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Law Querier (Service)     18 May 2013

Divorce though absent in mcd

 

My advocate told me today if husband remains constant absent after entering petition for mutual consent divorce -Sec.13B in family court, then Court can pass divorce decree in favor of wife considering signed mutual consent divorce petition of husband and an agreement/MoU made on stamp paper for mutual consent divorce by husband. I am confused with my advocate opinion. Is it possible? Pls. solve my query.



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 5 Replies

Shantanu Wavhal (Worker)     19 May 2013

NO

both the parties MUST be present for BOTH the motions.

rahul (director)     19 May 2013

call husband on skype on your laptop , and show to judge.. judge will take his consent after talking with him on skype and allow divorce on the basis of skype talk and will take a skype printout..

Shantanu Wavhal (Worker)     19 May 2013

@ rahul, 

has such thing ever really happened before ?

ajay sethi (lawyer)     19 May 2013

1)if husband so desires he can appoint POA to represent him and file affidavit on his behalf agreeing for divorce by mutual consent

2)Section 21 of the Hindu Marriage Act provides that as far as may be, the proceedings under the Act are to be regulated by the CPC. Order 3 of CPC provides for appearance of the parties through the recognised agent or a pleader. The recognised agent may be a person holding power of attorney authorising him to make and do such appearances, applications and acts on behalf of such parties. 

3)Delhi High Court in Neelima Chopra's case (supra), while referring to the provisions of Section 13-B of the Act and considering the issue of appearance of attorney in such cases, opined as under:-

"As I read it, if the conditions mentioned in Section 13-B are satisfied then the Court has no option but to grant a decree of divorce. It is no doubt true that sub-section (2) of section 13-B FAO No. M-40 of 2010 -4-

requires the Court being satisfied "after hearing the parties and after making such inquiry as it thinks fit". What is the satisfaction which is to be arrived at by the courts is provided by the said provision itself. The satisfaction which has to be arrived at by the court has to be that firstly a marriage had been solemnised and secondly that the averments in the petition are true. For arriving at such a satisfaction, I fail to understand the need for the parties to appear in person. In order to arrive at this satisfaction it is open to the parties to file affidavits or authorise someone to make statement testifying to the correctness of the contents of the petition. In both the parties, by way of affidavits or through counsel, state that they were married, and are able to produce proof of the marriage, and that they have been living separately and have not been able to live together for the prescribed period, then I see no reason as to why the court should not record its satisfaction as envisaged by Section 13-B (2) and to pass a decree for divorce thereon.

Paras Awasthi (Businessman)     10 June 2013

In such cases where you have doubt about certain provisions of law you should look for second opinion as it only gives you another perspective on your case..

You can do this by going to www.lawkonect.com

There you can get your queries answered by practicing lawyers and are also able to get face to face or telephonic interview as you wish.


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