Divorce in an Uttar Pradesh Court While Living Abroad: Mutual Consent, Video Appearance and Power of Attorney

On 20 January 2025 the Allahabad High Court set aside an order of the Principal Judge, Family Court, Firozabad. A husband working in the United States had filed a petition for divorce by mutual consent through his special power of attorney holder, and when the Family Court fixed the case for mediation he asked to join by video. The Family Court said no. Justice Neeraj Tiwari, in Ankit Agrawal v. Monika Agrawal (2025:AHC:9349), held that with today's means of virtual appearance such a request "cannot be rejected", and directed the Family Court to let him appear by video conferencing or any other electronic mode. Many families in Uttar Pradesh will recognise the situation: the marriage is over, both spouses agree on that, and one of them lives in another country.

This article makes two points, on the law as it stands on 12 November 2026. First, a Hindu couple can usually obtain a divorce by mutual consent from a Family Court in Uttar Pradesh without the spouse abroad coming to India for every date: the petition can be filed through a power of attorney holder, the spouse can appear by video, and the six-month wait can in suitable cases be waived. Second, each of these is a matter of the court's discretion and not a right, and the two places where cases most often stall are the mediation stage and the power of attorney document itself. The second point is the one that decides how many flights a divorce costs.

A word on scope. This article deals with Section 13B of the Hindu Marriage Act, 1955, which governs Hindus, Sikhs, Jains and Buddhists. A marriage registered under the Special Marriage Act, 1954 has a parallel provision in Section 28 of that Act. Christian marriages are dissolved by mutual consent under Section 10A of the Divorce Act, 1869, which has a different period of separation, and Muslim marriages follow their own law. Those are not covered here.

Which Court in Uttar Pradesh

Section 19 of the Hindu Marriage Act lists the district courts where a petition may be presented: where the marriage was solemnised, where the respondent resides, where the parties last resided together, and, if the wife is the petitioner, where she resides on the date of filing. Clause (iv) adds one more: where the petitioner resides, if the respondent is at that time residing outside the territories to which the Act extends. In a district that has a Family Court, the petition goes to that court.

For a mutual consent petition both spouses are petitioners, so the choice is usually easy. If the marriage took place in Prayagraj, or the couple last lived together in Lucknow, or the wife now lives with her parents in Kanpur, a Family Court at any of those places will ordinarily have jurisdiction. The spouse abroad does not need an Indian address of his own.

What Section 13B Requires

Section 13B(1) requires the petition to be presented by both spouses together, stating three things: that they have been living separately for a period of one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. In Sureshta Devi v. Om Prakash (1991) 2 SCC 25, the Supreme Court explained that "living separately" means not living as husband and wife. It is about the relationship, not the address.

Section 13B(2) then sets the timetable. The spouses make a second, joint motion not earlier than six months and not later than eighteen months after the petition was presented. If the petition has not been withdrawn, the court, after hearing the parties and making such inquiry as it thinks fit, must be satisfied that a marriage was solemnised and that the averments in the petition are true. Only then does it pass the decree.

Sureshta Devi settled one more point, and it matters more to an NRI than to anyone else. Consent must continue until the decree is passed. Either spouse may withdraw it at any time before then, and if one does, the Family Court cannot grant a divorce under Section 13B. A husband who has already signed a settlement, paid part of the alimony and booked no further travel can find, at the second motion, that there is nothing left to decree.

The Six-Month Wait

For many years the six months between the two motions was treated as fixed. In Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, decided on 12 September 2017, the Supreme Court held that the period in Section 13B(2) is directory, not mandatory, and that a Family Court may waive it. The Court asked the Family Court to consider whether the six months, together with the one year of separation, had already passed before the first motion; whether mediation and conciliation had been tried and had failed; whether the parties had genuinely settled their differences, including alimony and the custody of any child; and whether waiting would only prolong their agony. The application for waiver may be filed one week after the first motion, with reasons.

Family Courts then began reading those four questions as a checklist. In Amit Kumar v. Suman Beniwal (2023) 17 SCC 648, decided on 11 December 2021, the Supreme Court corrected that reading. The Amardeep Singh factors are illustrative, not exhaustive, and the real question is whether there is any chance of the marriage being saved.

The Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023 INSC 468, 1 May 2023) went further for itself. It held that the Supreme Court, under Article 142 of the Constitution, may dispense with the period and procedure of Section 13B altogether, and may dissolve a marriage that has irretrievably broken down. That power belongs to the Supreme Court alone and is exercised in a matter already before it. A Family Court in Uttar Pradesh still works within Section 13B, with Amardeep Singh and Amit Kumar as its guide.

For a spouse abroad, the waiver is often the difference between one visit and two. Where it is granted soon after the first motion, the second motion can follow within weeks.

Filing Through a Power of Attorney

Section 13B speaks of a petition presented "by both the parties". Read literally, that suggests both spouses must sign and appear. The Lucknow Bench of the Allahabad High Court did not read it that way. In Navneet Kaur v. Principal Judge, Family Court, Lucknow (Misc. Single No. 881 of 2017, decided on 31 May 2018), the husband lived abroad and was represented by his father under a special power of attorney. Justice Rakesh Srivastava held that personal presence of the parties at the second motion is not necessary, that an attorney may act for a party in a matrimonial case on the principal's instructions, and directed the Family Court to decide the matter without insisting on personal appearance (paragraphs 24 and 29).

The same judgment added a caution. Where a spouse appears through an attorney, the court should be more careful before it records its satisfaction that consent is free, and an affidavit of the absent spouse bearing his photograph is one way to give it that assurance. The attorney carries the papers; he does not supply the consent. The Supreme Court in Amardeep Singh made a similar allowance from the other direction, permitting genuine representation through close relations such as parents or siblings where a party cannot appear in person for a valid reason.

The Document Itself

Here the second difficulty begins, and it begins in the country where the spouse lives. Section 84 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 85 of the Indian Evidence Act) lets a court presume that a power of attorney was duly executed if it was executed before and authenticated by a notary public, a court, judge or magistrate, an Indian consul or vice-consul, or a representative of the Central Government.

The words "notary public" do not cover every notary in the world. In Margret @ Thankam v. Joseph Mathew Chettupuzha (2025:KER:56880, decided on 31 July 2025), the Kerala High Court refused to accept a power of attorney notarised in St. Louis County, Missouri. Under Section 14 of the Notaries Act, 1952, the notarial acts of a foreign notary are recognised in India only where the Central Government has notified that country as a reciprocating country, and that had not been shown. The court allowed the plaintiff to file a fresh, properly executed power of attorney, but the case lost time over a document.

That judgment was given in a property suit in Kerala, and it does not bind a Family Court in Uttar Pradesh. The reasoning, however, rests on central statutes that apply equally in Firozabad or Varanasi, and an opposing lawyer may raise it. This research found no Allahabad High Court decision on whether an apostille alone answers the point. The route that avoids the question altogether is to execute the power of attorney before the Indian embassy or consulate in the country of residence, which falls squarely within Section 84. The document will also need to be stamped as the law in Uttar Pradesh requires once it reaches India.

A special power of attorney limited to the divorce proceedings, naming the court, the parties and the acts permitted, is easier for a Family Court to accept than a general one.

Appearing by Video

Amardeep Singh did not stop at waiver. It said that in conducting these proceedings the court can also use the medium of video conferencing. Ankit Agrawal applies that to an Uttar Pradesh Family Court. The Allahabad High Court held that the Firozabad court's refusal was "bad", directed it to permit the husband to appear by video conferencing or any other electronic mode and to take part in the further proceedings, and left it open to the Family Court to verify his identity through the wife while he appeared on screen.

So for the hearing of the motions, the position in Uttar Pradesh is reasonably clear. A spouse abroad can ask to be heard by video, can confirm on screen that his consent is free and continuing, and a refusal without good reason is open to correction by the High Court under Article 227 of the Constitution.

The Hard Part: Mediation and Reconciliation

The difficulty lies one step earlier. Section 9 of the Family Courts Act, 1984 obliges a Family Court to make efforts for settlement, and Section 23(2) of the Hindu Marriage Act asks every court to make an endeavour at reconciliation before granting relief. Most Family Courts in Uttar Pradesh therefore send even a mutual consent petition to mediation or counselling. Can that stage be done by video?

