# Ankit Agrawal v. Smt. Monika Agrawal

- **Citation:** (2025) 1 ILRA 377
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-20
- **Case number:** Matters Under Article 227 No. 7309 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankit-agrawal-v-smt-monika-agrawal-52860
- **Pages:** 7

## Headnote

Civil Law-The Hindu Marriage Act, 1955Section 13B - The Constitution of India,
1950-Article 227--- Petitioner residing at
United St.s of America, therefore, he could not
378 INDIAN LAW REPORTS ALLAHABAD SERIES
personally present to file the petition. However
petitioner ensured his presence through virtual
mode where he verified the identity of his
wife and his special power of attorney
holder. Petitioner was not in a position to
come back to India in order to pursue his
petition as he is currently employed in a
company based in United St.s of America,
therefore, he has preferred to move an
application which was rejected--- There is no
dispute on the point that during the course
of time, there is lot of technological
development and there are so many mode of
virtual appearance i.e. skype, video calling
etc., therefore, application for appearance
before the Court through virtual mode
cannot be rejected---Impugned order set
aside----Directions issued to the learned
court below to permit the petitioner to
appear through video conferencing or any
other electronic mode and be allowed to
participate in further proceeding. (Para 9, 14
& 17)

Petition allowed. (E-15)

List of Cases cited:

## Text

1 All. Ankit Agrawal Vs. Smt. Monika Agrawal
377

21. We have already discussed
about the importance of ensuring judicial
discipline and the same has also been
upheld by various judgment of this Court in
Central
Board
of
Dawoodi
Bohra
Community v. State of Maharashtra, this
court has summed up the legal position of
rules of judicial discipline as follows:

12. ... (1) The law laid down by
this Court in a decision delivered by a
Bench of larger strength is binding on any
subsequent Bench of lesser or coequal
strength.

(2) A Bench of lesser quorum
cannot disagree or dissent from the view of
the law taken by a Bench of larger quorum.
In case of doubt all that the bench of lesseer
quorum can do is to invite the attention of the
Chief Justice and request for the matter being
placed for hearing before a Bench of larger
quorum than the Bench whose decision has
come up for consideration. It will be open
only for a Bench of coequal strength to
express an opinion doubting the correctness
of the view taken by the earlier Bench of
coequal strength, whereupon the matter may
be placed for hearing before a Bench
consisting of a quorum larger than the one
which pronounced the decision laying down
the law the correctness of which is doubted"

(Emphasis added)

10. Thus, if a bench of same strength
comes to conclude that earlier co-ordinate
Bench had either ignored a particular
provision of law or has failed to properly
appreciate the same, it has only option to
refer it to a larger Bench. It, in propriety
and to maintain judicial discipline can not
take a different view altogether.

11. Thus, since, the small cause suit in
the matter of unwritten agreement between
the parties under Section 15 of the
Provincial Small Causes Courts Act have
been made applicable by the U.P.Civil
Laws (Amendment) Act, 1972 with the
Presidential assent, I hold the suit to be
maintainable on this count in view of the
law laid down also by this Court also in the
case of Amit Gupta (supra).

12. Thus, in view of the above, I do
not subscribe to the view taken by the
Judge Small Causes regarding applicability
of Act No. 16 of 2021 only with effect
from 24.08.2021, I still hold the small
causes suit filed by the landlord to be
maintainable before the Judge Small
Causes.

13.
Hence,
I
decline
to
grant
interference with the suit proceedings.

14.The revision application on this
count, therefore, stands dismissed.
----------
(2025) 1 ILRA 377
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 7309 of 2024

Ankit Agrawal ...Petitioner
Versus
Smt. Monika Agrawal ...Respondent

Counsel for the Petitioner:
Paritosh Joshi, Raghav Dev Garg, Sr.
Advocate

Counsel for the Respondent:
Amrit Shanker Dubey

Civil Law-The Hindu Marriage Act, 1955Section 13B - The Constitution of India,
1950-Article 227--- Petitioner residing at
United St.s of America, therefore, he could not
378 INDIAN LAW REPORTS ALLAHABAD SERIES
personally present to file the petition. However
petitioner ensured his presence through virtual
mode where he verified the identity of his
wife and his special power of attorney
holder. Petitioner was not in a position to
come back to India in order to pursue his
petition as he is currently employed in a
company based in United St.s of America,
therefore, he has preferred to move an
application which was rejected--- There is no
dispute on the point that during the course
of time, there is lot of technological
development and there are so many mode of
virtual appearance i.e. skype, video calling
etc., therefore, application for appearance
before the Court through virtual mode
cannot be rejected---Impugned order set
aside----Directions issued to the learned
court below to permit the petitioner to
appear through video conferencing or any
other electronic mode and be allowed to
participate in further proceeding. (Para 9, 14
& 17)

