HIGH COURT OF ANDHRA PRADESH

* * * *

CIVIL REVISION PETITION No. 2619 of 2024

Between:

Mohammad Razik Shaik

..... PETITIONER

AND

Sufia Sultana Bano Mohammad

.....RESPONDENT

DATE OF JUDGMENT PRONOUNCED: 28.01.2025

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

_______________________

RAVI NATH TILHARI, J

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CRP No.2619 of 2024

2

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

+

CIVIL REVISION PETITION No. 2619 of 2024

% 28.01.2025

# Mohammad Razik Shaik

….Petitioner

Versus

$ Sufia Sultana Bano Mohammad

....Respondent

! Counsel for the Petitioner: Sri Suryam Gannavarapu

^ Counsel for respondent : Sri S. Lakshminarayana Reddy

< Gist :

> Head Note:

? Cases Referred:

1. 2019 Supreme (AP) 357

2. (2018) 1 SCC 1

3. CRP No.1994/2024 & batch,

Decided on 18.10.2024 Madras HC

4. (2017) 4 SCC 150

5. (2003) 4 SCC 601

6. (2017) 8 SCC 746

7. (2020) 3 SCC 637

8. (2021) 16 SCC 501

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CRP No.2619 of 2024

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THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION No. 2619 of 2024

JUDGMENT:

Heard Sri Suryam Gannavarapu, learned counsel for the petitioner and

Sri S. Lakshminarayana Reddy, learned counsel for the respondent.

2. The petitioner is the husband of the respondent/wife. The

respondent/wife filed F.C.O.P.No.1313 of 2022 (in short ‘FCOP’), pending in the

Court of XIV Additional District & Sessions Judge-cum-Judge, Additional Family

Court, Vijayawada (in short ‘the Family Court’), through General Power of

Attorney holder, under the Mohammedan Law, for restitution of conjugal rights.

The marriage (Nikha) was performed on 05.12.2020 as per Muslim law, rites

and customs at Hyderabad. It is the case of the respondent/wife that the

husband used to work in Canada and also gave a hope to the wife that he will

take her to Canada and would settle there. The wife came to know that the

husband filed a petition for granting divorce, petition No.FC-22-00000623-0000

before the Superior Court of Justice Oshawa, Toronto, Canada on 03.05.2022

on allegedly false averments, in a Court having no jurisdiction. She filed FCOP

stating that the husband without any reasonable excuse or justifiable cause

withdrew from the society of the wife and was not allowing her to join the

husband to lead marital life, though he was bound to discharge his duties

towards the wife and so the wife was entitled for restitution of conjugal rights.

Inter alia, the harassment and consequently, complaints against the husband

were also pleaded. The more details of the pleadings are not required to be

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CRP No.2619 of 2024

4

stated for the decision of the present petition as it arises out of an interlocutory

order passed in I.A.No.742 of 2024 in FCOP No.1313 of 2022.

3. In FCOP, the petitioner/husband filed I.A.No.742 of 2024 to permit

him to appear before the Family Court, Vijayawada through video conference

on a date and at a time designated for reconciliation. He

inter alia pleaded that

he was residing at Canada for job purpose and despite his efforts, he was

unable to secure leave and so unable to attend the Court and intended to

appear through video conference.

4. The wife/respondent filed counter. She denied the material

allegations and submitted that the husband was trying to escape from the legal

process for the last 1½ years and was seeking adjournments to come to India

for attending the reconciliation proceedings, but now he filed the application for

appearance through video conference mode for reconciliation, which was not

permissible. The application was not maintainable. She also submitted that the

mother and sister of the husband were the main persons who were trying to

destroy the marital relationship. They were residing along with the husband in

Canada and if the video conference was permitted, there would be chances of

provocation and to mislead the reconciliation process. She also submitted that

she was not giving her consent for video conference.

5. The learned Judge, Family Court framed the following point for

consideration:

“Whether the petitioner is entitled for relief as prayed for?”

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CRP No.2619 of 2024

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6. The learned Judge, Family Court, dismissed the petition I.A.No.742 of

2024, observing that there was no consent of both the parties which was must

for conducting reconciliation through video conferencing. It also observed that

the mother-in-law and sister-in-law of the respondent/wife had been staying

with the petitioner/husband in Canada and they certainly influenced the

petitioner/husband. The learned Judge, Family Court, in that regard,

considered the judgment of the Andhra Pradesh High Court in

Nerala

Chiranjeevi Arun Kumar v. Nerala Sowjanya

1

relied upon by the side of

the husband and also the judgment of the Hon’ble Apex Court in

Santhini v.

Vijaya Venkatesh

2

relied upon by the counsel for the wife.

7. Aggrieved by the rejection of the application, the husband has filed

the present civil revision petition challenging the Order dated 10.09.2024, under

Article 227 of the Constitution of India.

