Smitha Thomas Represented By P/A. Holder T.T. Thomas vs Biju Varghese

Pius C. Kuriakose, J.—This original petition under Article 227 is filed by the petitioner before the Family Court, Ernakulam in Divorce O.P. 1804/2009 (now made over to the Muvattupuzha Family Court and renumbered there as seeking a direction to the Family Court, Muvattupuzha to accept the affidavit submitted by the petitioner in lieu of her oral evidence and grant a decree of divorce by a mutual consent as prayed for in Ext. P1 without insisting on the personal presence of the petitioner. On hearing the submissions of Sri. K.C. Eldho, the learned counsel for the petitioner, for admission we issued notice on admission by special messenger to the respondent. He has now entered appearance through Advocate. We called for the lower court records and the records are available. The records will show that for more than six months have elapsed since the petition for dissolution of marriage by mutual consent was filed u/s 10A of the Divorce Act by the parties. The various averments in the above original petition satisfy the requirements of Section 10A. It is not disputed that the petitioner is presently in Australia and insisting upon her coming down to Muvattupuzha for giving oral evidence to prove that she has not withdrawn from the original petition will result in extreme hardship to the petitioner.

The learned counsel for the respondent also would fairly submit that it will suffice if the affidavit of the petitioner, which is already submitted to the Family Court, Muvattupuzha is acted upon by the learned Family Court. The learned counsel''s only submission was that the original power of attorney, on the basis of which the release deed which is mentioned in paragraph 3 of the Divorce O.P. was executed in favour of the respondent, has not been handed over to the respondent. The learned counsel requested that direction be issued for handing over of the original of the power of attorney.

Under the above circumstances, we are of the view that the original petition can be allowed by passing the following directions;

1).The petitioner shall immediately handover the original of the power of attorney, on the strength of which release deed which is mentioned in paragraph 3 of the Divorce O.P. is executed, in favour of the respondent.

2). The Family Court, Muvattupuzha will accept the affidavit of the petitioner already filed before that court in support of the averments in without insisting on the personal appearance and the oral evidence of the petitioner and pass orders considering the original petition favourably.

3) Needful in compliance with the above direction shall be done by the learned Presiding Officer of the Family Court at the earliest and at any rate within one week of receiving a copy of this judgment.

The petitioner through her power of attorney holder and the respondent in person will be present before the Family Court, Muvattupuzha on 1st December 2012.