Petition allowed. (E-15)

List of Cases cited:

1. Amardeep Singh Vs Harveen Kaur; (2017) 8
Supreme Court Cases 746

2. Shilpa Chaudhary Vs Principal Judge & ors.;
2016 (4) ADJ 262.

3. Aditya Jagannath & ors.; 2021 (1) HLR 201
(M.F.A. No. 4453 of 2020 (FC)

(Delivered by Hon'ble Neeraj Tiwari, J.)

1.
Heard
learned
counsel
for
petitioner.

2. On 05.07.2024, this Court has
issued notice to respondent and as per
Office report dated 25.07.2024, notice has
been served upon the respondent no.
22.07.2024, but even after service of
notice, no one has turned up on her behalf,
therefore, Court is proceeded to decide the
case on merits.

3. Present petition has been filed
seeking following reliefs:-

"i. Issue any order or direction,
setting aside the dated 16th of May 2024
passed by the Ld. Principal Judge, Family
Court, Firozabad, in H.M.P. No. 508 of
2023 ( Ankit Agrawal vs. Monika Agrawal)
under Section 13-B of Hindu Marriage Act.

ii. Issue any order or direction
upon the Court of Ld. Principal Judge,
Family Court, Firozabad, to exempt the
petitioner's
physical
presence
in
the
proceedings under section 13B of the
Hindu Marriage Act, which is registered as
H.M.P. No. 508 of 2023 (Ankit Agrawal
vs. Monika Agrawal) and the petitioner
may be allowed to participate in the further
proceedings,
including
any
mediation
conducted by the court, either virtually or
through its special power of attorney
holder."

4. Brief facts of the case are that
marriage of petitioner and respondent was
solemnized on 25.07.2015 as per Hindu
Rites and Rituals. Till 2018, petitioner was
working as Computer Engineer in Noida
and subsequently, petitioner along with
respondent shifted to United States of
America. In due course of time, some
differences took place between the parties
leading to initiation of criminal proceeding
as well as proceeding under the provisions
of Domestic Violence Act against the
petitioner. Lastly, in order to give logical
conclusions to the aforesaid proceedings, a
memorandum of understanding/settlement
dated 06.05.2023 was entered between the
petitioner, through his special power of
attorney holder and the respondent wherein
it was decided between the parties to file a
petition under section 13B of the Hindu
Marriage Act before family court at
Firozabad for divorce by mutual consent. It
1 All. Ankit Agrawal Vs. Smt. Monika Agrawal
379
was also resolved between the parties that
respondent shall not pursue the criminal
proceeding against the petitioner and his
family members. Consequently, a petition
under section 13B of Hindu Marriage Act
was filed by the petitioner through its
special power of attorney holder before the
family court at Firozabad on 06.05.2023.
The said petition was registered as H.M.P.
No. 508 of 2023.

5. Principal Judge, Family Court,
Firozabad has decided to proceed with
mediation in the matter, but as the
petitioner was residing at United States of
America, therefore, he could not personally
present to file the petition. However
petitioner ensured his presence through
virtual mode where he verified the identity
of his wife and his special power of
attorney holder. Petitioner was not in a
position to come back to India in order to
pursue his petition as he is currently
employed in a company based in United
States of America, therefore, he has
preferred to move an application dated
09.05.2023. After considering the said
application, Principal Judge, Family Court,
Firozabad has rejected the same vide
impugned order dated 16.05.2024.

6. Learned counsel for petitioner
submitted that similar dispute arising out of
Section 13-B of Hindu Marriage Act was
came up before the Apex Court in the
matter of Amardeep Singh vs. Harveen
Kaur; (2017) 8 Supreme Court Cases 746,
in which Apex Court has taken a clear cut
view that Court can also use the medium of
video conferencing and also permit genuine
representation of the parties through close
relations such as parents or siblings.

7. He next submitted that in light of
judgment given by the Apex Court,
rejection of application of petitioner is bad
and impugned order dated 16.05.2024 is
liable to be set aside.

