given to his maternal uncle Sri G.Amarnath Reddy and eventually requested him to see that appropriate orders are passed granting divorce without any further delay. 10. As already noticed, the O.P. was signed by both the parties and the affidavits were filed by both the husband and wife, duly attested. Of course, the affidavit filed by the husband was drafted and was duly notarized in U.S.A. In such event, there is absolutely no reason for the trial Court to disbelieve the contents of the said affidavit filed by the husband, particularly when the O.P. was filed by both the parties, and subject both the parties to the arduous legal procedure, which may consume lot of time and money and also cause lot of hardship to both the parties. 11. However, this Court, as a measure of caution, directed for the appearance of the wife before this Court and accordingly, the wife is present before this Court today. Upon being questioned, the wife stated in the open Court that she is well aware of the facts of the case both before the trial Court as well as before this Court. She categorically stated that both herself and her husband have decided to take divorce by mutual consent even in U.S.A. itself and consequent upon such decision, both of them have filed the O.P. before the trial Court seeking divorce by mutual consent. 12. In view of the said facts, we have absolutely no doubt that the trial Court was in error in not accepting the affidavit filed by the husband in lieu of examination in chief for the purpose of granting divorce by mutual consent as contemplated under Section 13-B of the Act. We only reiterate that justice shall not be delayed only on account of procedural lapses, particularly when the other circumstances are absolutely satisfactory. 13. In view of the said facts and following the principles laid down by a Division Bench of this Court in the judgment referred to supra, we are of the view that there are no circumstances, which are to be doubted seriously in order to delay the outcome of the O.P., though not denial of justice in the interest of both the parties. We are of the further view that the trial Court ought not have resorted to this kind of procedure and subject the parties to the arduous course of trial, particularly when everything is apparent. We make it clear that the said procedure can be adopted in other matters. But, in matrimonial proceedings, it is expedient to grant the relief as expeditiously as possible, basing on the over all facts and circumstances of the case that are on record. 14. In the result, the appeal is allowed, at the stage of admission, setting aside the order and decree, dated 31.5.2010, in O.P.No.354 of 2009, passed by the trial Court, and the marriage between both the parties is dissolved by mutual consent. 15. Registry is directed to draft a decree of divorce, dissolving the marriage between both the parties by mutual consent. There shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE B.N.RAO NALLA 05.07.2010 NOTE:- Issue C.C. as early as possible. (B/O) Msr HON’BLE SRI JUSTICE D.S.R. VARMA AND HON’BLE SRI JUSTICE B.N. RAO NALLA F.C.A.No.153 of 2010 05.07.2010 (Msr) [1] 1995 (3) ALD 341 (D.B.)