Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1576 (RAJ)

Prateek Tater S/o Shri Kamlesh Tater v. Pragya Chordia D/o Shri Ashok Chordia

2022-05-16

VIJAY BISHNOI

body2022
Order This writ petition is preferred on behalf of the petitioner being aggrieved with the order dated 07.03.2022 passed by the Family Court No.1, Jodhpur (for short ‘the Family Court’) whereby, the application under Order III Rule 2 read with Section 151 CPC and Section 10 of the Family Courts Act, 1984 filed on behalf of father of the petitioner, as being power of attorney holder, for representing him before the Family Court has been dismissed. 2. Brief facts of the case are that marriage of the petitioner and the respondent was solemnized on 7.10.2020 at Jodhpur as per the Hindu Rites and Customs. It appears that soon after the marriage, the relations between the parties became strained and both of them started living separately from 07.10.2020. 3. Despite best efforts made by the parties for restoring their conjugal relations and regular counselling by their near relatives, the matrimonial dispute between them could not be settled and, therefore, the parties have jointly filed an application under Section 13-B of the Hindu Marriage Act, 1955 (for short ‘the Act of 1955’) seeking divorce by mutual consent before the Family Court on 26.10.2021. The Family Court registered the said application and fixed the next as 20.04.2022 for counselling of the parties. 4. In the meantime, the parties have also preferred a joint application praying for waiver of six months’ statutory period specified under Section 13-B(2) of the Act of 1955. Arguments on the said application were heard and the Family Court dismissed the said application vide its order dated 16.11.2021. 5. Being aggrieved with the order dated 16.11.2021, the respondent herein has preferred SB Civil Writ petition No.215/2022 before this Court and this Court vide order dated 07.01.2022 while relying on the decision of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur, reported in (2017) 8 SCC 746 has allowed the writ petition, the operative portion whereof reads as under :- “13. In light of the facts and circumstances of the case, particularly the fact that the parties are sufficiently educated and are aware of their rights - the petitioner (wife) is a qualified engineer and has entered in family business and the respondent(husband) is also a qualified engineer and is working in Canada; as they have mutually decided to end their matrimony finding no hope/chance of reconciliation, I am of the opinion that their application for waiver of the statutory period of six months specified under Section 13- B(2) of the Act of 1955 deserves acceptance. 14. Hence, this writ petition is allowed. The impugned order dated 16.11.2021 passed by the Family Court is set aside and their application filed by the parties for waiver of the statutory period of six months specified under Section 13- B(2) of the Act of 1955 is, hereby allowed. The statutory period of six months specified under Section 13-B(2) of the Act of 1955 is hereby waived in exercise of extraordinary powers available to this Court by virtue of Article226 of the Constitution of India. 15. The parties are directed to appear before the Family Court on 14.02.2022, where after the concerned Family Court will pass decree of divorce in accordance with law.” 6. Pursuant to the order passed by this Court on 07.01.2022, father of the petitioner has moved an application before the Family Court with a prayer to allow him to take participate the proceedings before it being power of the attorney holder of the petitioner, however, the trial court has refused to allow the petitioner’s father to represent the petitioner in the proceedings before it while observing that the High Court vide order dated 07.01.2022, passed in SB Civil Writ Petition No.215/2022, has directed the parties to appear before it with a further direction that the concerned Family Court will pass decree of divorce in accordance with law. The Family Court is of the view that as per direction of the High Court the parties are required to present in person before it. 7. Learned counsels for the parties have submitted that the Family Court has grossly erred in not allowing father of the petitioner to represent him before it. The Family Court is of the view that as per direction of the High Court the parties are required to present in person before it. 7. Learned counsels for the parties have submitted that the Family Court has grossly erred in not allowing father of the petitioner to represent him before it. It is further submitted that there is no dispute with regard to the fact that the petitioner has executed power of attorney in favour of his father and he has authorized him to participate in the proceedings on his behalf before the Family Court. 8. Learned counsels for the parties have submitted that the Hon’ble Supreme Court in Amardeep Singh’s Case (supra) has observed that the Family Court can permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of Justice. 9. Learned counsel for the petitioner has submitted that since the petitioner left for Toronto, Canada because he is serving there as an engineer in a private company, it is not possible for him to appear personally before the Family Court in the pending proceedings. It is also submitted that the petitioner has executed power of attorney in favour of his father on his behalf in accordance with law and the respondent has also no objection to the said power of attorney. 10. Learned counsel for the respondent has submitted that the respondent has no objection, if father of the petitioner is allowed to participate in the proceedings before the Family Court. 11. The Hon’ble Supreme Court in Amardeep Singh’s case (supra), in para 22, has observed as under :- “22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of Justice .” (Emphasis Supplied) 12. In such circumstances, I am of the opinion that the Family Court is not justified in not allowing father of the petitioner to participate in the proceedings pending before it. 13. Hence, this writ petition is allowed. In such circumstances, I am of the opinion that the Family Court is not justified in not allowing father of the petitioner to participate in the proceedings pending before it. 13. Hence, this writ petition is allowed. The impugned order dated 07.03.2022 passed by the Family Court, refusing father of the petitioner to participate in the proceedings pending before it on behalf of the petitioner, is set aside. The Family Court is directed to permit father of the petitioner to participate in the proceedings under Section 13-B of the Act, 1955 on behalf of the petitioner. 14. The father of the petitioner and the respondent are directed to appear before the concerned Family Court on 17th May, 2022 at 9:00 AM. The Family Court concerned shall pass decree of divorce in accordance with law.