1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO.1278 OF 2016

Santhini …Petitioner(s)

Versus

Vijaya Venketesh …Respondent(s)

WITH

TRANSFER PETITION (CIVIL) NO. 422 OF 2017

J U D G M E N T

Dipak Misra, CJI. [For himself and Khanwilkar, J.]

A two-Judge Bench in Krishna Veni Nagam v. Harish Nagam

1

,

while dealing with transfer petition seeking transfer of a case instituted

under Section 13 of the Hindu Marriage Act, 1955 (for brevity, ‘the 1955

Act’) pending on the file of IInd Presiding Judge, Family Court,

Jabalpur, Madhya Pradesh to the Family Court, Hyderabad, Andhra

1 (2017) 4 SCC 150

2

Pradesh, took note of the grounds of transfer and keeping in view the

approach of the Court to normally allow the transfer of the proceedings

having regard to the convenience of the wife, felt disturbed expressing

its concern to the difficulties faced by the litigants travelling to this

Court and, accordingly, posed the question whether there was any

possibility to avoid the same. It also took note of the fact that in the

process of hearing of the transfer petition, the matrimonial matters

which are required to be dealt with expeditiously are delayed. That

impelled the Court to pass an order on 09.01.2017 which enumerated

the facts including the plight asserted by the wife, the concept of

territorial jurisdiction under Section 19 of the 1955 Act, and reflected on

the issues whether transfer of a case could be avoided and alternative

mode could be thought of. Dwelling upon the said aspects, the Court

articulated:-

“In these circumstances, we are prima facie of the view that

we need to consider whether we could pass a general order to

the effect that in case where husband files matrimonial

proceedings at place where wife does not reside, the court

concerned should entertain such petition only on the

condition that the husband makes appropriate deposit to

bear the expenses of the wife as may be determined by the

Court. The Court may also pass orders from time to time for

further deposit to ensure that the wife is not handicapped to

defend the proceedings. In other cases, the husband may take

proceedings before the Court in whose jurisdiction the wife

3

resides which may lessen inconvenience to the parties and

avoid delay. Any other option to remedy the situation can also

be considered.”

As the narration would exposit, the pivotal concern of the Court

was whether an order could be passed so as to provide a better

alternative to each individual who is compelled to move this Court.

2. The observation made in Anindita Das v. Srijit Das

2

to the effect

that on an average at least 10 to 15 transfer petitions are on board of

each Court on each admission day was noticed. The learned Judges

apprised themselves about the observations made in Mona Aresh Goel

v. Aresh Satya Goel

3

, Lalita A. Ranga v. Ajay Champalal Ranga

4

,

Deepa v. Anil Panicker

5

, Archana Rastogi v. Rakesh Rastogi

6

,

Leena Mukherjee v. Rabi Shankar Mukherjee

7

, Neelam Bhatia v.

Satbir Singh Bhatia

8

, Soma Choudhury v. Gourab Choudhaury

9

,

Rajesh Rani v. Tej Pal

10

, Vandana Sharma v. Rakesh Kumar

Sharma

11

and Anju Ohri v. Varinder Ohri

12

which rest on the

2 (2006) 9 SCC 197

3 (2000) 9 SCC 255

4 (2000) 9 SCC 355

5 (2000) 9 SCC 441

6 (2000) 10 SCC 350

7 (2002) 10 SCC 480

8 (2004) 13 SCC 436 : (2006) 1 SCC (Cri) 323

9 (2004) 13 SCC 462 : (2006) 1 SCC (Cri) 341

10 (2007) 15 SCC 597

11 (2008) 11 SCC 768

12 (2007) 15 SCC 556

4

principle of “expedient for ends of justice” to transfer the proceedings. It

also adverted to Premlata Singh v. Rita Singh

13

wherein this Court

had not transferred the proceedings but directed the husband to pay for

travelling, lodging and boarding expenses of the wife and/or person

accompanying her for each hearing. The said principle was also followed

in Gana Saraswathi v. H. Raghu Prasad

14

.

