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2013 Supreme(P&H) 1013
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice S.S. Saron
The Hon’ble Ms. Justice Navita Singh
FAO No.M-351 of 2013
Jasjit Saini
v.
Sanjeev Pal Singh Saini
{Decided on 09/12/2013}
For the Appellant:Mr. Divanshu Jain, Advocate.
For the Respondent:Mr. Vivek Thakur, Advocate.
Headnote:Divorce--By Mutual Consent--Personal appearance of the parties is not mandatory--Appearance of parties would include appearance through duly constituted attorneys.
(A) Hindu Marriage Act, 1955, S.13-B--Divorce--By Mutual Consent--Personal appearance of the parties is not mandatory--Appearance of parties would include appearance through duly constituted attorneys. (Para 20)
(B) Hindu Marriage Act, 1955, S.13-B--Divorce--By Mutual Consent--Appearance of parties through power of attorney is permissible--Held; Normally parties would appear personally so that state of mind could be ascertained--However , as exception, a close relative who is in position to depose about state of mind of principal and is managing affairs of principal, then such statements of an attorney can be accepted and matrimonial relief can be granted. (Para 20)
(C) Hindu Marriage Act, 1955, S.13-B--Divorce--By Mutual Consent--Appearance of parties through power of attorney is permissible--Parties can appear through attorneys where one of the parties or both are unable to appear for justiable reasons like living abroad and their affairs are managed by a close relative who is acting as an attorney. (Para 22)
(D) Evidence Act, 1872, S.41--Divorce Petition--A decree of matrimonial Court is a judgment in rem--Hindu Marriage Act, 1955, S.13. (Para 25)
(E) Hindu Marriage Act, 1955, S.19--Divorce Petition--Territorial Jurisdiction--Held; Parties living away (abroad)from place of solemnization of marriage--Territorial Jurisdiction of court where marriage was solemnized would not be taken away. (Para12)
(F) Hindu Marriage Act, 1955, S.19--Divorce Petition--Territorial Jurisdiction--The statutory provisions provides for filing a petition for divorce by mutual consent in the District Court within the local limits of which the marriage was solemnized, there can be no estoppel against the statute. (Para12)
(G) Hindu Marriage Act, 1955, S.24--Maintenance--In case the wife does not claim any maintenance for herself, it is not for the Court to fix the payment of maintenance of her. (Para 13)
(H) Power of Attorney Act, S.2--Persons who could give evidence with regard to the matters involving personal knowledge enumerated--
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorneyholders or persons residing abroad managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorneyholder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
Mr. S.S. Saron, J.:- This appeal has been filed by the appellant-wife against the judgment and decree dated 10.10.2013 passed by the learned Additional District Judge, Chandigarh whereby the joint petition (Annexure A-1) filed by the parties seeking dissolution of their marriage by a decree of divorce by mutual consent in terms of Section 13-B of the Hindu Marriage Act, 1955 (‘Act’ - for short) has been dismissed.
2. The marriage between the parties was solemnized at Sector-21 Gurudwara, Chandigarh as per Sikh rites and ceremonies on 24.12.1995. The parties had two daughters namely Simran Saini aged 15 years and Smiti Saini aged 12 years. They are studying in class 10 and class 7 respectively in England. Both the daughters are living with the appellantwife. The parties had agreed that the custody of the daughters shall remain with the appellant-wife. The respondent-husband, however, had a right to meet the daughters with prior intimation to the appellant. After marriage, the parties stayed in India till 2006. Thereafter they went to England in January, 2007. Their relations became strained after they went to England. They tried their best to adjust and compromise with each other for the sake of the children. However, despite best efforts, they could not adjust. There was complete incompatibility of temperament between them. Therefore, they mutually agreed that the marriage between them be dissolved by a decree of divorce. They had been living separate from each other since March, 2012. There was no dispute between the parties regarding dowry articles; besides, the appellant does not claim any maintenance and alimony from the respondent. They had no claim against each other. Accordingly, a joint petition (Annexure A-1) was filed by the parties seeking dissolution of the marriage between them by a decree of divorce in terms of Section 13-B of the Act. The parties appeared in the Court of the learned Additional District Judge, Chandigarh on 03.04.2013 and their respective statements (Annexure A-2 and Annexure A-3) were recorded at the first motion wherein they consented for grant of divorce.
3. The appellant-wife in her statement (Annexure A-2) inter alia stated that after marriage she along with her husband (respondent) went to Bombay where they stayed together for about a year after which they shifted to Jalandhar where they stayed together for three-four years. Then they came to Panchkula. The appellant along with her family lived at Panchkula for six-seven years. During this entire period, the respondent was living with the appellant. He was working in Delhi and used to come to the family at weekends. Then they migrated to England in 2007. They had two daughters from the marriage namely Simran Saini who was born on 19.09.1997 and Smiti Saini who was born on 01.01.2001. Both the daughters were born at Chandigarh. The parties lived together in England for a period of about five years. Both the daughters were living in the care and custody of the appellant. The appellant came to India on 28.03.2013. They had been living separately since March, 2012. The appellant was residing at Beverley Mansion, Middlesex, U.K. while the respondent was living in Southall, Middlesex, U.K. There was no dispute about dowry articles. It is stated by the appellantwife that she does not claim any alimony or maintenance from the respondent. They have been unable to live together due to temperamental differences. There was no understanding between them. Since March, 2012, they had never lived together and there had been no cohabitation between them. She had voluntarily given her consent to the petition for divorce without force, fraud or undue influence. The respondent could visit his daughters at any time. Both the daughters would be staying with her.
4. The respondent-husband also made his statement (Annexure A-3) in which he inter alia stated that he had heard the statement of the appellant which he admits to be correct. It is further state
