THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY
Civil Revision Petition No.875 of 2012
19.03.2012
Sri S.B.Tirumal Raj
Smt.Lakshmi Prasanna
Counsel for the Petitioner: Sri J.A.Qureshi
Counsel for the respondent: ---
< Gist:
> Head note:
? Cases referred:
1995(3) ALD 341 (DB)
ORDER:
This civil revision petition arises out of order, dated 31.12.2011, in
O.P.No.619 of 2011, on the file of the learned Judge, Family Court, Hyderabad.
Even though notice was served on the respondent and acknowledgement in proof
thereof is filed by the petitioner's counsel along with memo, dated 09.03.2012,
no one entered appearance for the respondent.
The short issue that arises for consideration in this civil revision petition is
whether the presence of the petitioner is necessary for grant of divorce under
Section 13B of the Hindu Marriage Act, 1955 (for short 'the Act'). The
petitioner is represented by Special Power of Attorney Holder, as he is
presently residing in UK. He along with the respondent, who is his wife,
presented an application for divorce by mutual consent under Section 13B of the
Act, on 21.04.2011. After expiry of the statutory minimum period of six months,
the case was posted on 31.12.2011. On the said date, the respondent and the
Special Power of Attorney Holder of the petitioner were present. The affidavit
of the petitioner herein was also filed. However, the lower Court has adjourned
the case to 21.01.2012 with the direction to the petitioner to attend the Court
on the said date. Feeling aggrieved by the said direction for personal presence
of the petitioner, he filed the present civil revision petition.
At the hearing, Sri J.A.Qureshi, learned counsel for the petitioner, stated that
the provisions of Section 13B of the Act do not envisage personal presence of
the parties for granting decree of divorce by mutual consent. He placed
reliance on the judgment of the Division Bench of this Court in Mrs.Padmakiran
Rao v. B.Venkataramana Rao1, wherein this Court considered the words "after
hearing the parties" in sub-section (2) of Section 13B of the Act and held as
under:
"...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 appellate 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 Order XIX 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."
In the instant case, the petitioner expressed his inability to be personally
present as he is living in UK. There does not appear to be any objection from
the respondent's side for grant of divorce. As held by the Division Bench,
unless there are suspicious circumstances or any reason to think that the
averments contained in the affidavit filed by the petitioner may not be true,
there is no reason for the lower Court to order personal presence of the
petitioner. As noted above, the Special Power of Attorney Holder of the
petitioner is pursuing the case and therefore, there is no requirement for the
petitioner being personally present for disposal of the joint application filed
for divorce.
For the above-mentioned reasons, the civil revision petition is allowed. The
lower Court is directed to dispose of O.P.No.619 of 2011 on the next date of
hearing without insisting on the personal presence of the petitioner.
C.V.NAGARJUNA REDDY, J
19th March, 2012
