Friday, August 9, 2013

NO travel! NRI can convert contested divorce to mutual consent thru power of attorney!! super judgement for NRI husbands, even where video conference is NOT available in your city / town !! read here for complete details ...


NO travel!! NRI can convert 13(1) divorce to mutual consent thru power of attorney!! super judgement for NRI husbands!!


Learning / notes
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* Husband wife file contested divorce
* wife completely absent for counselling
* wife , the ablaa naari, has also left for USA and so is obviously NOT ready to come to India and continue the case 
* now ,,,, meaning after filing the case, husband and wife have settled / compromised the matter and wish to go for mutual consent divorce
* family court refuses to convert petition as the wife was NOT present during counselling NOR present during filing of 13(B) mutual consent petition !!
* there is NO video conferencing facility in family court 
* but HC even overrides even that and says "........Thus, there is no legal hurdle into conversion of the Petition into a Petition for mutual consent. The physical presence of both the parties is generally asked and necessary to verify the authenticity   of the identity of the parties and consent of the parties.  However, there are peculiar circumstances like the case in hand   where either   of  the parties   cannot    remain   present before the Court due to certain practical difficulties i.e.  Job, leave, visa etc. due to globalisation noticeable educated young persons are crossing the borders of India and they are taking up jobs outside the country. So some of them can not remain present before the Family Court to give consent     in   matrimonial   matters.   There   is   no     illegality   to   solve     such difficulty    by  adopting   novel   and   available     ways.  This  hurdle     can   be crossed with the help of advanced technology of communication and new scientific   methods.     Though  the physical presence   is not   possible,  the Court   can   accept   and rely   on  the virtual presence   of  the parties    for verification and confirmation of the mutual consent. Even though, the counselling   with the Marriage   Counsellor   can be    facilitated   by virtual presence. ..
7. Thus, the learned Judge of the Family Court is directed to arrange a video conference of the Marriage Consellor with the Respondent­wife in the Court with the help of Computer/ Lab top or by using of webcam........"


******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2521 OF 2012

Mr. Mukesh Narayan Shinde  ...Petitioner

Vs.

Mrs. Palak Mukesh Shinde nee Palak D. Patel ...Respondent ­­ Mr. P.G. Lad for the Petitioner

Mr. R.P. Desai for Respondent ­­ CORAM : MRS. MRIDULA BHATKAR, J. DATE   : 28th March, 2012. Judgment :­

. Rule.    Rule made    returnable  forthwith.    Learned  Counsel  for  the Respondent   waives   service.   By   consent,     heard   finally   at   the   stage   of admission.

2. The Petitioner­husband has filed a Petition for challenging the order dated 7th February, 2012 passed by the learned I/c Principal Judge of the Family Court, Mumbai.  

3. Learned Counsel for the Petitioner and the Respondent are present. Both the Counsel submit that the Petitioner­husband filed a Petition forppn 2 wp-2521.12 divorce on the ground of cruelty which is numbered as A­2687 of 2010. During the pendency of Petition, the  parties have decided to solve their matrimonial dispute amicably. Therefore, they took a decision to convert a Petition filed under Section 13(1)(ia) to a Petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955.

4. The Petitioner­husband is residing in Mumbai. The Petitioner and the Respondent resided last in Mumbai. Therefore, the Petition filed is within jurisdiction of the Family Court, Mumbai. The Petitioner­husband continued to stay in Mumbai,  however, the Respondent­wife left Mumbai and at   present   she is residing at New Jersey, U.S.A.       Mr.   Dineshbhai Patel­father of the Respondent­wife is a power of attorney holder for the Respondent­wife.  Parties through their Counsel and through the Power of attorney holder filed  consent terms and requested the Court to convert the Petition under Section 13B of the Hindu Marriage Act. However, the request was rejected by the Court holding that the Respondent was absent throughout     and   counselling     was   not     taken     place   in   that   matter. Therefore, the Court felt it not safe to accept the consent terms and did not allow the conversion for want of verifying the actual position.  

5. Learned Counsel    for both   sides   submit  that    they   requested  the Court to verify the consent of the Respondent­wife by video conferencing.ppn 3 wp-2521.12 As infrastructures are not available,  the said request was turned down. The parties approached this Court for relief. 

6. Conversion of Petition filed under section 13(1)(ia) into a Petition under Section 13B for mutual consent is legally permissible. Thus, there is no legal hurdle into conversion of the Petition into a Petition for mutual consent. The physical presence of both the parties is generally asked and necessary to verify the authenticity   of the identity of the parties and consent of the parties.  However, there are peculiar circumstances like the case in hand   where either   of  the parties   cannot    remain   present before the Court due to certain practical difficulties i.e.  Job, leave, visa etc. due to globalisation noticeable educated young persons are crossing the borders of India and they are taking up jobs outside the country. So some of them can not remain present before the Family Court to give consent     in   matrimonial   matters.   There   is   no     illegality   to   solve     such difficulty    by  adopting   novel   and   available     ways.  This  hurdle     can   be crossed with the help of advanced technology of communication and new scientific   methods.     Though  the physical presence   is not   possible,  the Court   can   accept   and rely   on  the virtual presence   of  the parties    for verification and confirmation of the mutual consent. Even though, the counselling   with the Marriage   Counsellor   can be    facilitated   by virtual presence. ppn 4 wp-2521.12

7. Thus, the learned Judge of the Family Court is directed to arrange a video conference of the Marriage Consellor with the Respondent­wife in the Court with the help of Computer/ Lab top or by using of webcam. The father of the Respondent­wife shall identify the Respondent­wife. The on­ line counselling  can be done with the help of webcam. Thereafter, the learned Judge of the Family Court shall verify and record on­line consent with the help of webcam and laptop/computer. Parties to appear before the Family Court on 31st March, 2012 at 11 O' clock to enable the Judge of the Family Court to give direction to make necessary arrangements for E­counselling and E­verification by video conference. 

8. The matter is already fixed on 9th April, 2012 in the Family Court. The parties are directed to provide a laptop / web cam and other logistics required for this video conference of their own costs.   

9. Writ Petition is allowed. Rule made absolute, accordingly. No order as to costs. 

10. The parties to act on an authenticated copy of this order. 

(Judge)



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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist