Bombay HC rules divorce consent can be obtained via Skype

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The Bombay High Court on 17th April ruled in favour of the petitioner granting her wish to file divorce through the online medium via social media app such as Skype.

Facts of the case

The petitioner had filed for a divorce from her husband at the Family Court in Bandra, Mumbai where both she and her father who is the holder of her power of attorney had signed. The divorce petition filed last year on under Section 13B of the Hindu Marriage Act which is based on mutual consent to divorce was however rejected. The Family Court on their ruling in last month stated that as the petitioner herself was not present to file the divorce but was represented by her father on her behalf the plea cannot be considered.

The couple were married in 2002 and has been living separately since 2016. Advocate Samir Vaidya submitted to the Court on behalf of the petitioner that she is currently based in United States and is working there and was unable to obtain leave to visit India to file the petition. Advocate Vaidya further pointed out that the Family Court could have asked for e-counselling and e-verification by video conferencing placing his reliance on the Mukesh Narayan Shinde v Palak Mukesh Shinde judgment.

Court ruling

The case was heard by Honourable Justice Bharati Dangre at the Bombay High Court who overturned the ruling of the Family Court. She stated that “due to technology and since educated young persons are crossing the borders of India, it is not possible to remain present (to file petitions).” She also allowed the holder of power of attorney, in this case, petitioner’s father to pursue the case on her behalf.

Justice Dangre observed that while perusing the petition the Family Court had “failed to apply any legal provision to the facts in hand. The Judge, Family Court, did not bother to refer to the judgments cited before it and even did not bother to peruse the procedure which is required to be complied by the parties at the time of filing of such petition before the Family Court seeking divorce by mutual consent.” She reiterated that the Family Court is bound by Order 3 Rule 2 of the Code of Civil Procedure which states that due recognition should be given to agents of parties by whom such appearances, applications and acts may be made or done which includes a person holding Power of Attorney authorizing them to make such appearances, application and acts on behalf of such parties.

Justice Dangre ruled in favour of the petitioner stating “there is no legal lacunae in the filing of the petition through a registered power of attorney.” She directed the Family Court “in the light of the said legal position, Family Court will not insist upon the presence of the parties before the Court and would arrange for the consent terms to be recorded either through Skype or adopting any other technology and the proceedings contemplated under Section 13B of the Hindu Marriage Act in the time schedule specified therein.”

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