Estranged couple need not appear in person to seek divorce on mutual consent, orders Madras High Court

Justice M. Nirmal Kumar says they could appear through video call from any part of the world and not necessarily from Indian diplomatic missions

In a major relief to estranged couples approaching the family courts for divorce on mutual consent, the Madras High Court has ordered that henceforth, such couples need not appear in person either at the time of filing the divorce petition or during the course of hearing of their plea.

Considering the difficulties faced by those employed in foreign countries, Justice M. Nirmal Kumar ordered that the petitions could be filed through power of attorneys and that the couples could appear through video call from anywhere and not necessarily through Indian consulates.

The judge said the concept of divorce by mutual consent was introduced by Parliament in 1976 by adding Section 13B to the Hindu Marriage Act of 1955 and the object behind the amendment was to dissolve a marriage, after the cooling off period, if there were no chances of reunion.

Stating that obtaining a visa to countries such as the United States was a herculean task, the judge said those who had succeeded in getting such visas could not be expected to fly down frequently for the purpose of attending Family Court proceedings by risking their job prospects.

He also said that the Family Courts need not insist upon the parties to appear through video conference only from Indian embassies, consulates or diplomatic missions especially when there was a time lag of more than 12 hours between countries such as the United States and India.

He said such insistence would amount to imposing an onerous condition on the estranged couples seeking divorce on mutual consent especially when the recently introduced Bharatiya Nagarik Suraksha Sanhita (BNSS) permits conduct of even criminal trial through electronic mode. “Virtual proceedings provide an opportunity to modernise the system by making it more affordable and citizen friendly and enabling the aggrieved to access justice from any part of the world. Thus, the Family Courts must ensure that such a system of conducting the proceedings through video conferencing is put to usage,” he said.

The orders were passed while dealing with a batch of three revision petitions. The first revision had been filed by a woman employed in the United States. She had got married in Chennai in 2016 and went to Washington where differences arose between the couple in 2021 leading to irretrievable breakdown of marriage. They decided to part ways on mutual consent. Hence, she flew down to Chennai in January 2023 to file the divorce petition. Her estranged husband could not travel due to issues in obtaining visa and hence he executed a power of attorney in favour of his father and sought permission to appear through video call.

In the meantime, the petitioner too had to return to the U.S. in order to save her job and hence she filed necessary applications before the Family Court seeking multiple reliefs such as appointing her mother as her power agent, seeking permission to appear through video call and seeking the court’s nod to be assisted by a legal counsel.

However, the Family Court returned all the applications and insisted that the statements of the parties could be recorded only if they appear through video call from the Indian consulate. Though the diplomatic mission in San Francisco was willing to assist, the time lag between the two countries ended up being a problem, she said. Since there was a difference of more than 12 hours between the two countries, she requested the Family court to take up her case at least at 10 a.m. Indian Standard Time but the family court rejected the request by citing that the court working hours begin only at 10.30 a.m., the petitioner said.

Similarly, another couple, also from the United States, complained that the Principal Family Court in Chennai was insisting upon joining the court proceedings through video conference only from the Indian Embassy even after the High Court issued a specific direction to permit their appearance through video call.

The third couple from Auckland in New Zealand said they had filed a petition for divorce on mutual consent through their siblings, appointed as power of attorneys, but the Family Court refused to number the case on the ground that either of the parties must appear in person while submitting the petition.

Published - October 23, 2024 09:10 pm IST