3.The two-Judge Bench, after hearing the learned counsel for the

parties, the learned Additional Solicitor General and the learned Senior

Counsel who was requested to assist the Court, made certain references

to the doctrine of ‘forum non conveniens” and held that it can be applied

to matrimonial proceedings for advancing the interest of justice. The

learned Additional Solicitor General assisting the Court suggested about

conducting the proceedings by videoconferencing. In that context, it has

been held:-

“14. One cannot ignore the problem faced by a husband if proceedings

are transferred on account of genuine difficulties faced by the wife. The

husband may find it difficult to contest proceedings at a place which is

convenient to the wife. Thus, transfer is not always a solution

acceptable to both the parties. It may be appropriate that available

technology of videoconferencing is used where both the parties have

equal difficulty and there is no place which is convenient to both the

parties. We understand that in every district in the country

13 (2005) 12 SCC 277

14 (2000) 10 SCC 277

5

videoconferencing is now available. In any case, wherever such facility is

available, it ought to be fully utilised and all the High Courts ought to

issue appropriate administrative instructions to regulate the use of

videoconferencing for certain category of cases. Matrimonial cases where

one of the parties resides outside court’s jurisdiction is one of such

categories. Wherever one or both the parties make a request for use of

videoconferencing, proceedings may be conducted on videoconferencing,

obviating the needs of the party to appear in person. In several cases,

this Court has directed recording of evidence by video conferencing

15

.

x x x x

16. The advancement of technology ought to be utilised also

for service on parties or receiving communication from the

parties. Every District Court must have at least one e-mail ID.

Administrative instructions for directions can be issued to

permit the litigants to access the court, especially when

litigant is located outside the local jurisdiction of the Court. A

designated officer/manager of a District Court may suitably

respond to such e-mail in the manner permitted as per the

administrative instructions. Similarly, a manager/information

officer in every District Court may be accessible on a notified

telephone during notified hours as per the instructions. These

steps may, to some extent, take care of the problems of the

litigants. These suggestions may need attention of the High

Courts.”

[Emphasis added]

4.After so stating, the two-Judge Bench felt the need to issue

directions which may provide alternative to seeking transfer of

proceedings on account of inability of a party to contest proceedings at a

15 State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601 : 2003

SCC (Cri) 815; Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284 : 2005 SCC (Cri) 705; Budhadev Karmaskar

(4) v. State of W.B., (2011) 10 SCC 283 : (2012) 1 SCC (Cri) 285; Malthesh Gudda Pooja v. State of Karnataka, (2011) 15

SCC 330 : (2014) 2 SCC (Civ) 473

6

place away from their ordinary residence which will eventually result in

denial of justice. The safeguards laid down in the said judgment are:-

“(i) Availability of videoconferencing facility.

(ii) Availability of legal aid service.

(iii) Deposit of cost for travel, lodging and boarding in terms of

Order 25 CPC.

(iv) E-mail address/phone number, if any, at which litigant from

outstation may communicate.”

Be it stated, the Court took note of the spirit behind the orders of

this Court allowing the transfer petitions filed by wives and opined that

the Court almost mechanically allows the petitions so that they are not

denied justice on account of their inability to participate in proceedings

instituted at a different place. It laid stress on financial or physical

hardship. It referred to the authorities in the constitutional scheme that

provide for guaranteeing equal access to justice

16

, power of the State to

make special provisions for women and children

17

, duty to uphold the

dignity of women

18

and various steps that have been taken in the said

direction

19

.