8. Learned counsel for the petitioner/husband submitted that the

husband is residing at Canada for job purpose. It is not possible for him to

come to India to attend the proceedings for reconciliation as he is not able to

secure leave. The Family Court ought to have permitted the reconciliation

process through video conferencing, using the technology, placing reliance in

Nerala Chiranjeevi Arun Kumar (supra); the common order dated

18.10.2024 passed in

G. Shrilakshmi v. Anirudh Ramkumar

3

and Santhini

(supra). He submitted that the order dismissing the petition seeking

1

2019 Supreme (AP) 357

2

(2018) 1 SCC 1

3

CRP.No.1994/2024 & batch,

Decided on 18.10.2024 Madras HC

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CRP No.2619 of 2024

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reconciliation through video conference deserves to be set aside and I.A.No.742

of 2024 deserves to be allowed.

9. Sri S. Lakshminarayana Reddy, learned counsel fo r the

respondent/wife, submitted that the video conference, without the consent of

both the parties, is not permissible in family dispute matters in Family Court.

The respondent/wife did not give consent, for the reasons in her counter

affidavit. Without the consent of both the parties, the video conference cannot

be permitted, in view of the law as laid down by the Hon’ble Apex Court in

Santhini (supra). So, there is no illegality in the order of the learned Judge,

Family Court.

10. I have considered the submissions advanced by the learned counsel

for both the parties and perused the material on record.

11. In FCOP, at the stage of reconciliation, the husband filed I.A.742 of

2024 for permission to attend in reconciliation process through video

conferencing. He is at Canada for job purpose. It is his case that he could not

secure leave and is unable to attend the proceedings at Vijayawada. The

respondent/wife has opposed the prayer. She has not given consent for

reconciliation through video conferencing.

12. The moot question for consideration is whether in matrimonial

disputes, Family Court disputes, at the stage of reconciliation, appearance of

the parties or any of them for reconciliation process, is legally permissible

through video conferencing? and if it is permissible, under what circumstances

and conditions, if any?

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13. The law on the aforesaid aspect, i.e., use of video conferencing, i.e.,

technology, at the stage of reconciliation process and also afterwards, if the

reconciliation fails, and after conclusion of the settlement proceedings, has

been well settled by the Hon’ble Apex Court in

Santhini (supra). The Hon’ble

Apex Court considered its previous pronouncements on the use of technology,

video conferencing etc; the object and scope and scheme of the Family Courts

Act, the importance of reconciliation; the right of a woman in such reconciliation

proceedings in a family dispute pending in the Family Court; right of privacy; in-

camera proceedings and in para-58 of

Santhini (supra) the Hon’ble Apex Court

by majority judgment, recorded the following principles of law:

“58. In view of the aforesaid analysis, we sum up our conclusion as

follows:

58.1. In view of the scheme of the 1984 Act and in particular Section

11, the hearing of matrimonial disputes may have to be conducted in camera.

58.2. After the settlement fails and when a joint application is filed or

both the parties file their respective consent memorandum for hearing of the

case through videoconferencing before the Family Court concerned, it may

exercise the discretion to allow the said prayer.

58.3. After the settlement fails, if the Family Court feels it appropriate

having regard to the facts and circumstances of the case that videoconferencing

will subserve the cause of justice, it may so direct.

58.4. In a transfer petition, videoconferencing cannot be directed.

58.5. Our directions shall apply prospectively.

58.6. The decision in Krishna Veni Nagam [Krishna Veni

Nagam v. Harish Nagam, (2017) 4 SCC 150 : (2017) 2 SCC (Civ) 394] is

overruled to the aforesaid extent.”

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CRP No.2619 of 2024

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14. The aforesaid conclusions of the Hon’ble Apex Court, as summed up,

show that the hearing of the matrimonial disputes has to be conducted in

camera. In camera proceedings are to be conducted if the Court considers it

appropriate and if any of the parties, seeks in camera proceedings, then,

necessarily. The confidentiality of the proceedings is imperative. After the

settlement fails and when a joint application is filed or both the parties file their

respective consent memorandum for hearing of the ca se through

videoconferencing before the Family Court concerned, it may exercise the

discretion to allow the said prayer. In para-58.3 of

Santhini (supra), the

Hon’ble Apex Court observed that ‘after the settlement fails’, if the Family Court

feels it appropriate having regard to the facts and circumstances of the case

that videoconferencing will subserve the cause of justice, it may so direct.

From the aforesaid, the law as settled is that direction for hearing of the case

through videoconferencing may be given by the Family Court, subject to

conditions, as mentioned in para-58 of

Santhini (supra). But, that is after the

settlement fails. The present is a case at the stage of settlement/reconciliation.

So, it is not a case after the settlement has failed. The request in the present

case, for videoconferencing, is for the purpose of reconciliation/settlement

proceedings, by the husband/petitioner.

