Can NRI file divorce case without coming to India?

Non-Resident Indians (NRI) settled abroad may want to have divorce by way of mutual consent (uncontested) or uncontested divorce in India without coming to India. In the past, this was not possible. However with the change in times, the courts have recognised that the persons were settled abroad are sometime not able to come to India to file divorce cases and be present here at all times. The courts have thus become more flexible in their approach while dealing with cases of Non-Resident Indians (NRI).

The recommended approach is that Non-Resident Indians (NRI) should come to India and contest their own cases while being present in India on specific dates given by their lawyers. This means they do not have to be present in India throughout the pendency of litigation. Generally such dates in divorce cases are few. However, in extreme circumstances if the Non-Resident Indians (NRI) is unable to come to India, divorce cases can be filed through power of attorney holder. Such power of attorney holder in a divorce case should be a close relative so that courts are more open to entertain petition filed through power of attorney holder.

In contested divorce matters, the person who is a party to divorce still has to come to India at least once to get divorce. This is so because the courts have the view that power of attorney holder is just a representative or an agent of the principle (the one whose party in a case). So an agent cannot be personally aware of what has happened with the principle and for giving evidence person knowledge of all the facts and circumstances is a must.

Some of the judgements in which courts have entertained petitions through power of attorney holders are as following –

Rajwant Singh Bains v. Kulwant Kaur Bains (P&H) 2014(3) PLR 320

JUDGMENT

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 13B of the Hindu Marriage Act, 1955 has been dismissed.

2. 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 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.

3. 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.

4. 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.

5. We have given our thoughtful consideration to the matter. A party in a divorce petition can appear through a power of attorney specially 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, 2014(2) Law Herald (P&H) 1371 (DB) : 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.

6. 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 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.

7. 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.

8. 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.

Amrinder Singh v. Seerat Kaur 2017(3) PLR 679

JUDGMENT

Daya Chaudhary, J. – The present revision petition has been filed for setting aside impugned order dated 26.10.2016 passed by District Judge, Family Court, Faridabad to the extent that the petitioner has been directed to be present in person at the time of recording second motion statement in mutual consent divorce petition No. HMA 1312/27.10.2016 filed under Section 13B of the Hindu Marriage Act and for granting exemption from personal appearance and to allow Special Power of Attorney holder, namely, Sh. Bhagwan Singh to appear, act and make statement on behalf of the petitioner.

2. Briefly, the facts of the case, as made out in the present petition are that petitioner got married to respondent on 10.2.2013 according to Sikh rites and rituals. They remained together for sometime but thereafter they could not pull together in their married life. FIR No. 129 dated 7.6.2014 was registered at Police Station Faridabad NIT against the petitioner and his parents. Subsequently, the dispute between the parties was amicably settled vide compromise deed dated 16.5.2016 with the intervention of the respectables of the Society and family members, wherein, it was mutually agreed that the respondent-wife will not insist the petitioner-husband to appear before the Court for making statement as the petitioner was residing in Australia and was unable to come to India. This condition was mentioned in para No. 7 of the compromise deed. Accordingly, the petitioner gave power of attorney to his uncle, namely, Bhagwan Singh. On the basis of compromise arrived at between the parties, the petitioner husband approached this Court by way of filing Crl. Misc. No. M-26891 of 2016 for quashing of the FIR, which was allowed vide order dated 15.11.2016. Thereafter, a petition under Section 13B of the Hindu Marriage Act for dissolution of marriage by way of mutual consent was filed by the petitioner-husband through his uncle, namely, Sh. Bhagwan Singh, being Special Power of Attorney holder. The statements of both the parties were recorded on 26.10.2016 but the trial Court directed the Special Power of Attorney holder to produce husband-petitioner in person at the time of recording of second motion statement on 2.5.2017. The petitioner husband filed the present petition for setting aside impugned order dated 26.10.2016 partly, vide which, the petitioner was directed to remain present for making second motion statement in the divorce petition filed under Section 13B of the Hindu Marriage Act.

3. Learned counsel for the petitioner contends that the matter has already been compromised between the parties and respondent-wife has no objection in case the second motion statement on behalf of the petitioner-husband is recorded through his attorney. The amount settled in the compromise has already been paid to the respondent-wife still the petitioner has been asked to appear in person for recording of the statement of the second motion, whereas, statement of first motion has already been recorded. Learned counsel further contends that the petition has also been filed through Power of Attorney and the statement made by the Attorney is equally good as he has been authorized by the petitioner-husband to make statement on his behalf. Respondent-wife has also no objection in recording the statement of attorney holder.

4. Learned counsel for the respondent has not disputed filing of the petition under Section 13B of the Hindu Marriage Act and also recording of the first motion statement. He has also not disputed the factum of grant of amount as per compromise arrived at between the parties. It is also not disputed that FIR No. 129 dated 7.6.2014 registered under Section 406,498A I.P.C. at Police Station Faridabad NIT has already been quashed by this Court on the basis of compromise arrived at between the parties.

5. Heard the arguments advanced by learned counsel for the parties and have also gone through the impugned order and other documents available on file.

6. Admittedly, the petition under Section 13B of the Hindu Marriage Act for dissolution of marriage has been filed with mutual consent by the petitioner-husband through Special Power of Attorney, namely, Sh. Bhagwan Singh. As per Special Power of Attorney, the Power of Attorney holder has been authorized to file/pursue/defend all cases relating to matrimonial dispute with his wife pending before the Court at Faridabad or to be filed in the Court/Tribunal/Commission. He has been authorized to compromise/compound the cases in respect of said matrimonial dispute pending before any Court in India or Punjab and Haryana High Court at Chandigarh and Supreme Court of India. The Special Power of Attorney was also authorized to make statement on behalf of the petitioner-husband and to submit affidavit, statement before any Court.