16

17

18

19

7

5.In the said case, the Court transferred the case as prayed for and

further observed that it will be open to the transferee court to conduct

the proceedings or record the evidence of the witnesses who are unable

to appear in court by way of videoconferencing. The aforesaid decision

was brought to the notice of the two-Judge Bench in the instant case by

the learned counsel appearing for the respondent who advanced his

submission that there is no need to transfer the case and the parties

can be directed to avail the facility of videoconferencing. The two-Judge

Bench, after referring to the Statement of Objects and Reasons of the

Family Courts Act, 1984 (for brevity, ‘the 1984 Act’), various provisions

of the said Act, Sections 22, 23 and 26 of the 1955 Act, Rules 2, 3 and

4 of Order XXXIIA which were inserted by the 1976 amendment to the

Code of Civil Procedure (for short, “the CPC”), the concept of

reconciliation, the role of the counsellors in the Family Court and the

principle of confidence and confidentiality, held:-

“19. To what extent the confidence and confidentiality will

be safeguarded and protected in video conferencing,

particularly when efforts are taken by the counsellors,

welfare experts, and for that matter, the court itself for

reconciliation, restitution of conjugal rights or dissolution of

marriage, ascertainment of the wishes of the child in

custody matters, etc., is a serious issue to be considered. It

is certainly difficult in video conferencing, if not impossible,

to maintain confidentiality. It has also to be noted that the

8

footage in video conferencing becomes part of the record

whereas the reconciliatory efforts taken by the duty-holders

referred to above are not meant to be part of the record. All

that apart, in reconciliatory efforts, physical presence of the

parties would make a significant difference. Having regard

to the very object behind the establishment of Family

Courts Act, 1984, to Order XXXIIA of the Code of Civil

Procedure and to the special provisions introduced in the

Hindu Marriage Act under Sections 22, 23 and 26, we are of

the view that the directions issued by this Court in Krishna

Veni Nagam (supra) need reconsideration on the aspect of

video conferencing in 12 matrimonial disputes.”

Being of this view, it has referred the matter to be considered by a

larger Bench. That is how the matter has been placed before us.

6.We have heard Mr. V.K. Sidharthan, learned counsel for the

petitioner and Mr. Rishi Malhotra, learned counsel for the respondent.

We have also heard Mr. Ajit Kumar Sinha, learned senior counsel who

has been requested to assist the Court.

7.Before we refer to the scheme under the 1984 Act and the 1955

Act, we think it apt to refer to the decisions that have been noted in

Krishna Veni Nagam (supra). In Mona Aresh Goel (supra), the

three-Judge Bench was dealing with the transfer of the matrimonial

proceedings for divorce that was instituted by the husband in Bombay.

The prayer of the wife was to transfer the case from Bombay to Delhi.

The averment was made that the wife had no independent income and

9

her parents were not in a position to bear the expenses of her travel

from Delhi to Bombay to contest the divorce proceedings. That apart,

various inconveniences were set forth and the husband chose not to

appear in the Transfer Petition. The Court, considering the difficulties

of the wife, transferred the case from Bombay to Delhi. In Lalita A.

Ranga (supra), the Court, taking note of the fact that the husband had

not appeared and further appreciating the facts and circumstances of

the case, thought it appropriate to transfer the petition so that the wife

could contest the proceedings. Be it noted, the wife had a small child

and she was at Jaipur and it was thought that it would be difficult for

her to go to Bombay to contest the proceedings from time to time. In

Deepa’s case, the stand of the wife was that she was unemployed and

had no source of income and, on that basis, the prayer of transfer was

allowed. In Archana Rastogi (supra), the Court entertained the plea of

transfer and held that the prayer for transfer of matrimonial proceedings

taken by the husband in the Court of District Judge, Chandigarh to the

Court of District Judge, Delhi deserved acceptance and, accordingly,

transferred the case. Similarly, in Leena Mukherjee (supra), the prayer

for transfer was allowed. In Neelam Bhatia (supra), the Court declined

to transfer the case and directed the husband to bear the to-and-fro

10

travelling expenses of the wife and one person accompanying her by

train whenever she actually appeared before the Court. In Soma

Choudhury (supra), taking into consideration the difficulties of the

wife, the proceedings for divorce were transferred from the Court of

District Judge, South Tripura, Udaipur (Tripura) to the Family Court at

Alipore (West Bengal). In Anju Ohri (supra), the Court, on the

foundation of the convenience of the parties and the interest of justice,

allowed the transfer petition preferred by the wife. In Vandana

Sharma (supra), the Court, taking note of the fact that the wife had two

minor daughters and appreciating the difficulty on the said bedrock,

thought it appropriate to transfer the case and, accordingly, so directed.

8.Presently, we think it condign to advert in detail as to what has

been stated in Anindita Das (supra). The stand of the wife in the

transfer petition was that she had a small child of six years and had no

source of income and it was difficult to attend the court at Delhi where

the matrimonial proceedings were pending. The two-Judge Bench

referred to some of the decisions which we have already referred to and

also adverted to Ram Gulam Pandit v. Umesh J. Prasad

20

and

20

11

Rajwinder Kaur v. Balwinder Singh

21

and opined that all the

authorities are based on the facts of the respective cases and they do

not lay down any particular law which operates as a precedent.

Thereafter, it noted that taking advantage of the leniency shown to the

ladies by this Court, number of transfer petitions are filed by women

and, therefore, it is required to consider each petition on merit. Then,

the Court dwelled upon the fact situation and directed that the husband

shall pay all travel and stay expenses to the wife and her companion for

each and every occasion whenever she was required to attend the Court

at Delhi. From the aforesaid decision, it is quite vivid that the Court felt

that the transfer petitions are to be considered on their own merits and

not to be disposed of in a routine manner.