15. At the stage of reconciliation/settlement process, in

Santhini

(supra), the Hon’ble Apex Court in detail discussed the position in paragraphs-

47 to 56, which are as under:

“47. The language employed in Section 11 of the 1984 Act is absolutely

clear. It provides that if one of the parties desires that the proceedings should be

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CRP No.2619 of 2024

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held in camera, the Family Court has no option but to so direct. This Court, in

exercise of its jurisdiction, cannot take away such a sanctified right that law

recognises either for the wife or the husband. That apart, the Family Court has

the duty to make efforts for settlement. Section 23(2) of the 1955 Act

mandates for reconciliation. The language used under Section 23(2) makes it

an obligatory duty on the part of the court at the first instance in every case

where it is possible, to make every endeavour to bring about reconciliation

between the parties where it is possible to do so consistent with the nature and

circumstances of the case. There are certain exceptions as has been enumerated

in the proviso which pertain to incurably of unsound mind or suffering from a

virulent and incurable form of leprosy or suffering from venereal disease in a

communicable form or has renounced the world by entering any religious order

or has not been heard of as being alive for a period of seven years, etc. These

are the exceptions carved out by the legislature. The Court has to play a diligent

and effective role in this regard.

48. The reconciliation requires presence of both the parties at the same

place and the same time so as to be effectively conducted. The spatial

distance will distant the possibility of reconciliation because the Family

Court Judge would not be in a position to interact with the parties in the

manner as the law commands. By virtue of the nature of the controversy, it

has its inherent sensitivity. The Judge is expected to deal with care, caution and

with immense sense of worldly experience absolutely being conscious of social

sensibility. Needless to emphasise, this commands a sense of trust and

maintaining an atmosphere of confidence and also requirement of assurance

that the confidentiality is in no way averted or done away with. There can be no

denial of this fact. It is sanguinely private. Recently, in K.S.

Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of India, (2017) 10

SCC 1] , this Court, speaking through one of us (Chandrachud, J.), has ruled

thus : (SCC pp. 498-99, para 298)

“298. …The intersection between one's mental integrity and privacy entitles

the individual freedom of thought, the freedom to believe in what is right, and

the freedom of self-determination. When these guarantees intersect with gender,

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CRP No.2619 of 2024

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they create a private space which protects all those elements which are crucial

to gender identity. The family, marriage, procreation and sexual orientation are

all integral to the dignity of the individual.”

And again : (SCC p. 499, para 299)

“299. Privacy represents the core of the human personality and recognises

the ability of each individual to make choices and to take decisions governing

matters intimate and personal.”

49. Felix Frankfurter, J. in Schulte Inc. v. Gangi [Schulte Inc. v. Gangi,

1946 SCC OnLine US SC 81 : 90 L Ed 1114 : 328 US 108 (1946)] , has stated

that the policy of a statute should be drawn out of its terms as nourished by their

proper environment and not like nitrogen out of the air. Benjamin N. Cardozo,

J. in Hopkins Federal Savings and Loan Assn. v. Cleary [Hopkins Federal

Savings and Loan Assn. v. Cleary, 1935 SCC OnLine US SC 186 : 80 L Ed 251

: 296 US 315 (1935)] , has opined that when a statute is reasonably susceptible

of two interpretations, the Court has to prefer the meaning that preserves to the

meaning that destroys.

50. The command under Section 11 of the 1984 Act confers a right on

both the parties. It is statutory in nature. The Family Court Judge who is

expected to be absolutely sensitive has to take stock of the situation and can suo

motu hold the proceedings in camera. The Family Court Judge is only meant to

deal with the controversies and disputes as provided under the 1984 Act. He is

not to be given any other assignment by the High Court. The in-camera

proceedings stand in contradistinction to a proceeding which is tried in

court. When a case is tried or heard in court, there is absolute transparency.

Having regard to the nature of the controversy and the sensitivity of the matter,

it is desirable to hear in court various types of issues that crop up in these types

of litigations. The Act commands that there has to be an effort for settlement.

The legislative intendment is for speedy settlement. The counsellors can be

assigned the responsibility by the court to counsel the parties. That is the

schematic purpose of the law. The confidentiality of the proceedings is

imperative for these proceedings.

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51. The procedure of videoconferencing which is to be adopted

when one party gives consent is contrary to Section 11 of the 1984 Act.

There is no provision that the matter can be dealt with by the Family

Court Judge by taking recourse to videoconferencing. When a matter is

not transferred and settlement proceedings take place which is in the

nature of reconciliation, it will be well-nigh impossible to bridge the gap.

What one party can communicate with other, if they are left alone for some

time, is not possible in videoconferencing and if possible, it is very doubtful

whether the emotional bond can be established in a virtual meeting during

videoconferencing. Videoconferencing may create a dent in the process of

settlement.