8. I have considered submissions
advanced by counsel for petitioner and
perused the records as well as judgments
occupying the field.

9. There is no dispute on the point that
during the course of time, there is lot of
technological development and there are so
many mode of virtual appearance i.e.
skype,
video
calling
etc.,
therefore,
application for appearance before the Court
through virtual mode cannot be rejected.
'

10. This issue was also before this
Court in the matter of Shilpa Chaudhary
vs. Principal Judge and Ors.; 2016 (4)
ADJ 262. Relevant paragraph nos. 1, 16,
17, 18, 19 & 20 of the said judgment are
being quoted below:-

"1. The applicant and the second
respondent contracted marriage as per
hindu rites and custom on 20 November
2010. In August 2013 a joint petition under
Section 13B of the Hindu Marriage Act,
1955 was instituted before the Family
Court, at Muzaffarnagar, seeking divorce
on mutual consent. The petition being Case
No. 1149 of 2014 (Smt. Shilpa Chaudhary
vs. Vikram Singh). Though dates were
fixed by the Court, however, the matter
could not be taken for hearing, finally the
applicant left the country for Boston, USA,
for pursuing her carrier. The applicant
executed power of attorney in favour of her
mother for parivi and to enter into a
compromise for dissolution of the marriage
before the Family Court. On 28 November
2015 applicant filed an application (11Ka)
through her counsel and prayed for
decision/disposal of the case, but by the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order dated 17 December 2015
the application was rejected.

16. Increasingly Family Courts
have been noticing that one of the parties is
stationed abroad. It may not be always
possible for such parties to undertake trip to
India, for variety of good reasons. On the
intended day of examination of a particular
party, the proceedings may not go on, or
even get completed, possibly, sometimes
due to pre- occupation with any other more
pressing work in the Court. But, however,
technology, particularly, in the Information
sector has improved by leaps and bounds.
Courts in India are also making efforts to
put to use the technologies available. Skype
is one such facility, which is easily
available. Therefore, the Family Courts are
justified in seeking the assistance of any
practicing lawyer to provide the necessary
skype facility in any particular case. For
that purpose, the parties can be permitted to
be represented by a legal practitioner, who
can bring a mobile device. By using the
skype technology, parties who are staying
abroad can not only be identified by the
Family Court, but also enquired about the
free will and consent of such party. This
will enable the litigation costs to be
reduced greatly and will also save precious
time of the Court. Further, the other party
available in the Court can also help the
Court in not only identifying the other
party, but would be able to ascertain the
required information.

17. Reliance was placed on a
decision rendered by Calcutta High Court
in Amitabh Bagchi vs. Ena Bagchi10
wherein, the Court relying upon Dr. Praful
(supra) held that "presence" does not
necessarily mean actual physical presence
in the Court. Section 3 of the Indian
Evidence Act provides that evidence means
and includes all statements which the Court
permits or requires to be made before it by
witnesses, in relation to the matters of fact
under enquiry; evidence would, therefore,
include videoconferencing which apply in
all cases and not necessarily in criminal
matters.

18. Then under Order 18 Rule
4(3) of the amended Code of Civil
Procedure, presence in the Court does not
necessarily mean physical presence. Rule
4(3) provides for recording evidence either
by writing or mechanically in presence of
the judge.

19. The Karnataka High Court in
Twentieth Century Fox Films Corporation
vs. N.R.I. Film Production Associates (P)
Limited11 held that mechanical process
includes the electronic process both for the
Court and Commissioner. Those are
empowered to adopt the mode of evidence
as per the amended Evidence Act.

20. Dispensation of justice entails
speedy justice and justice rendered with
least inconvenience to the parties as well as
to the witness. If a facility is available for
recording
evidence
through
videoconferencing, avoids any delay or
inconvenience to the parties such facilities
should be resorted to. There is no
requirement that the witness must be
required to come to court and depose in the
physical presence in the court. "

11. Apex Court in the matter of
Amardeep
Singh
(Supra)
has
also
considered the issue of video conferencing.
Relevant paragraph nos. 20 & 21 are being
quoted below:-

"20. Since we are of the view that
the period mentioned in Section 13B(2) is
not mandatory but directory, it will be open
to the Court to exercise its discretion in the
facts and circumstances of each case where
there is no possibility of parties resuming
1 All. Ankit Agrawal Vs. Smt. Monika Agrawal
381
cohabitation and there are chances of
alternative rehabilitation.

