Divorce petition can be filed through power of attorney

There is nothing wrong in the Family Court entertaining an application even though it is filed through the power of attorney holder.

The Kerala High Court observed the above-mentioned reasoning in the matter of Mohanan v. Ajitha & Anr. (Mat. Appeal No. 470/2010), decided on 19.3.2019.

CHALLENGES

The Appeal was filed by the petitioner challenging the judgment of a Family Court, by which his petition for divorce had been dismissed on the ground that the petition was presented by power of attorney holder.

The petitioner sought for divorce under Section 13(1)(i) and (i)(a) of the Hindu

Marriage Act, 1955. The petition was filed alleging adultery and cruelty.

The Family court had dismissed the plea of the petitioner, by referring to an earlier Kerala High court judgment in Regharani v. Prabhu [2007 (3) KLT 917].

HELD

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. The issue in the present case 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.

In the present case, the divorce was sought on the ground of adultery and cruelty. In so far 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 far end of the trial on the ground that it was not maintainable