Now, personal presence not must for divorce by mutual consent

Bombay high court directs family courts to accept joint pleas for divorce by mutual consent even if the consents are signed by their registered power of attorneys

Estranged spouses living across continents can now easily seek divorce by mutual consent even without marking physical presence in India. Making it easier for them to get their troubled marriages dissolved at the earliest and start afresh, the Bombay high court on Friday directed family courts not to insist on personal presence of the parties and accept joint pleas for divorce by mutual consent even if the consents are signed by their registered power of attorneys.

The high struck down the order of a Pune family court.(HT FILE)

Justice Bharati Dangre on Friday struck down a January 1, 2018 order of the principal judge of the family court at Pune refusing to register a petition filed by an estranged couple under Section 13B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. The family court had refused to register their plea on the ground that the consent terms did not bear the wife’s signature. Instead, her father had signed the document on her behalf.

The single-judge high court bench struck down the order, saying power of attorney is an authorised person through whom pleadings can be duly made and verified. The judge said provisions of the Civil Procedure Code (CPC) are applicable to the proceedings before the family courts and under provisions of the CPC, pleadings can be verified by either the person pleading it or by some other person who is acquainted with the facts of the case.

Due to globalisation a number of educated people are going abroad and it is not possible for each of them to remain present before the court and there is nothing illegal in trying to resolve such difficulties by adopting novel and available ways by use of advanced technology, the judge quoted from the judgment of another judge of the high court.

While the petitioner woman’s estranged husband was available in Pune, the woman was unable to personally remain present before the family court for signing and verifying the consent terms. This is because she is employed in the United States of America and the terms of her employment did not allow her to return to India when the joint plea was filed in December 2017.

The high court has now directed the family court not to insist upon physical presence of the parties and arrange for verification of the consent terms either through ‘Skype’ or such other available technology.

Justice Dangre said it was imperative for the family court to accept an application for dissolution of marriage by mutual consent if it stated that the spouses are residing separately for over a year, they have not been able to live together and they have mutually agreed to dissolve the marriage. What the family court has only to do to allow such a plea is to ascertain the factum of marriage and its irrevocable break down with no possibility of any reconciliation, the judge added.