The Kerala High Court has held that a petition seeking divorce under Section 13 of the Hindu Marriage Act can be filed through a power of attorney.
Before the bench comprising of Justice AM Shaffique and Justice Ashok Menon, an order of Family court which dismissed a divorce petition on the ground that it was presented by power of attorney holder, was under challenge.
The Family court had dismissed the plea of a husband who sought divorce on the ground of cruelty and adultery, by referring to an earlier High court judgment in in Regharani v. Prabhu [2007 (3) KLT 917].
The bench noticed that the judgment in Regharani was concerning an application under Section 13B of the Hindu Marriage Act, where divorce was sought on mutual consent. It said:
“This is not a case where divorce is sought on mutual consent, whereas divorce is sought on the ground of adultery and cruelty. Insofar as there is specific provision under the Code of Civil Procedure enabling a petition to be filed through a power of attorney holder, there is nothing wrong in the Family Court entertaining an application even though it is filed through power of attorney holder. The provisions of CPC squarely apply to matters that are entertained by Family Court as well. Therefore, we do not think that the Family Court was justified in rejecting the petition at the fag end of the trial on the ground that it was not maintainable.”
In Rekharani, the bench headed by Justice Kurian Joseph (then Kerala HC Judge), the issue was whether a power of attorney holder is entitled to present a petition for dissolution of marriage by a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The bench had held that in matters requiring personal knowledge, the evidence cannot be tendered through the power of attorney holder.