Document Fragment View

Matching Fragments

Drawing attention of the Court to the provisions contained in sub-section (2) of Section 13-B of Hindu Marriage Act, learned counsel for both the parties have submitted that ordinarily the Family Court grants such a petition moved under Section 13-B of Hindu Marriage Act seeking divorce by mutual consent only on being satisfied, that too after hearing the parties and after making such inquiry as it thinks fit, and for the purpose of making inquiry, the Family Court requires personal presence of both the parties seeking divorce by mutual consent before it.

13-B. Divorce by mutual consent- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

The issue posed by Hon'ble High Court of Punjab and Haryana for its consideration was as to whether it is mandatory for the parties to appear in person in Court at the time of filing of a petition for divorce by way of mutual consent and also at the time of second motion or the attorney can be authorized to appear.

The Hon'ble High Court of Punjab and Haryana in the case of Navdeep Kaur (supra) also considered the provision of Order III, CPC which deals appearances etc. by recognized agent or by pleader and came to the conclusion that in case the court does not doubt the genuineness of the contents stated in a joint petition for divorce by mutual consent and one of the parties are represented by an attorney, who is father of the party concerned, and thus, cannot be expected to act against the interest of his son, such a petition ought not be rejected merely on the ground that one of the parties does not appear in person. The Hon'ble High Court of Punjab and Haryana took into account the fact that paramount consideration is the correctness of contents of the petition filed and also to see that consent of the parties has not been obtained by force, fraud or undue influence. The Court has held that in absence of the parties where the attorney appears, the Courts have to be more cautions and vigilant in recording its satisfaction about the consent. Relevant paragraph of the aforesaid case is quoted below:-

4. On presentation of the joint petition seeking divorce by mutual consent under Section 13-B of Hindu Marriage Act, the learned court below will proceed with the said application in accordance with law after permitting the power of attorney authorized by the petitioner to appear before it. The Court will also make such inquiries as are deemed fit in respect of the averments made in the petition for divorce by mutual consent and it is only on being satisfied that contents of the petition are true, the court will proceed to pass appropriate orders.