52. The two-Judge Bench [Krishna Veni Nagam v. Harish Nagam,

(2017) 4 SCC 150 : (2017) 2 SCC (Civ) 394] had referred to the decisions

where the affirmative rights meant for women have been highlighted in

various judgments. We have adverted to some of them to show the dignity

of woman and her rights and the sanctity of her choice. When most of the

time, a case is filed for transfer relating to matrimonial disputes governed

by the 1984 Act, the statutory right of a woman cannot be nullified by

taking route to technological advancement and destroying her right under

a law, more so, when it relates to family matters. In our considered

opinion, dignity of women is sustained and put on a higher pedestal if her

choice is respected. That will be in consonance with Article 15(3) of the

Constitution.

53. In this context, we may refer to the fundamental principle of necessity of

doing justice and trial in-camera. The nine-Judge Bench in Naresh Shridhar

Mirajkar v. State of Maharashtra [Naresh Shridhar Mirajkar v. State of

Maharashtra, AIR 1967 SC 1] , after enunciating the universally accepted

proposition in favour of open trials, expressed : (AIR pp. 8-9, para 21)

“21. … While emphasising the importance of public trial, we cannot

overlook the fact that the primary function of the judiciary is to do justice

between the parties who bring their causes before it. If a Judge trying a cause is

satisfied that the very purpose of finding truth in the case would be retarded, or

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CRP No.2619 of 2024

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even defeated if witnesses are required to give evidence subject to public gaze,

is it or is it not open to him in exercise of his inherent power to hold the trial in

camera either partly or fully? If the primary function of the court is to do justice

in causes brought before it, then on principle, it is difficult to accede to the

proposition that there can be no exception to the rule that all causes must

be tried in open court. If the principle that all trials before courts must be held

in public was treated as inflexible and universal and it is held that it admits of

no exceptions whatever, cases may arise where by following the principle,

justice itself may be defeated. That is why we feel no hesitation in holding that

the High Court has inherent jurisdiction to hold a trial in camera if the ends of

justice clearly and necessarily require the adoption of such a course. It is hardly

necessary to emphasise that this inherent power must be exercised with great

caution and it is only if the court is satisfied beyond a doubt that the ends of

justice themselves would be defeated if a case is tried in open court that it can

pass an order to hold the trial in camera; but to deny the existence of such

inherent power to the court would be to ignore the primary object of

adjudication itself. The principle underlying the insistence on hearing causes

in open court is to protect and assist fair, impartial and objective

administration of justice; but if the requirement of justice itself sometimes

dictates the necessity of trying the case in camera, it cannot be said that the

said requirement should be sacrificed because of the principle that every

trial must be held in open court.”

54. The principle of exception that the larger Bench enunciated is

founded on the centripodal necessity of doing justice to the cause and not to

defeat it. In matrimonial disputes that are covered under Section 7 of the

1984 Act where the Family Court exercises its jurisdiction, there is a

statutory protection to both the parties and conferment of power on the

court with a duty to persuade the parties to reconcile. If the proceedings

are directed to be conducted through videoconferencing, the command of

the section as well as the spirit of the 1984 Act will be in peril and further

the cause of justice would be defeated.

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55. A cogent reflection is also needed as regards the perception when

both the parties concur to have the proceedings to be held through

videoconferencing. In this context, the thought and the perception are to be

viewed through the lens of the textual context, legislative intent and schematic

canvas. The principle may have to be tested on the bedrock that courts must

have progressive outlook and broader interpretation with the existing employed

language in the statute so as to expand the horizon and the connotative expanse

and not adopt a pedantic approach.

56. We have already discussed at length with regard to the complexity

and the sensitive nature of the controversies. The statement of law made

in Krishna Veni Nagam [Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC

150 : (2017) 2 SCC (Civ) 394] that if either of the parties gives consent, the

case can be transferred, is absolutely unacceptable. However, an exception can

be carved out to the same. We may repeat at the cost of repetition that though

the principle does not flow from statutory silence, yet as we find from the

scheme of the Act, the Family Court has been given ample power to modulate

its procedure. The Evidence Act is not strictly applicable. Affidavits of formal

witnesses are acceptable. It will be permissible for the other party to cross-

examine the deponent. We are absolutely conscious that the enactment gives

emphasis on speedy settlement. As has been held in Bhuwan Mohan

Singh [Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC

(Civ) 321 : (2015) 4 SCC (Cri) 200] , the concept of speedy settlement does not

allow room for lingering the proceedings. A genuine endeavour has to be made

by the Family Court Judge, but in the name of efforts to bring in a settlement or

to arrive at a solution of the lis, the Family Court should not be chained by the

tentacles by either parties. Perhaps, one of the parties may be interested in

procrastinating the litigation. Therefore, we are disposed to think that once a

settlement fails and if both the parties give consent that a witness can be

examined in videoconferencing, that can be allowed. That apart, when they

give consent that it is necessary in a specific factual matrix having regard

to the convenience of the parties, the Family Court may allow the prayer

for videoconferencing. That much of discretion, we are inclined to think can

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be conferred on the Family Court. Such a limited discretion will not run counter

to the legislative intention that permeates the 1984 Act. However, we would

like to add a safeguard. A joint application should be filed before the

Family Court Judge, who shall take a decision. However, we make it clear

that in a transfer petition, no direction can be issued for videoconferencing.

