Madras High Court

Ajay Murthy vs Lakshmi Priya on 17 October, 2023

                                                                                      C.R.P.No.3359 of 2023


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 17.10.2023

                                                             CORAM

                          THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                     C.R.P.No.3359 of 2023

                     Ajay Murthy                                                     ... Petitioner


                                                                Vs.


                     Lakshmi Priya                                                   ... Respondent

                                  Civil Revision Petition is filed under Article 227 of the Constitution

                     of India, to quash the Order of Return dated 31.07.2023 passed by the

                     Learned Principal Judge, Family Court, Chennai, in O.P.SR.No.4152 of

                     2023 filed by the petitioner under Section 13(1) (ia) of the Hindu

                     Marriage Act 1955 and to permit the petitioner to present the petition

                     through his duly authorized Power of Attorney Agent (Father).



                                                 For Petitioner : M/s.Subashini
                                                                  For Chennai Law Associates


                                                             ORDER

https://www.mhc.tn.gov.in/judis

C.R.P.No.3359 of 2023

This Civil Revision Petition is filed to quash the Order of Return

dated 31.07.2023 passed by the Learned Principal Judge, Family Court,

Chennai in O.P.SR.No.4152 of 2023 filed under Section 13(1) (ia) of the

Hindu Marriage Act 1955 and permit the petitioner to present the petition

through his duly authorized Power of Attorney Agent.

2. The petitioner and respondent are husband and wife. Their

marriage was solemnized on 21.11.2021 at Aishwarya Mahal,

Arumbakkam, as per Hindu Rites and Customs. After the wedlock, they

lived in the petitioner's father's house at Virugambakkam, Chennai and

thereafter, went to the petitioner's house at United States of America. Due

to dispute between them, they got separated in the year 2023. The

respondent filed a divorce petition in O.P.SR.No.4152/2023 under

Section 13(1) (ia) of the Hindu Marriage Act 1955, before the Principal

Judge, Family Court, Chennai. Since the petition was presented through

the Power Agent of the petitioner, it was returned by the Court below vide

order dated 31.07.2023. Aggrieved by the said order, the petitioner has

filed this revision petition before this Court.

3. The learned counsel for the petitioner submitted that the https://www.mhc.tn.gov.in/judis

C.R.P.No.3359 of 2023

petitioner is residing in U.S. The O.P. was duly signed and apostilled in

the Indian Embassy of U.S, where the petitioner presently resides and

working, and it is only the presentation of the case papers being done by

the petitioner's father as his authorized and registered power of attorney

holder due to the inability of the petitioner to be physically present. The

Learned Principal Judge has mechanically returned the divorce petition

without application of mind.

4. The learned counsel for the petitioner further submitted that, all

the petitions filed under section 13B of the Hindu Marriage Act, are being

duly accepted by the Learned Principal Judge, Family Court, when the

same is being filed by a Power of Attorney Agent. Therefore,

discrimination should not be shown in cases of contested divorce petition.

He also submitted that, the Learned Principal Judge failed to take note of

the fact that the procedures of Civil Procedure Code is applicable to the

Family Court also. Based on the provisions of CPC, a power of attorney

holder can file any petition or application on behalf of his Principal.

Hence, the General Power of Attorney dated 19.07.2023 executed by the

petitioner in favour of his father is valid in CPC and the petitioner's father

is entitled to present the divorce petition duly signed and apostilled by the https://www.mhc.tn.gov.in/judis

C.R.P.No.3359 of 2023

petitioner.

5. In support of his case, the learned counsel for the petitioner has

relied upon the decision of the Hon'ble High Court of Kerala in Mohanan

v. Ajitha and another in [Mat.Appeal.No.470 of 2010 dated

19.03.2019].

6. Heard the learned counsel for the petitioner and perused the

materials on record.

7. The petitioner decided to dissolve the marriage that was held

with the respondent on 21.11.2021. The petitioner and respondent are

living separately since 24.03.2023. The petitioner filed an application for

dissolution of marriage under Section 13(1) (ia) of the Hindu Marriage

Act, through his power of attorney holder (his father) as he is residing

abroad, which was refused by the Learned Principal Judge at Family

Court stating that the party to be present. Hence, this petition.

8. The learned counsel for the petitioner submits that, as per the

https://www.mhc.tn.gov.in/judis

C.R.P.No.3359 of 2023

provisions of CPC, a power of attorney holder can file any petition or

application on behalf of his Principal. Further, in support of his

submission, he rely upon the judgment of the Hon'ble High Court of

Kerala in Mohanan v. Ajitha and another in [Mat.Appeal.No.470 of

2010 dated 19.03.2019].

9. At this juncture, it would useful to refer Order III Rule 1, 2 of

CPC, which reads as under :-

“1. Appearances, etc., may be in person, by recognized agent or by pleader-

Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provide that any such appearance shall, if the Court so directs, be made by the party in person.

https://www.mhc.tn.gov.in/judis

C.R.P.No.3359 of 2023

2. Recognized agent

The recognized agent of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.”

10. In view of the above provisions of CPC, it is made clear that a

pleader can represent on behalf of his party in a suit or proceedings.

11. Now, on perusal of the judgment relied on by the learned

counsel for the petitioner in Mohanan v. Ajitha and another in https://www.mhc.tn.gov.in/judis

C.R.P.No.3359 of 2023

[Mat.Appeal.No.470 of 2010 dated 19.03.2019], it is observed that a

person like the petitioner herein had sought for divorce under Section

13(1)(i) and (ia) of the Hindu Marriage Act 1955 through his power of

attorney holder. In that case, the divorce was not sought on mutual

consent and it was sought on the ground of cruelty. The said petition was

dismissed by the Family Court on the ground that the petition was

presented by power of attorney holder. Challenging the same, the

petitioner filed an appeal before the Division of the Kerala High Court.

The Hon'ble Division Bench, after hearing the petitioner, had allowed his

case by holding as follows :

“This is not a case where divorce is sought on mutual consent, whereas divorce is sought on the ground of adultery and cruelty. Insofar as there is specific provision under the Code of Civil Procedure enabling a petition to be filed through a power of attorney holder, there is nothing wrong in the Family Court entertaining an application even though it is filed through power of attorney holder. The provisions of CPC squarely applies to matters that are entertained by Family Court as well. Therefore, we do not think that the Family Court was justified in rejecting the petition

https://www.mhc.tn.gov.in/judis

C.R.P.No.3359 of 2023

at the fag end of the trial on the ground that it was not maintainable.”

12. Normally, in a petition filed under Section 13B of the Hindu

Marriage Act by the parties on mutual consent, the appearance of the

parties is not necessary and it has been held in various judgments of the

Hon'ble Apex Court as well as the High Courts in different states.

Eventhough, the present divorce petition is not filed on mutual consent,

but filed on the ground of cruelty, the above judgement relied on by the

learned counsel for the petitioner would be applicable to the present case

on hand. Hence, applying the principles laid down in the various

judgment relied on by the learned counsel for the petitioner, this Court is

inclined to allow this petition.

13. Accordingly, the Order of Return dated 31.07.2023 passed by

the Learned Principal Judge, Family Court, Chennai, in O.P.SR.No.4152

of 2023 is quashed. The Learned Principal Judge at Family Court,

Chennai, is hereby directed to receive the divorce petition

O.P.SR.No.4152 of 2023 filed by the petitioner through the power of

attorney and dispose of the same, in accordance with law.