Is a Petition under Rule-33 mandatory for NRIs who executed SPA?

676 votes

From the facts stated, Rule-33 is only a procedural requirement under the respective Family Court/High Court rules and not a substantive condition under Section 13-B of the Hindu Marriage Act. The statute itself does not mandate filing of a separate Rule-33 petition. Therefore, non-filing of such a petition cannot override the statutory right to seek mutual consent divorce. However, practice varies from court to court. In cases where one party is abroad, some courts insist on compliance with local procedural rules, including permission for representation through Special Power of Attorney, to ensure voluntary consent and prevent misuse. Other courts permit appearance through a duly authenticated SPA, video conferencing, or affidavit of consent, depending on facts and judicial discretion. If the SPA is validly executed, notarised/apostilled, and specifically authorises filing and prosecuting the 13-B petition, the court can permit representation without insisting on a separate Rule-33 petition. Where the court raises an objection, the safer course is to comply with the procedural requirement or seek appropriate clarification/relief from the Family Court or supervisory jurisdiction of the High Court. It is advisable to file an application explaining the husband’s residence abroad, submit authenticated documents, and request exemption from personal appearance or permission through video conferencing. Proper drafting and compliance with local procedural rules will help avoid delay and ensure smooth processing of the mutual consent divorce.

Advocate Pavani Kumari LawRato