We reiterate that the discretion has to rest with the Family Court to be

exercised after the court arrives at a definite conclusion that the settlement

is not possible and both parties file a joint application or each party filing

his/her consent memorandum seeking hearing by videoconferencing.”

16. In

Santhini (supra), the Hon’ble Apex Court thus clearly held that

the reconciliation requires presence of both the parties at the same place and

the same time so as to be effectively conducted. The spatial distance will

distant the possibility of reconciliation because the Family Court Judge would

not be in a position to interact with the parties in the manner as the law

commands. By virtue of the nature of the controversy, it has its inherent

sensitivity. The Judge is expected to deal with care, caution and with immense

sense of worldly experience absolutely being conscious of social sensibility. It

was emphasized that, this commands a sense of trust and maintaining an

atmosphere of confidence and also requirement of assurance that the

confidentiality is in no way averted or done away with. The Hon’ble Apex Court

further observed that the Family Courts Act under Section 11 of the 1984 Act

confers a right on both the parties. It is statutory in nature. The Family Court

Judge who is expected to be absolutely sensitive has to take stock of the

situation and can suo motu hold the proceedings in camera. The Family Court

Judge is only meant to deal with the controversies and disputes as provided

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under the 1984 Act. The in-camera proceedings stand in contradistinction to a

proceeding which is tried in court. When a case is tried or heard in court, there

is absolute transparency. Having regard to the nature of the controversy and

the sensitivity of the matter, it is desirable to hear in court various types of

issues that crop up in these types of litigations. The Act commands that there

has to be an effort for settlement. The legislative intendment is for speedy

settlement. The confidentiality of the proceedings is imperative for these

proceedings.

17. The Hon’ble Apex Court in Santhini (supra) further observed that

what one party can communicate with other, if they are left alone for some

time, is not possible in videoconferencing and if possible, it is very doubtful

whether the emotional bond can be established in a virtual meeting during

videoconferencing. Videoconferencing may create a dent in the process of

settlement. The Hon’ble Apex Court further observed and emphasized that the

statutory right of a woman cannot be nullified by taking route to technological

advancement and destroying her right under a law, more so, when it relates to

family matters. It was observed that if the proceedings were directed to be

conducted through videoconferencing, the command of the section as well as

the spirit of the 1984 Act would be in peril and cause of justice would be

defeated.

18. The Hon’ble Apex Court, overruled its judgment in Krishna Veni

Nagam v. Harish Nagam

4

to a certain extent. In Krishna Veni Nagam

4

(2017) 4 SCC 150

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(supra), the statement of law that if either of the parties gives consent, the

case can be transferred, was held absolutely unacceptable. The Hon’ble Apex

Court in Santhini (supra) however carved out an exception that once a

settlement fails and if both the parties give consent that a witness can be

examined in videoconferencing, that can be allowed. That apart, when the

parties give consent that it is necessary in a specific factual matrix having

regard to the convenience of the parties, the Family Court may allow the prayer

for videoconferencing. The Hon’ble Apex Court also added a safeguard that a

joint application should be filed before the Family Court Judge, who shall take a

decision. It was made clear that in a transfer petition, no direction can be

issued for videoconferencing. It was reiterated that the discretion has to rest

with the Family Court to be exercised after the Court arrives at a definite

conclusion that the settlement is not possible and both the parties file a joint

application or each party filing consent memorandum of videoconferencing.

19. So, in Santhini (supra) in clear words it has been laid down that the

videoconferencing may be permitted only after the settlement fails, on the joint

application of the parties or on their respective consent memo, if the Family

Court feels it appropriate. So, the videoconferencing at the stage of

reconciliation/settlement process is not permissible at all. The question of

consent of both the parties is also of no consideration or relevance, at the stage

of the reconciliation.

20. The aforesaid is the majority view and thus, the law laid down.

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21. Learned counsel for the petitioner submitted th at the

videoconferencing and in camera proceedings are not irreconcilable. There are

advantages of adopting videoconferencing technology. The aforesaid

submission proceeds on the minority view taken in

Santhini (supra).

22. In

Santhini (supra), dissenting view was recorded by Hon’ble Dr.