7. Learned counsel for the respondent-wife has no objection in case statement of Special Power of Attorney holder is recorded in the second motion as money has already been paid to her. In para No. 7 of the compromise, it has specifically been mentioned that the petition under Section 13B of the Hindu Marriage Act will be filed through Sh. Bhagwan Singh being attorney holder of petitioner-husband and the statement will be made by him on his behalf and the respondent-wife will not insist the petitioner-husband to appear before the Court for making such statement.

8. The issue which arises for consideration before this court is as to whether it is mandatory for the parties to appear in person in court at the time of filing of petition for divorce by way of mutual consent and also at the time of second motion or the attorney can be authorised to appear ?

9. The High Court of Delhi in the case of Neelima Chopra v. Anil Chopra 1987 (1) HLR 187 while referring to the provisions of Section 13-B of the Act and considering the issue of appearance of attorney in such cases, opined as under :-

“As I read it, if the conditions mentioned in Section 13-B are satisfied then the Court has no option but to grant a decree of divorce. It is no doubt true that subsection (2) of section 13-B requires the Court being satisfied “after hearing the parties and after making such inquiry as it thinks fit”. What is the satisfaction which is to be arrived at by the courts is provided by the said provision itself. The satisfaction which has to be arrived at by the court has to be that firstly a marriage had been solemnised and secondly that the averments in the petition are true.

For arriving at such a satisfaction, I fail to understand the need for the parties to appear in person. In order to arrive at this satisfaction it is open to the parties to file affidavits or authorise someone to make statement testifying to the correctness of the contents of the petition. In both the parties, by way of affidavits or through counsel, state that they were married, and are able to produce proof of the marriage, and that they have been living separately and have not been able to live together for the prescribed period, then I see no reason as to why the court should not record its satisfaction as envisaged by Section 13-B (2) and to pass a decree for divorce thereon.

The learned counsel for the petitioner has drawn my attention to the decision of the Calcutta High Court in the case of Annalie Prashad v. Romesh Proshad, AIR 1968 Calcutta 48. That undoubtedly was a case under the Special Marriage Act but the provisions of the two Acts are similar. In that case also the trial court had desired the personal presence of the parties but the Calcutta High Court observed that the same was not necessary. I am in respectful agreement with the aforesaid decision.”

10. A Division Bench of Andhra Pradesh High Court in Padmakiran Rao (Mrs.) v. B. Venkateramana Rao 1996 (2) HLR 271 case while dealing with the similar issue held as under :-

“Relying on the wording “after hearing the parties” in subsection (2) of Section 13-B, the learned Subordinate Judge took the view that both the parties to the marriage should necessarily be present in the Court for examination and the filing of affidavit will not be a substitute for that requirement. The learned Judge observed that unless the parties are personally present, it would be difficult for the Court to assess whether they have changed their mind since the date of filing the petition. We do not think that this is a correct view to be taken. ‘Hearing’ does not necessarily mean that both parties have to be examined. The word ‘hearing’ is often used in a broad sense which need not always mean personal hearing. In any case, the evidence of one of the parties, i.e., the appellant herein was recorded by the Court. Thus, even if the word ‘hearing’ is construed in a literal sense that requirement must be deemed to have been satisfied in the instant case in view of the examination of the appellant. On the husband’s side there is evidence in the form of an affidavit which can be legitimately taken into account in view of 19, Rule 1 CPC. It is not as if the affidavit has been doubted or the other party wanted to cross examine the deponent of the affidavit. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of the parties. The learned Judge fell into error of law in observing that he cannot look into the affidavit at all. There is also a valid reason for nonattendance of the respondent in the Court. In the circumstances, the order of the Lower Court is set aside and the appeal is allowed. We declare that the marriage between the parties shall stand dissolved with effect from the date of this judgment and a decree for divorce be passed. We make no order as to costs.”

11. Section 21 of the Hindu Marriage Act provides that as far as may be, the proceedings under the Act are to be regulated by the CPC. Order 3 of CPC provides for appearance of the parties through the recognised agent or a pleader. The recognised agent may be a person holding power of attorney authorising him to make and do such appearances, applications and acts on behalf of such parties.
12. Section 23 (1) (bb) of the Act provides that in any proceedings under the Act whether defended or not, the court has to be satisfied specially in the cases where the divorce is sought on the ground of mutual consent, that such consent has not been obtained by force, fraud or undue influence.

13. In the present case, the dispute between the parties has been settled with certain terms and conditions. The respondent-wife has also no objection in case the statement of Special Power of Attorney Holder of petitioner-husband is recorded in the second motion. Moreover, money has already been paid to the respondent-wife. The presence of the petitioner husband is not mandatory in the proceedings for divorce by way of mutual consent. In case the petitioner-husband is represented through power of attorney who is none else but a close relative of the petitioner-husband, the genuineness of the statements, pleas and proceedings cannot be doubted. It is not that the satisfaction can only be recorded when the parties are present in person. There can be a case where even in the presence of the parties, the Court may not feel satisfied about their bona fides or consent. In the present case, the first motion statement on behalf of petitioner-husband has already been recorded and it is only at the stage of recording of second motion statement, the presence of petitioner-husband has been sought by the trial Court without recording any reason or satisfaction of the Court.

14. In view of the above, the present petition is allowed and the condition of appearance of petitioner-husband in person as mentioned in impugned order dated 26.10.2016 is set aside. The trial Court is directed to allow the Special Power of Attorney Holder, namely, Sh. Bhagwan Singh to make second motion statement on behalf of the petitioner-husband on any date to be given by the trial Court.

Petition Allowed.