Naveen A. Kumar vs Abhitha Ajithan
2021 Latest Caselaw 3066 Ker

OP (FC).No.62 OF 2021

                            1

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                            &

           THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                  OP (FC).No.62 OF 2021

AGAINST THE ORDER/JUDGMENT IN OP(DIV) 1711/2020 OF FAMILY
                     COURT,ERNAKULAM


PETITIONER/S:

           NAVEEN A. KUMAR
           S/O. R. ANIL KUMAR, KRISHNA KRIPA,
           KUNNATHUMKARA P. O., EAST OTHERA, THIRUVALLA,
           PATHANAMTHITTA - 689546, PRESENTLY RESIDING T
           TURTON STREET, ASHBURTON, CANTERBURY, SOUTH
           ISLAND, NEW ZEALAND.

           REP. BY POWER OF ATTORNEY HOLDER - R.
           ANILKUMAR, S/O. RAGHAVAN PILLAI, AGED 55
           YEARS, KRISHNA KRIPA, KUNNATHUMKARA P. O.,
           EAST OTHERA, THIRUVALLA, PATHANAMTHITTA -
           689546.

           BY ADVS.
           SRI.B.PRAMOD
           SMT.NAMITHA JYOTHISH

RESPONDENT/:

           ABHITHA AJITHAN
           AGED 21 YEARS
           D/O. AJITHAN, ERNATT HOUSE, KIDANGOOR P.O.,
           THURAVOOR VILLAGE, ANGAMALY,
           ERNAKULAM - 683572.


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC).No.62 OF 2021

                               2


                         JUDGMENT

Dated this the 28th day of January 2021

C.S.DIAS,J.

The original petition is filed under Article 227 of

the Constitution of India, seeking a direction to the

Family Court, Ernakulam to accept Ext.P4 chief

affidavit filed by the power of attorney holder of the

petitioner in-lieu of his chief examination or to

record the evidence of the petitioner via Video

Conference for disposing O.P(Div) No.1711/2020.

2. The concise case of the petitioner in the

original petition is that, the respondent is his wife.

Their marriage was solemnised on 24.5.2018. They

are issueless. As their marriage is irretrievably

broken, they have filed O.P (Div) No.

1711/2020(Ext.P1) before the Family Court ,seeking OP (FC).No.62 OF 2021

dissolution of their marriage by mutual consent, as

provided under Section 13B of the Hindu Marriage

Act. Since the petitioner went to New Zealand to

pursue his higher studies, he had executed a power

of attorney (Ext.P2) in favour of his father. The

petitioner has completed his higher studies and is

now working in a private company, as evidenced by

Ext.P3. The statutory waiting period of six months

as contemplated under Section 13B(2) of the Hindu

Marriage Act has expired. Although the petitioner

filed his chief affidavit (Ext.P4) through his

agent/father, the Family Court has refused to accept

the same. The respondent has no objection in the

same. Due to the Covid-19 pandemic and the travel

restrictions imposed in New Zealand, the petitioner

is unable to travel to India. He had booked air

tickets (Ext.P5), but the flight operation stands

suspended sine die. In the said circumstances, the

petitioner has filed the present original petition. OP (FC).No.62 OF 2021

3. As the direction is being issued only to the

Family Court and as the respondent is the 2 nd

petitioner in Ext.P1 original petition, which is a joint

petition filed by the parties, we have dispensed with

notice to the respondent.

4. It is no longer res-integra, in view of the

categoric declaration of law by this Court in

Mohanan v. Ajitha [2019 (2) KLT 120], Jane

Chakuprakal v. Max George [2017 (1) KLT 784]

and Abdul Salam v. Mariyumma [2007 (1) KLT

713], that there is no legal impediment to permit a

power of attorney holder to institute and contest

proceedings before Family Courts.

5. It is on record that the petitioner has

executed Ext.P2 power of attorney in favour of his

father authorising him to do any act in connection

with the Ext.P1 original petition. Undisputedly, as

evidenced by Exts.P3 and P5, the petitioner is in OP (FC).No.62 OF 2021

New Zealand. It is a known fact that New Zealand

is under lock-down due to the Covid-19 pandemic. In

the said situation, it is impossible for the petitioner

to travel from New Zealand to India, in order to

attend Ext.P1 proceedings before the Family Court.

6. In the totality of the above facts and the

adverse circumstances prevailing across the world

due to the pandemic, and also in light of the

categoric declaration of law in the afore-quoted

decisions, we are of the considered opinion that the

petitioner should be permitted to contest Ext.P1

though his power of attorney holder. The Family

Court may, as laid down by the Hon'ble Supreme

Court in Santhini v. Vijaya Venkitesh [(2018) 1

SCC 1), if it feels necessary, interact with the

petitioner over any virtual platform, in order to

ascertain the willingness of the petitioner for

dissolution of his marriage with the respondent

pursuant to Ext.P1 joint petition. OP (FC).No.62 OF 2021

In the result, in exercise of the supervisory

powers of this Court under Article 227 of the

Constitution of India, we direct the Family Court,

Ernakulam to accept Ext.P4 chief affidavit filed by

the power of attorney holder of the petitioner and

interact with the petitioner over any virtual

platform, if the court feels it necessary, on condition

that the petitioner/his agent or the respondent files

an application to waive the the statutory waiting

period of six months, as laid down by the Hon'ble

Supreme Court in Amardeep Singh v. Harveen

Kaur [2017 (4) KLT 367 (SC)]. The Family Court

shall taking note of the fact that there was an earlier

proceeding between the parties as O.P.

No.1934/2019 and as laid down in Amardeep Singh

(supra) consider such application and then dispose of

O.P.(Div)No.1711/2020, as expeditiously as possible,

at any rate within a period of one month from OP (FC).No.62 OF 2021

the date of receipt of filing an application for waiver

of the statutory period, if not filed, then immediately

after the expiry of the six months period.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

C.S.DIAS, JUDGE

ma/28.01.2021 /True copy/ OP (FC).No.62 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PETITION FOR OP(DIVORCE) NO.1711/2020 DATED 22.09.2020 FIELD BEFORE THE FAMILY COURT, ERNAKULAM.

EXHIBIT P2 TRUE COPY OF THE DEED OF POWER OF ATTORNEY DATED 18.02.2019 BY PETITIONER IS FAVOR OF MR. R. ANIL KUMAR.

EXHIBIT P3 TRUE COPY OF THE OFFER LETTER DATED 22.09.2020 BY THE PETITIONER'S EMPLOYER.

EXHIBIT P4 TRUE COPY OF THE PROOF AFFIDAVIT DATED 10.11.2020.

EXHIBIT P5 TRUE COPY OF THE AIR TICKETS BOUGHT BY THE PETITIONER.