Justice D. Y. Chandrachud (as His Lordship then was) in paragraph Nos.61.1 to

61.10, as under:

“DR D.Y. CHANDRACHUD, J. (dissenting)— The judgment proposed by

the learned Chief Justice has been circulated and deliberated upon. The reasons

why I am unable to adopt the view propounded in the judgment of the learned

Chief Justice will be delivered separately [Ed. : See below from para 63.] . I

record below my conclusions:

61.1. The Family Courts Act, 1984 has been enacted at a point in time

when modern technology (at least as we know it today) which enables persons

separated by spatial distances to communicate with each other face to face was

not the order of the day or, in any case, was not as fully developed. That is no

reason for any court, especially for this Court which sets precedent for the

nation, to exclude the application of technology to facilitate the judicial process.

61.2. Appropriate deployment of technology facilitates access to justice.

Litigation under the Family Courts Act, 1984 is not an exception to this

principle. This Court must be averse to judicially laying down a restraint on

such use of technology which facilitates access to justice to persons in conflict,

including those involved in conflicts within the family. Modern technology is

above all a facilitator, enabler and leveller.

61.3. Videoconferencing is a technology which allows users in different

locations to hold face to face meetings. Videoconferencing is being used

extensively the world over (India being no exception) in online teaching,

administration, meetings, negotiation, mediation and telemedicine among a

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myriad other uses. Videoconferencing reduces cost, time, carbon footprint and

the like.

61.4. An in-camera trial is contemplated under Section 11 in two

situations : the first where the Family Court so desires; and the second if either

of the parties so desires. There is a fallacy in the hypothesis that an in-camera

trial is inconsistent with the usage of videoconferencing techniques. A trial in

camera postulates the exclusion of the public from the courtroom and allows for

restraints on public reporting. Videoconferencing does not have to be recorded

nor is it accessible to the press or the public. The proper adoption of

videoconferencing does not negate the postulates of an in-camera trial even if

such a trial is required by the court or by one of the parties under Section 11.

61.5. The Family Courts Act, 1984 envisages an active role for the

Family Court to foster settlements. Under the provisions of Section 9, the

Family Court has to endeavour to “assist and persuade” parties to arrive at a

settlement. Section 9 clearly recognises a discretion in the Family Court to

determine how to structure the process. It does so by adopting the words “where

it is possible to do so consistent with the nature and circumstances of the case”.

Moreover, the High Courts can frame rules under Section 9(1) and the Family

Court may, subject to those rules, “follow such procedure as it deems fit”. In

the process of settlement, Section 10(3) enables the Family Court to lay down

its own procedure. The Family Court is entitled to take the benefit of

counsellors, medical experts and persons professionally engaged in promoting

the welfare of the family.

61.6. The above provisions—far from excluding the use of

videoconferencing—are sufficiently enabling to allow the Family Court to

utilise technological advances to facilitate the purpose of achieving justice in

resolving family conflicts. There may arise a variety of situations where in

today's age and time parties are unable to come face to face for counselling or

can do so only at such expense, delay or hardship which will defeat justice. One

or both spouses may face genuine difficulties arising from the compulsions of

employment, family circumstances (including the needs of young children),

disability and social or economic handicaps in accessing a court situated in a

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location distant from where either or both parties reside or work. It would be

inappropriate to deprive the Family Court which is vested with such wide

powers and procedural flexibility to adopt videoconferencing as a facilitative

tool, where it is convenient and readily available. Whether videoconferencing

should be allowed must be determined on a case-to-case analysis to best

effectuate the concern of providing just solutions. Far from such a procedure

being excluded by the law, it will subserve the purpose of the law.

61.7. Conceivably there may be situations where parties (or one of the

spouses) do not want to be in the same room as the other. This is especially true

when there are serious allegations of marital abuse. Videoconferencing allows

things to be resolved from the safety of a place which is not accessible to the

other spouse against whom there is a serious allegation of misbehaviour of a

psychiatric nature or in a case of substance abuse.

61.8. Videoconferencing is gender neutral. In fact it ensures that one of

the spouses cannot procrastinate and delay the conclusion of the trial. Delay, it

must be remembered, generally defeats the cause of a party which is not the

dominant partner in a relationship. Asymmetries of power have a profound

consequence in marital ties. Imposing an unwavering requirement of personal

and physical presence (and exclusion of facilitative technological tools such as

videoconferencing) will result in a denial of justice.

61.9. The High Courts have allowed for videoconferencing in resolving

family conflicts. A body of precedent has grown around the subject in the

Indian context. The Judges of the High Court should have a keen sense of

awareness of prevailing social reality in their States and of the federal structure.

Videoconferencing has been adopted internationally in resolving conflicts

within the family. There is a robust body of authoritative opinion on the subject

which supports videoconferencing, of course with adequate safeguards.