9.Having noted the authorities relating to transfer of matrimonial

disputes, we may refer to Section 25 of the CPC which reads as follows:-

“Section 25. Power of Supreme Court to transfer suits,

etc.- (1) On the application of a party, and after notice to

the parties, and after hearing such of them as desire to be

heard, the Supreme Court may, at any stage, if satisfied

that an order under this section is expedient for the ends of

justice, direct that any suit, appeal or other proceedings be

transferred from a High Court or other Civil Court in one

State to a High Court or other Civil Court in any other

State.

21

12

(2) Every application under this section shall be made by

motion which shall be supported by an affidavit.

(3) The court to which such suit, appeal or other

proceeding is transferred shall, subject to any special

directions in the order of transfer, either re-try it or

proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the

Supreme Court may, if it is of opinion that the application

was frivolous or vexatious, order the applicant to pay by

way of compensation to any person who has opposed the

application such sum, not exceeding two thousand rupees,

as it considers appropriate in the circumstances of the

case.

(5) The law applicable to any suit, appeal or other

proceeding transferred under this section shall be the law

which the court in which the suit, appeal or other

proceeding was originally instituted ought to have applied

to such Suit, appeal or proceeding.”

10.Order XLI Rule 2 of the Supreme Court Rules, 2013 which deals

with the application for transfer under Article 139A(2) of the

Constitution and Section 25 of the CPC is as follows:-

“1. Every petition under article 139A(2) of the Constitution

or Section 25 of the Code of Civil Procedure, 1908, shall be

in writing. It shall state succinctly and clearly all relevant

facts and particulars of the case, the name of the High

Court or other Civil Court in which the case is pending and

the grounds on which the transfer is sought. The petition

shall be supported by an affidavit.

2. The petition shall be posted before the Court for

preliminary hearing and orders as to issue of notice. Upon

such hearing the Court, if satisfied that no prima facie case

13

for transfer has been made out, shall dismiss the petition

and if upon such hearing the Court is satisfied that a

prima facie case for granting the petition is made out, it

shall direct that notice be issued to the parties in the case

concerned to show cause why the case be not transferred.

A copy of the Order shall be transmitted to the High Court

concerned.

3. The notice shall be served not less than four weeks

before the date fixed for the final hearing of the petition.

Affidavits in opposition shall be filed in the Registry not

later than one week before the date appointed for hearing

and the affidavit in reply shall be filed not later than two

days preceding the day of the hearing of the petition.

Copies of affidavits in opposition and in reply shall be

served on the opposite party or parties and the affidavits

shall not be accepted in the Registry unless they contain

an endorsement of service signed by such party or parties.

4. The petition shall thereafter be listed for final hearing

before the Court.

5. Save as otherwise provided by the rules contained in

this Order the provisions of other orders (including Order

LI) shall, so far as may be, apply to petition under this

Order.”

The purpose of referring to the same is that this Court has been

conferred with the power by the Constitution under Article 139A(2) to

transfer the cases and has also been conferred statutory jurisdiction to

transfer the cases. The Rules have been framed accordingly. The Court

has the power to allow the petition seeking transfer or to decline the

prayer and indubitably, it is on consideration of the merits of the case

and satisfaction of the Court on that score.

14

11.Having stated thus, it is necessary to appreciate the legistative

purpose behind the 1984 Act. The Family Courts have been established

for speedy settlement of family disputes. The Statement of Objects and

Reasons reads thus:-

“Statement of Objects and Reasons

Several associations of women, other organizations

and individuals have urged, from time to time, that Family

Courts be set up for the settlement of family disputes,

where emphasis should be laid on conciliation and

achieving socially desirable results and adherence to rigid

rules of procedure and evidence should be eliminated. The

Law Commission in its 59

th

report (1974) had also stressed

that in dealing with disputes concerning the family the

court ought to adopt an approach radically different from

that adopted in ordinary civil proceedings and that it

should make reasonable efforts at settlement before the

commencement of the trial. The Code of Civil Procedure

was amended in 1976 to provide for a special family.

However, not much use has been made by the courts in

adopting this conciliatory procedure and the courts

continue to deal with family disputes in the same manner

as other civil matters and the same adversary approach

prevails. The need was, therefore, felt, in the public

interest, to establish Family Courts for speedy settlement

of family disputes.

