Uttarakhand High Court Pulls Up Family Court For Not Allowing US Resident To File Divorce Petition Through POA Holder

The Uttarakhand High Court recently directed a family court in Haldwani to entertain a man's petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 on the basis of the power of attorney furnished on behalf of his father.

The division bench of Chief Justice Vipin Sanghi and Justice R.C. Khulbe, while expressing its dismay on the approach of the Family Court, said the subordinate court is expected to deal with issues, which arise before it, without waiting for a pronouncement by the high court.

"There were enough precedents cited before the Family Court not only of several High Courts, but also of the Supreme Court, which recognize 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."

The order was passed on a petition filed by a Kentucky resident whose petition was rejected by the family court in July. He, through his father, and his wife had jointly moved a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act.

The Family Court at Haldwani, however, rejected the petition, saying that the husband should have personally preferred the petition and remained present in the court.

"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 this Court on the said aspect," the division bench headed by Justice Sanghi noted.

The Court said the parties had placed reliance on several decisions of other high court courts in which it has been clearly held that a petition to seek divorce by mutual consent could be moved by the power of attorney of the parties. Supreme Court's decision in Amar Deep v. Harveen Kaur, Civil Appeal No. 11158 of 2017 was also cited by the parties.

Setting aside the impugned order, the court said the presence of the appellant shall be secured through video conferencing, since he is residing in the USA and is not in a position to come to India.