Whether videoconferencing should be allowed in a particular family dispute

before the Family Court, the stage at which it should be allowed and the

safeguards which should be followed should best be left to the High Courts

while framing rules on the subject. Subject to such rules, the use of

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videoconferencing must be left to the careful exercise of discretion of the

Family Court in each case.

61.10. The proposition that videoconferencing can be permitted only

after the conclusion of settlement proceedings (resultantly excluding it in the

settlement process), and thereafter only when both parties agree to it does not

accord either with the purpose or the provisions of the Family Courts Act, 1984.

Exclusion of videoconferencing in the settlement process is not mandated either

expressly or by necessary implication by the legislation. On the contrary, the

legislation has enabling provisions which are sufficiently broad to allow

videoconferencing. Confining it to the stage after the settlement process and in

a situation where both parties have agreed will seriously impede access to

justice. It will render the Family Court helpless to deal with human situations

which merit flexible solutions. Worse still, it will enable one spouse to cause

interminable delays thereby defeating the purpose for which a specialised court

has been set up.”

23. This Court is to follow the majority view, which is the law laid down.

24. In respect of the advantages of the videoconferencing and speedy

decision, the majority view also considered the same and observed in para-33

that the pronouncement with respect to the use of technology, modes of

videoconferencing etc., in the judgments referred by it, on different points, on

different controversies, different from matrimonial proceedings and those

judgments could not be regarded as precedents for the proposition that the

videoconferencing can be one of the modes to regulate the matrimonial

proceedings. Para-33 of

Santhini (supra) reads as under:

“33. The aforesaid pronouncements, as we find, are absolutely different

from a controversy which is involved in matrimonial proceedings which relate

to various aspects, namely, declaration of marriage as a nullity, dissolution of

marriage, restitution of marriage, custody of children, guardianship,

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maintenance, adjudication of claim of stridhan, etc. The decisions that have

been rendered cannot be regarded as precedents for the proposition that

videoconferencing can be one of the modes to regulate matrimonial

proceedings.”

25. I now proceed to consider the judgment cited by the learned counsel

for the petitioner.

25.1. In

Nerella Chiranjeevi Arun Kumar (supra), the civil revision

petition was filed challenging the Order dated 23.04.2019 passed in I.A.No.991

of 2018 in FCOP No.634 of 2017. The consideration was, whether the petitioner

therein could be allowed to be represented by General Power of Attorney

Holder for reconciliation, when the petition was dismissed and on application

under Order 9 Rule 9 CPC to set aside the dismissal order and to restore the

main petition and to permit the GPA holder to contest the reconciliation

proceedings was filed. The learned single Judge, considering the previous

pronouncements, mainly on the point of power of attorney and appearance

through power of attorney holder, observed that since the husband was

working in USA and it would be difficult to get leave from his company, and

also noting that the husband requested for process of reconciliation through

electronic devices, i.e., Skype, whatsapp, true caller etc., whereas the wife was

insisting the personal appearance of the husband, further observed that during

the conciliation proceedings, it could not be necessary for the husband to come

all the way from US, and with the technology in the information sector was

available, therefore, the party seeking such benefit, be allowed the appearance

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CRP No.2619 of 2024

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by using the technology to reduce the cost of litigation and save the precious

time for the purpose of reconciliation.

25.2.

Nerella Chiranjeevi Arun Kumar (supra) was decided on

13.09.2019, however, the judgment of the Hon’ble Apex Court in

Santhini

(supra) which was decided on 09.10.2017 appears not to have been brought to

the notice of the learned single Judge, as it does not find mention.

26.3. In

G. Shrilakshmi (supra), which was a case under Section 13-B

of the Hindu Marriage Act before the Family Court, the learned single Judge of

the Madras High Court, highlighting the importance of the virtual proceedings,

referring to the judgments of the Hon’ble Apex Court in

State of Maharashtra

v. Dr. Praful Dubey

5

, Amardeep Singh v. Harveen Kaur

6

, Anuradha

Bhasin v. Union of India

7

and others issued direction to the Principal Family

Court, Chennai, to dissolve the marriage between the parties therein without

insisting the physical presence of the parties, permitting the respective power of

attorney of the parties to present the petition. The direction was also issued

that the Family Courts shall not insist physical presence of the spouses at the

time of presenting the petition at the first instance and for future hearings, and

also that the parties can be present through virtual mode from their respective

places and the place of location, identity of the person to be confirmed with

relevant documents. It was further directed that the Court can verify with the

parties appearing through virtual mode as to the petition, proof affidavit,

5

(2003) 4 SCC 601

6

(2017) 8 SCC 746

7

(2020) 3 SCC 637

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CRP No.2619 of 2024

23

documents produced and record the same as evidence on satisfaction and to

pass appropriate orders. The Madras High Court obs erved that virtual

proceedings provide an opportunity to modernize the system by making it more

affordable and citizen friendly, enabling the aggrieved to access justice from

any part of the country in the world. Thus, the Family Court, to ensure that

such system of conducting the proceedings through videoconferencing was put

to usage, without insisting the presence of the petitioner even from the time of

first presentation till the conclusion of the proceedings, direction was given to

the Family Court, not to raise technical objections and insist on physical

appearance of the parties at any stage.