21. Needless to say that in
conducting such proceedings the Court can
also use the medium of video conferencing
and also permit genuine representation of
the parties through close relations such as
parents or siblings where the parties are
unable to appear in person for any just and
valid reason as may satisfy the Court, to
advance the interest of justice."

12. Similar controversy was also came
up before the High Court of Karnataka in
the matter of Aditya Jagannath and Ors.;
2021 (1) HLR 201 (M.F.A. No. 4453 of
2020 (FC) in which facts are also identical
to this case. Relevant paragraph nos. 16 to
20 of the said judgment are being quoted
below:-

"16. In recent times, we find that
the parties who seek for dissolution of their
marriage by a decree of divorce by mutual
consent do so after long negotiation and
discussion, some times they, being located
at different parts of the globe, through
skype, telephonically or use of other forms
of technology, such as whatsapp calls,
video conferencing etc. On account of the
parties residing in different parts of the
country or across the globe and owing to
constraints of job or other constraints, such
as illness etc., it may not be possible for
both parties to sign and verify the pleadings
and
jointly present
the
petition
for
dissolution of their marriage by mutual
consent before the Court of Law. This is so
in the instant case. In such circumstances,
one of the parties to the petition may avail
of the facility of appointing a Power of
Attorney/agent, in whom the party has full
trust and confidence to represent her or him
in a proceeding to be filed as in the instant
case before the Family Court or any other
Court seeking matrimonial or any other
relief. Therefore, the provisions of the
various enactments must be harmoniously
read and interpreted, so as to make it
conducive for availing or taking recourse
through appointment of a Power of
Attorney holder, to represent a party in a
proceeding. This is particularly, as in the
instant case, where parties are seeking
dissolution of their marriage by a decree of
divorce by mutual consent. Moreover, in
such cases, a party can carefully think over
the matter and appoint a person in whom
the party would have full trust and
confidence to be as her or his Power of
Attorney holder. It is on the strength of
such a document of Power of Attorney that
the Power of Attorney holder would
represent a party to jointly file a petition for
dissolution of their marriage through
mutual consent on behalf of the executor or
Power of Attorney. The Family Court may
insist on satisfying itself that indeed the
parties have an intention that they should
seek a decree of divorce by mutual consent
and in order to fully satisfy itself, the Court
may, apart from examining the Power of
Attorney holder representing any party,
also through video conferencing, (which is
now widely being used on account of the
Covid-19 pandemic), examine the parties
including the party who is represented
through the Power of Attorney holder. That
merely because one of the parties would
file the petition seeking dissolution of
marriage by mutual consent jointly with the
other party, through a Power of Attorney,
one cannot ignore the fact that the Court
must satisfy itself about the genuineness of
the petition filed by the parties seeking
dissolution of their marriage by a decree of
divorce by mutual consent irrespective of
whether it is filed through a Power of
Attorney. In fact, the filing of such a
petition is an exception to what has been
382 INDIAN LAW REPORTS ALLAHABAD SERIES
stated in Section 23 of the Act. Even so, the
Court ought not to be pedantic but must
apply a flexible procedure which is in
accordance with law and not a procedure,
but not one which is incongruent in law.

17. In fact, recently, the Hon'ble
Supreme Court in the case of Amardeep
Singh vs. Harveen Kaur (2017) 8 SCC 746
while considering Section 13B(2) of the
Act, which stipulates a cooling off period
of six months which is also a period of
locus poenitentiae, after filing a petition of
divorce under Section 13B(1) of the Act, so
as to give an opportunity to the parties to
rethink over the decision and thereafter, to
confirm their decision six months later, has
made the said provision less rigid and more
pro-litigants by bearing in mind the
changed circumstances and peculiarities of
the case. Nevertheless, in the said case, it
has been observed that the period of six
months should be waived owing to the
circumstances of the particular case, the
exigencies of the situation and bearing in
mind the interest of the parties so that
justice would be subserved in the matter. In
this regard, the Hon'ble Supreme Court has
observed that the period mentioned in
Section 13B(2) could be construed to be as
directory and not mandatory and it would
be open to the Court to exercise its
discretion in the facts and circumstances of
each case, where there are no possibilities
of parties to reconcile, cohabit and there are
no chances of alternative rehabilitation. In
Paragraph No.21 of the said judgment, the
Hon'ble Supreme Court has also observed
as under:-

"Needless
to
say
that
in
conducting such proceedings the court can
also use the medium of videoconferencing
and also permit genuine representation of
the parties through close relations such as
parents or siblings where the parties are
unable to appear in person for any just and
valid reason as may satisfy the court, to
advance the interest of justice."

