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IN THE HIGH COURT OF KERALA
KURIAN JOSEPH, T.R. RAMACHANDRAN NAIR, JJ.
Rekharani - Appellant
Vs.
Prabhu - Respondent
Mat. A. No.87 of 2007
Decided On : 04-07-2007
Hindu Marriage Act ,1955 -Section. 13 - Whether a power of attorney holder is entitled to present a petition for dissolution of marriage by a decree of divorce by mutual consent under S.13B of the Hindu Marriage Act, 1955 is the interesting question arising for consideration in this case -Appellant filed O.P.(HMA) No.1470/04 before the Family Court, Thiruvananthapuram seeking a decree of divorce under S.13(1)(i) and (ia) of the Hindu Marriage Act -Held, Division Bench of this Court in Ummer Farooque v. Naseema on a question as to which sect a party to a marriage belongs to, held that "Power of Attorney can give evidence only in respect of acts done by him in the exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter principal alone can have personal knowledge -appeal is allowed.
Certainly. Based on the provided legal document, here are the key points:
The case involves the question of whether a power of attorney holder is entitled to present a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (!) (!) .
The marriage between the appellant and respondent was solemnized on 29/10/2001. The appellant filed a petition for divorce on grounds of illicit relationship and cruelty, which was later dismissed as not pressed (!) .
The appellant executed a power of attorney appointing her father to prosecute the case before the Family Court (!) .
Subsequently, a joint petition for divorce by mutual consent was filed, with the appellant represented through her power of attorney and the respondent appearing in person. The Family Court passed a decree dissolving the marriage based on statements recorded from the appellant’s father (power of attorney holder) and the respondent (!) .
The Family Court's decision was based on the statements indicating that the marriage was irretrievably broken, with no chance of reconciliation, and that all financial matters had been settled (!) .
The appellant contended that she did not give her consent for the divorce and argued procedural requirements were not satisfied, leading to the appeal (!) .
The legal provisions specify that a petition for divorce by mutual consent must be presented by both parties themselves, and the Court's satisfaction depends on evidence that the parties have been living separately for at least one year and have mutually agreed to dissolve the marriage (!) (!) (!) .
Evidence in such cases must be based on personal knowledge of the parties, and evidence tendered through a power of attorney holder is generally not permissible for matters requiring personal knowledge, such as mutual consent and emotional incompatibility (!) .
The Court emphasized that the petition must be filed by the parties themselves, and if during the period after filing, the parties meet and resume cohabitation, the Court may lack jurisdiction to grant the divorce. The Court must be satisfied that the essential conditions for mutual consent are maintained at the time of the petition and during the inquiry (!) .
The Court found that the Family Court's approach was erroneous because the evidence presented through the power of attorney was not sufficient to establish mutual consent, especially given the appellant’s own statement about meeting the respondent during the proceedings (!) .
As a result, the judgment of the Family Court was set aside, and the appeal was allowed, reaffirming that the proper procedure requires the parties themselves to present and substantiate the petition for divorce by mutual consent (!) .
Please let me know if you need further analysis or specific legal advice related to this case.
Kurian Joseph, J.
Whether a power of attorney holder is entitled to present a petition for dissolution of marriage by a decree of divorce by mutual consent under S.13B of the Hindu Marriage Act, 1955 is the interesting question arising for consideration in this case. The marriage between the appellant and the respondent was duly solemnized on 29/10/2001. After three years, on the grounds of illicit relationship with another person, and cruelty, the appellant filed O.P.(HMA) No.1470/04 before the Family Court, Thiruvananthapuram (later transferred to the Family Court, Nedumangad) seeking a decree of divorce under S.13(1)(i) and (ia) of the Hindu Marriage Act. In the meanwhile, the appellant left for Gulf. However, she executed a power of attorney, appointing her father as the power of attorney holder to prosecute the case before the Family Court. According to the appellant, O.P.(HMA) No.1470/04 was got dismissed as not pressed on 17-12-2005 and on the same day, a joint petition for dissolution of marriage by mutual consent was filed under S.13B of the Act. The appellant was represented through the power of attorney holder and the respondent appeared in person. The Family Court took the statements of the appellant's father, the donee of power of attorney, and the respondent-husband on the same day and by order dated 20/12/2005, a decree was passed dissolving the marriage by a decree of divorce by mutual consent. At the risk of redundancy of the factual matrix, in order to appreciate the stand taken by the Family Court, it is necessary to extract two paragraphs from the judgment under appeal, which read as follows:
“4. The statements of both the Power of Attorney Holder of the 1st petitioner and the 2nd petitioner were recorded. Their statements show that petitioners 1 and 2 got legally married on 29-10-2001 and thereafter they resided together as husband and wife and that due to incompatibility of temperaments they are residing separately from 16/07/2004 onwards. The statements also show that the petitioners have decided to dissolve their marriage by mutual consent and that their decision is not vitiated by fraud, collusion, undue influence or misrepresentation. It is also clear that the marital tie is irretrievably broken and it is practically and emotionally dead and that there is no chance for any reunion. Hence the statutory requirement of waiting for a period of 6 months is waived. No children were born in the wedlock. All financial matters between the parties are settled.
5. The marriage has been broken down and the parties can no longer live together as husband and wife. In the circumstances the life of the spouses shall not be allowed to put in perpetual agony and despair. Hence it may be better to bring the marriage to an end. Therefore, the O.P. is allowed.” (emphasis supplied)
2. According to the appellant-wife, she met the respondent on several occasions at Thiruvananthapuram in the meanwhile and she has not given consent for a divorce. It is also contended that the procedural requirements have not been satisfied. Hence the appeal.
3. S.13B of the Hindu Marriage Act, 1955 reads as follows:
“13B. 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-s. (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 satis
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