Section 13 of the family courts act, 1984
c. shah...
(Querist) 19 June 2013
This query is : Resolved
An application of conversion of petition from sec.13(1)(ia) to sec.13B(MCD) was signed and given by parties in family court. First party has given consent in MCD application by appeared in person and the second party has given consent in MCD application by appeared through power of attorney-his father. Now, as per section 13 of the family courts act, 1984, Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae. Thus, the party who has given consent in MCD has to appear in person and not through power of attorney holder. But, here, at the time of conversion and submission of the application, power of attorney holder is appeared behalf of party herself. Now, The Honorable Judge has given order of conversion of petition and written in the order as,” The parties are present and they both agree to convert the matter u/s.13B of H.M.Act to obtain divorce by consent. Hence, the parties are granted permission to convert the petition u/s.13B of H.M.Act. Amendment is carried out.”
Can first party appeal for dismiss the MCD petition in family court u/s.13 of the family courts act, 1984 in family court because the other party was not appear in presence?
ajay sethi
(Expert) 19 June 2013
Conversion of Petition filed under section 13(1)(ia) into a Petition under Section 13B for mutual consent is legally permissible. Thus, there is no legal hurdle into conversion of the Petition into a Petition for mutual consent. The physical presence of both the parties is generally asked and necessary to verify the authenticity of the identity of the parties and consent of the parties. However, there are peculiar circumstances like the case in hand where either of the parties cannot remain present before the Court due to certain practical difficulties i.e. Job, leave, visa etc. due to globalisation noticeable educated young persons are crossing the borders of India and they are taking up jobs outside the country. So some of them can not remain present before the Family Court to give consent in matrimonial matters. There is no illegality to solve such difficulty by adopting novel and available ways. This hurdle can be crossed with the help of advanced technology of communication and new scientific methods. Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent. Even though, the counselling with the Marriage Counsellor can be facilitated by virtual presence. in such a case consent of wife can be obtained through video conferncing by webcam . father can identify his daughter .
ajay sethi
(Expert) 19 June 2013
it is in interest of both parties that divorce be obtained by mutual consent . if you dont want divorce then you can challenge the order passed by FC as the consent of the party has not been verified
Raj Kumar Makkad
(Expert) 19 June 2013
There are plenty of jusgments wherein the parties in the family courts have been permitted to be represented through their POA holders.