18. A reading of the above would
clearly indicate that the Hon'ble Supreme
Court has also made it flexible in the
context of representation of the parties by
their close relatives, partners or siblings or
any other person in whom they have
complete trust to be appointed as a Power
of Attorney holder. In fact, as already
noted, the Court can always satisfy itself
about the genuineness of the intention of
the parties who approach the Court either
by themselves or through a Power of
Attorney
holder
by
way
of
video
conferencing, so that any doubts about the
genuineness of the petition being filed
before the Court is removed.

19. On a perusal of the aforesaid
observations of the Hon'ble Supreme Court,
it is clearly permissible for the parties to be
represented by their partners or siblings in a
proceeding filed under Section 13B(1) of
the Act or any other similar provision in
any other enactment, which provides for
dissolution of marriage by a decree of
divorce by mutual consent.

20. In the circumstances, we find
that in the instant case Family Court ought
to have permitted the father of appellant
No.2, for signing and verifying the
pleadings as her Power of Attorney holder
and to represent her in the proceedings.
Moreover, for the sake of satisfying and
genuineness of the petition, the Family
Court could always resort to video
conferencing through the medium of
which, both the parties could appear apart
from the Power of Attorney holder of the
second appellant appearing for her, so as to
completely
satisfy
itself
about
the
genuineness of the petition filed by the
parties just as presently in this appeal, the
appellants have both appeared through
video conferencing, first appellant from
1 All. Ajit Singh Yadav Vs. Smt. Neelam Yadav
383
Bengaluru and the second appellant from
Toranto, Canada. In this regard, we can
also briefly advert to the decisions relied
upon
by
the
learned
counsel
for
appellants."

13. Now coming to the present case.
Facts of this case are squarely similar to the
facts of the judgments cited above, therefore,
this Court has no reason to have a different
opinion. It is required on the part of Court to
permit the petitioner to appear through virtual
mode as prayed.

14. Therefore, under such facts of the
case as well as law laid down by the Courts,
impugned order dated 16.05.2024 is bad and
hereby set aside.

15. Writ petition is accordingly allowed.

16. No order as to costs.

17. Principal Judge, Family Court,
Firozabad is directed to permit the petitioner
to appear through video conferencing or any
other electronic mode and be allowed to
participate in further proceeding.

18. It is open for the Principal Judge,
Family Court, Firozabad to verify the identity
of petitioner by the respondent while he is
appearing through electronic mode.
----------
(2025) 1 ILRA 383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 12692 of 2024

Ajit Singh Yadav ...Petitioner
Versus
Smt. Neelam Yadav ...Respondent

Counsel for the Petitioner:
Upendra Nath Yadav

Counsel for the Respondent:

Civil Law-The Hindu Marriage Act, 1955Section 13B(20) -The Constitution of
India, 1950-Article 227---Cooling off the
period of six months as provided in Section 13B(2) is not mandatory but directory---In the
present case, both the parties are living
separately since 20.12.2021 and also filed
divorce petition jointly. Apart that, earlier
attempts of mediation was failed, but later on,
in another proceeding, mediation took place
between the parties with agreement to dissolve
the marriage and withdraw the criminal cases
pending between them. Therefore, under such
facts, there is no occasion to direct the
petitioner to wait for cooling off period as
provided in Section 13-B(2) ---Impugned order
set aside---Principal Judge, Family Court, is
directed to proceed with the divorce petition
waiving off the cooling period of six months as
provided in Section 13-B(2) (Para 9 & 13)

Petition allowed. (E-15)

List of Cases cited:

Amardeep Singh Vs Harveen Kaur; (2017) 8
Supreme Court cases 746

(Delivered by Hon'ble Neeraj Tiwari, J.)

1.
Heard
learned
counsel
for
petitioner.

2. Present petition has been filed
seeking following reliefs:-

"i. Set aside the impugned order
dated 11.09.2024 passed by the Principal
Judge, Family Court, Ghazipur in Hindu
Marriage Petition No. 551 of 2024, (Ajit
Singh Yadav vs. Smt. Neelam Yadav)