Naveen A. Kumar s/o R. Anil Kumar v. Abhitha Ajithan

**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** **3** 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** **4** 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** **5** 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** **6** 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** **7** 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** **8** ## **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.**