25.4. Para-29 of

G. Shrilakshmi (supra) upon which learned counsel for

the petitioner placed reliance, is as under:

“29. Virtual proceedings provide an opportunity to modernize the

system by making it more affordable and citizen friendly, enabling the

aggrieved to access justice from any part of the country in the world. Thus the

Family Court to ensure that such a system of conducting the proceedings

through video conferencing is put to usage without insisting the presence of

petitioner even from the time of first presentation till the conclusion of

proceedings. The Family Court henceforth not to raise technical objections and

insist on physical appearance of petitioner/parties at any stage.”

25.5. A reading of the judgment in

G. Shrilakshmi (supra) shows that

the judgment of the Hon’ble Apex Court in

Santhini (supra) was not taken

note of.

26. For the aforesaid consideration made in particular paras-25.2 to 25.5

(supra), the judgments in

Nerella Chiranjeevi Arun Kumar (supra) and G.

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Shrilakshmi (supra) are of no help to the petitioner and cannot be relied

upon.

27. I may also refer to the judgment of the Hon’ble Apex Court in

Anjali

Brahmawar Chauhan v. Navin Chauhan

8

. In the said case, the transfer

petition of the petitioner was dismissed on account of the fact that no serious

inconvenience would be caused to the petitioner for travelling between

Gautambudh Nagar, U.P. to Saket, New Delhi. The petitioner filed review

petition on the ground that there was no videoconferencing facility at

Gautambudh Nagar, District Courts. Another ground was taken that

videoconferencing was not permissible in matrimonial matters in accordance

with the judgment in

Santhini (supra). The Hon’ble Apex Court dismissed the

review petition. However, due to the ongoing Pandemic situation at that time

and the physical functioning of the Courts had been stopped since March 2020,

and the proceedings of all Courts were being conducted only through

videoconferencing, the Family Court was directed to conduct trial through

videoconferencing. The Hon’ble Apex Court, however, observed that in the

normal course, it would not have directed videoconferencing in respect of

matrimonial matters as per the judgment of the Hon’ble Apex Court, in

Santhini (supra).

28. Paragraph Nos.2 to 4 of

Anjali Brahmawar Chauhan (supra) are

as under:

“2. This review petition has been filed by the petitioner on the ground

that there is no videoconferencing facility at Gautambudh Nagar, District

8

(2021) 16 SCC 501

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CRP No.2619 of 2024

25

Courts. Another ground in the review petition is that videoconferencing is not

permissible in matrimonial matters in accordance with the judgment of this

Court dated 9-10-2017 in Santhini v. Vijaya Venketesh [Santhini v. Vijaya

Venketesh, (2018) 1 SCC 1 : (2018) 1 SCC (Civ) 1 (three-Judge Bench)] .

3. Notice was issued in the review petition on 20-3-2018 [Anjali

Brahmawar Chauhan v. Navin Chauhan, 2018 SCC OnLine SC 3652] . Due to

the ongoing Pandemic, physical functioning of the courts has been stopped

since March 2020. Proceedings in all courts are being conducted only through

videoconferencing. In the normal course we would not have directed

videoconferencing in respect of matrimonial matters as per the judgment of this

Court mentioned above. However, in the present situation where all

proceedings are conducted through videoconferencing, we direct the Family

Court, District Gautambudh Nagar, U.P. to conduct the trial through

videoconferencing.

4. The review petition is dismissed.”

29. In

Anjali Brahmawar Chauhan (supra), which was a case of

transfer petition of matrimonial matter, the videoconferencing was permitted

only because of the Pandemic situation.

30. I am of the considered view that in view of the law laid down by the

Hon’ble the Apex Court in

Santhini (supra),

(i) for the purposes of reconciliation in matrimonial matters before the

Family Courts videoconferencing is not permissible, and

(ii) it is only after the efforts of reconciliation and settlement fails, the

videoconferencing can be resorted on the joint application filed by the

parties or the memorandum of consent by both the parties, husband and

wife, for such videoconferencing, in the discretion of the Court, if the

Court considers it appropriate.

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CRP No.2619 of 2024

26

31. Consequently, I do not find any illegality in the Order of the learned

trial Court passed in I.A.No.742 of 2024 in FCOP No.1313 of 2022, dated

10.09.2024.

32. The Civil Revision Petition is dismissed. No order as to costs.

Pending miscellaneous petitions, if any, shall st and closed in

consequence.

_______________________

RAVI NATH TILHARI, J

Date: 28.01.2025

Dsr

Note:

LR copy to be marked

B/o

Dsr