Let us take the case against it at its strongest. A month after Amardeep Singh, a three-judge Bench decided Santhini v. Vijaya Venketesh (2018) 1 SCC 1 on 9 October 2017. The majority overruled an earlier two-judge decision that had encouraged video hearings in transfer petitions, and laid down in paragraph 58 that video conferencing cannot be directed in a transfer petition; that once settlement efforts have failed, the Family Court may allow it on a joint application or on the consent of both parties; and that, after settlement fails, the Family Court may also direct it on its own if that will serve the cause of justice. On that reading, video is for the stage after reconciliation, not for reconciliation itself. The Andhra Pradesh High Court read Santhini exactly so in Mohammad Razik Shaik v. Sufia Sultana Bano Mohammad (2025 SCC OnLine AP 314, decided on 28 January 2025), holding that video conferencing is not permissible for reconciliation in matrimonial matters before a Family Court.

The answer lies in what Santhini was about. The majority was concerned with contested disputes, where one spouse was asking for a transfer of the case and the other was resisting, and where the fear was that a screen would weaken the court's effort to bring two unwilling people together. In a Section 13B petition both spouses have already agreed that the marriage is over, both have signed the same petition, and both are asking for the same order. Santhini itself treats the joint consent of the parties as the key that opens video conferencing. The Gujarat High Court took this view in March 2026 in Palakben Ravi Luni v. None (2026:GUJHC:17292), permitting a husband abroad to join conciliation in a mutual consent case by video. In Ankit Agrawal, too, the Family Court had fixed the case for mediation when it refused the husband's request, and the High Court directed that he be permitted to take part in the further proceedings by electronic mode.

That is the better view, but it is not yet settled. No decision of the Allahabad High Court has squarely resolved the tension between Santhini and Amardeep Singh at the mediation stage, and Family Courts across the State do not all take the same approach. A spouse abroad should plan for the possibility that one court will insist on a single personal appearance for counselling, and should make the request for video participation early, in writing, and jointly with the other spouse.

The Settlement and the Risk of Withdrawal

Because consent can be withdrawn until the decree, the settlement is the real document in a mutual consent divorce. It usually deals with permanent alimony and its instalments, the return of jewellery and articles, custody and visitation of any child, and the withdrawal or quashing of pending cases such as a dowry FIR, a maintenance application or a domestic violence complaint. The quashing of a dowry case on settlement is discussed in our separate article on relatives named in a dowry FIR.

The terms are best recorded before the Family Court or the mediation centre at the first motion, with the payments arranged so that the larger part falls due at or after the second motion. That arrangement does not make the consent irrevocable; Sureshta Devi does not allow that. It does mean that if consent is withdrawn, the spouse abroad has not paid for a decree he cannot have.

When the Other Spouse Will Not Agree

If there is no agreement, the case becomes a contested petition under Section 13 of the Hindu Marriage Act, on a ground such as cruelty or desertion, and the position of a spouse abroad changes. A power of attorney holder can file and conduct the case, but he cannot give evidence in place of the spouse on matters within the spouse's personal knowledge: Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. (2005) 2 SCC 217, decided on 6 December 2004. In a divorce on cruelty, almost everything that matters is within the spouse's personal knowledge. His own evidence by video is possible under Santhini once settlement efforts have failed, but it is in the Family Court's discretion, and the other side may oppose it.

Irretrievable breakdown is not a ground available to a Family Court. Shilpa Sailesh recognised it as a basis for the Supreme Court's own power under Article 142, to be used with care in a matter already before it, and not as a route either spouse can open by filing directly in the Supreme Court.

Conclusion

A spouse living abroad can, in most cases, end a marriage in an Uttar Pradesh Family Court without spending months in India. The petition can be filed through an attorney (Navneet Kaur), the motions can be heard by video (Ankit Agrawal), and the six months can be waived where the marriage is plainly over (Amardeep Singh, Amit Kumar). None of these is automatic, and each depends on the Family Court being satisfied that consent is real.

Two things decide whether the process runs smoothly. The first is a power of attorney executed in a form an Indian court must accept, preferably before an Indian consulate. The second is the mediation stage, where the law on video participation is still not settled in the Allahabad High Court and Santhini v. Vijaya Venketesh continues to be cited against it. Until that question is answered, the safest assumption is that the spouse abroad may need to be in India once, and that everything else can be arranged around that one visit.