The Uttarakhand High Court has observed that a family court is expected to deal with issues arising before it, without waiting for a pronouncement by the High Court.
The Division Bench of Chief Justice Vipin Sanghi and Justice R.C. Khulbe disposed an appeal filed against the Order passed by the Family Court, Haldwani, which rejected the petition only on the ground that the appellant should personally prefer the petition and remain present in the court.
The parties had jointly moved a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The appellant is a resident of Lexington, State Kentucky in the US.
Consequently, he preferred the said petition through his power of attorney granted in favour of his father.
In the petition, the parties had relied upon several decisions of other High Courts, wherein it has been held that a petition to seek divorce by mutual consent can be moved by the power of attorney of the parties. Reference was also made to the judgement rendered by the Supreme Court in Amar Deep vs Harveen Kaur (Civil Appeal No 11158 of 2017, decided on 12.09.2017).
Reliance was placed particularly on Para 22 of the said judgment, which reads as follows:-
“22. Needless to say that in conducting such proceedings, the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings, where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.”
The only reason given by the Family Court for not entertaining the petition through the appellant’s father as his power of attorney was that there was no precedent by the High Court on the said aspect.
“We are dismayed by this approach of the Family Court. The Family Court is expected to deal with issues, which arise before it, without waiting for a pronouncement by this Court. There were enough precedents cited before the Family Court not only of several High Courts, but also of the Supreme Court, which recognise the right of a party to be represented in proceedings under the Hindu Marriage Act, through his/her power of attorney. We find the approach of the Family Court to be completely perverse and unexpected,” observed the Bench.
The Bench, therefore, set aside the impugned orders, and directed the Family Court to entertain the petition on the basis of power of attorney furnished on behalf of the appellant of his father.
It is clarified by the Court that the presence of the appellant shall be secured through Video Conferencing, since he is residing in the US and is not in a position to come to India and the parties shall appear before the Family Court on 01.12.2022.