Punjab-Haryana High Court
Rajwant Singh Bains vs Kulwant Kaur Bains .....Appellant No.2 on 21 March, 2014
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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F.A.O. No. M-121 of 2014
Date of Decision:21.03.2014
Rajwant Singh Bains .....Appellant No.1
Vs.
Kulwant Kaur Bains .....Appellant No.2
CORAM:- HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MS. JUSTICE NAVITA SINGH
Present:- Mr. Parminder Singh Kanwar, Advocate for the appellants.
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S.S. Saron, J.
This appeal has been filed by both the petitioners before the learned trial Court against the judgment and decree dated 16.12.2013 passed by the learned Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur whereby their joint petition 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 has been dismissed.
The marriage between the appellants was solemnised according to Sikh rites at Mahilpur, District Hoshiarpur on 6.2.2007. After marriage, they lived and cohabited together as husband and wife at Mahilpur. From the marriage, the parties had no child. Due to temperamental differences between them, their relations became strained. They were not able to live together and have been living separately from each other. Since the marriage had irretrievably broken down, they mutually agreed that it should be dissolved by a decree of divorce by mutual consent. Accordingly, the appellants filed a joint petition in the District Court at Hoshiarpur on Renu 2014.03.22 14:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-121 of 2014 -2- 8.3.2013. Their statements at the first motion were recorded on the said date. It was inter-alia stated by them that their marriage had irretrievably broken down and they had decided to dissolve the same by mutual consent. Kulwant Kaur - appellant No.2 tendered in evidence her Special Power of Attorney dated 6.3.2013 in favour of her real brother Harpal Singh.
The case was adjourned for statutory waiting period of six months. After expiry of the period of six months, the statements of appellant No.1 and attorney of appellant No.2 were recorded. Both of them reiterated the desire of the parties for divorce by mutual consent. Appellant No.1 and attorney of appellant No.2 stated that the marriage be dissolved by a decree of divorce. The learned Additional District Judge, however, dismissed the petition on the ground that appellant No.2 had not herself appeared before the Court to make her statement. It is only the power of attorney holder who had appeared.
Learned counsel for the appellants submits that now Kulwant Kaur - appellant No.2 who was earlier abroad is in India and she is willing to make her statement for dissolution of the marriage between the parties by mutual consent. It is also submitted that even otherwise there is no specific bar for a party to appear through a power of attorney at the time of second motion. Besides, it is submitted that real brother of appellant No.2 who was her attorney could have represented her (appellant No.2) for making a statement on her behalf and there was no reason for his statement not to be accepted.
We have given our thoughtful consideration to the matter. A party in a divorce petition can appear through a power of attorney specially Renu 2014.03.22 14:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-121 of 2014 -3- when he has relationship with one of the parties to the lis and the party which has given a power of attorney is abroad as laid down by a Division Bench of this Court in Jasjit Saini v. Sanjeev Pal Singh Saini, F.A.O. No. M-351 of 2013 decided on 9.12.2013. It was held therein that where a state of mind or conduct of the person is to be ascertained in a proceeding for grant of divorce, normally the parties should appear in person and their evidence alone is to be considered and not that of a person holding an attorney. However, the exception to the rule is that where a close relative appears for the parties acting as his or her attorney and is in a position to state and depose as regards the state of mind of the principal and the affairs of the principal are managed by the attorney, then such statements of an attorney on behalf of the principal can be accepted and matrimonial relief granted. The exception is all the more applicable where one of the parties or both are unable to appear for justifiable reasons like living abroad and their affairs are managed by a close relative who is acting as an attorney. In such a case the state of mind of the parties can be gathered from the statements made by the attorneys. It would depend on the facts and circumstances of each case.
Therefore, in the present case merely because the wife (appellant No.2) had not appeared in person at the time of second motion indeed ought not to have been a ground to disentitle the appellants for the matrimonial relief of divorce. However, as has already been noticed that now both the parties are available and appellant No.2 is stated to be willing to make her statement for the second motion. Therefore, it would be just and expedient in the facts and circumstances that the parties appear before Renu 2014.03.22 14:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-121 of 2014 -4- the learned trial Court itself so that their statements can be recorded at the second motion.
Accordingly, the appeal is allowed. The judgment and decree dated 16.12.2013 passed by the learned Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur is set aside.
The parties shall appear before the learned trial Court on 27.03.2014 for recording the statement of appellant No.2- wife at the second motion. The learned trial Court shall proceed with the case from the stage after statement of appellant No.1 - husband was recorded at the second motion by recording the statement of appellant No.2 - wife and then consider for grant of divorce by mutual consent.
( S.S. SARON )
JUDGE
March 21, 2014 ( NAVITA SINGH )
renu JUDGE
Note: Whether to be referred to Reporter? Yes/No.
Renu
2014.03.22 14:16
I attest to the accuracy and
integrity of this document
Chandigarh