J U D G M E N T

Dated this the 26 th day of February, 2021 Dr.Kauser Edappagath, J. A joint petition filed by the estranged couple for divorce by mutual consent u/s 13B of the Hindu Marriage Act, 1955 (for short 'HMA') before the Family Court, Thalasserry was not entertained citing reason that the husband was represented through his power of attorney holder.

2. The petitioners got married on 8/5/2011. A male child was born to them in the year 2013. But, their marital bliss did not last long. Marital dispute arose and the relationship strained resulting in institution of various legal proceedings before the Family Court and Magistrate Court from 2014 onwards. Later on in 2020, at the instance of the well wishers, mediation took place and the entire dispute was settled and an agreement was executed by the petitioners on 11/1/2020. Having realised that they cannot pull along any longer, the petitioners took a decision to separate. As per the terms of the said agreement, the petitioners decided, inter alia, to file a joint petition for divorce by mutual consent before the Family Court. Accordingly, the petitioners jointly filed a petition for divorce by mutual consent u/s 13B of the HMA before the court below. At the time of the institution of such Original Petition, the first petitioner/husband was at abroad and because of Covid-19 pandemic restrictions, he was not in a position to come back to India to present the petition. Hence, the first petitioner was represented by a duly constituted power of attorney holder, who is none other than his own brother. The Court below returned the Original petition as per the order dated 7/12/2020, marked as Ext.P1, which reads as follows:-

“Petition cannot be filed through P.A.H. u/s 13B of the HM Act. Hence, returned”.

3. The said order is under challenge in this Original Petition filed under Art.227 of the Constitution of India.

4. Heard the counsel for the petitioners.

5. The short question that arises for determination is whether a power of attorney holder can sign and file a joint petition for divorce u/s 13B of HMA.

6. The learned counsel for the petitioners relying on S.20 of the HMA and Rule 5 of the Family Courts (Procedure) Rules, 1989, argued that every petition can be filed before the Family Court, either by the petitioner or some other competent person in the manner required by law for the verification of plaint and that the Act does not prohibit entertaining petition through a power of attorney holder. The counsel further submitted that the first petitioner has been represented by his own brother/power of attorney holder and as such, he is a competent person. The learned counsel also relied on the decision of the Division Bench of this Court in Kunhi Purayil Mukundan Naveen v. Anjalika Dinesh [2011 (3) KHC 80] in support of his contention that a petition for divorce can be presented before the Family Court either personally or even through a power of attorney holder.

7. The power of attorney is an authority whereby “one is set in the turne, stead or place of another” to act for him”. In Black's Law Dictionary, “power of attorney” is described as the instrument by which a person is authorized to act as an agent of the person granting it. The relation between the donor of the power and the donee of the power is one of principal and agent as recognised u/s 182 of the Indian Contract Act. The relation of agency arises whenever one person called the agent has authority to act on behalf of another called the principal and consents so to act. The relationship has its genesis in a contract.

S.2 of the Power of Attorney Act, 1882 empowers the donee of a power of attorney to do anything “in act with his own name and signature” by the authority of the donor of the power. Once such authority is granted, the said Act reco