HC: Consent in divorce plea using modern tech legal

Mumbai: Ruling that the use of technology to get submissions of one of the parties for divorce by mutual consent under the Hindu Marriage Act cannot be termed “illegal”, the Bombay high court has set aside a family court order.

The court was hearing an appeal against non-registration of a divorce application on grounds that one of the parties was away in the US and did not present herself in court to file her consent. The high court said that the family court could have taken consent using Skype or any other modern technology, and directed the family court to further divorce proceedings.

Arguing for the petitioner’s wife, advocate Samir Vaidya said that his client and her husband had been living apart for a year and hence, decided to dissolve the marriage as per the law by mutual consent. However, when the divorce application came up for affirmation of consent by both parties, his client, who was working in the US, could not be present. Upon not finding the second party, the family court, without paying any heed to her advocate, rejected the application.

Advocate Vaidya said, “We also argued that the advocate was an agent of the party as he had the power of attorney to act on her behalf in the divorce proceedings, but the family court took no heed.”

After hearing the averments, the bench of Justice Bharati Dangre said, “Due to globalisation and since a noticeable number of educated young people are crossing Indian borders, it is not possible to remain present. This court had observed that there is no illegality in solving such difficulties by adopting novel and available ways of technology and communication.” She said that there was no legal lacunae in filing the petition through a registered power of attorney and the said petition needed to be accepted by setting aside the impugned order of the family court.

Quashing and setting aside the family court order, the bench said, “The family court will not insist on the presence of parties before the court and will arrange for consent terms to be recorded either through Skype or by adopting any other technology and proceedings contemplated under section 13B of the Hindu Marriage Act in the time schedule specified therein.”