2.The Bill inter alia, seeks to—

(a)provide for establishment of Family Courts by the

State Governments;

15

(b)make it obligatory on the State Governments to set up

a Family Court in every city or town with a population

exceeding one million;

(c)enable the State Governments to set up, such courts,

in areas other than those specified in (b) above.

(d)exclusively provide within the jurisdiction of the

Family Courts the matters relating to—

(i)matrimonial relief, including nullity of marriage,

judicial separation, divorce, restitution of conjugal rights,

or declaration as to the validity of marriage or as to the

matrimonial status of any person;

(ii)the property of the spouses or of either of them;

(iii)declaration as to the legitimacy of any person;

(iv)guardianship of a person or the custody of any minor;

(v)maintenance, including proceedings under Chapter IX

of the Code of Criminal Procedure;

(e)Make it obligatory on the part of the Family Court to

endeavour, in the first instance to effect a reconciliation or

a settlement between the parties to a family dispute.

During this stage, the proceedings will be informal and

rigid rules of procedure shall not apply;

(f)provide for the association of social welfare agencies,

counselors, etc., during conciliation stage and also to

secure the service of medical and welfare experts;

(g)provide that the parties to a dispute before a Family

Court shall not be entitled, as of right, to be represented by

legal practitioner. However, the court may, in the interest

of justice, seek assistance of a legal expert as amicus

curiae,

16

(h)simplify the rules of evidence and procedure so as to

enable a Family Court to deal effectively with a dispute;

(i)provide for only one right of appeal which shall lie to

the High Court.

3.The Bill seeks to achieve the above objects.”

12.The preamble of the 1984 Act provides for the establishment of

Family Courts with a view to promote conciliation in, and secure speedy

settlement of disputes relating to marriage and family affairs and for

matters connected therewith.

13.Presently, we may recapitulate how this Court has dealt with the

duty and responsibility of the Family Court or a Family Court Judge. In

Bhuwan Mohan Singh v. Meena and others

22

, the three-Judge Bench

referred to the decision in K.A. Abdul Jaleel v. T.A. Shahida

23

and laid

stress on securing speedy settlement of disputes relating to marriage

and family affairs. Emphasizing on the role of the Family Court Judge,

the Court in Bhuwan Mohan Singh (supra) expressed its anguish as

the proceedings before the family court had continued for a considerable

length of time in respect of application filed under Section 125 of the

Code of Criminal Procedure (CrPC). The Court observed:-

22

23

17

“It has come to the notice of the Court that on certain

occasions the Family Courts have been granting

adjournments in a routine manner as a consequence of

which both the parties suffer or, on certain occasions, the

wife becomes the worst victim. When such a situation

occurs, the purpose of the law gets totally atrophied. The

Family Judge is expected to be sensitive to the issues, for

he is dealing with extremely delicate and sensitive issues

pertaining to the marriage and issues ancillary thereto.

When we say this, we do not mean that the Family Courts

should show undue haste or impatience, but there is a

distinction between impatience and to be wisely anxious

and conscious about dealing with a situation. A Family

Court Judge should remember that the procrastination is

the greatest assassin of the lis before it. It not only gives

rise to more family problems but also gradually builds

unthinkable and Everestine bitterness. It leads to the cold

refrigeration of the hidden feelings, if still left. The

delineation of the lis by the Family Judge must reveal the

awareness and balance. Dilatory tactics by any of the

parties has to be sternly dealt with, for the Family Court

Judge has to be alive to the fact that the lis before him

pertains to emotional fragmentation and delay can feed it

to grow.”

And again:

“We hope and trust that the Family Court Judges shall

remain alert to this and decide the matters as expeditiously

as possible keeping in view the Objects and Reasons of the

Act and the scheme of various provisions pertaining to

grant of maintenance, divorce, custody of child, property

disputes, etc.”

14.The said passage makes it quite clear that a Family Court Judge

has to be very sensitive to the cause before it and he/she should be

18

conscious about timely delineation and not procrastinate the matter as

delay has the potentiality to breed bitterness that eventually corrodes

the emotions. The Court has been extremely cautious while stating

about patience as a needed quality for arriving at a settlement and the

need for speedy settlement and, if not possible, proceeding with

meaningful adjudication. There must be efforts for reconciliation, but

the time spent in the said process has to have its own limitation.

15.In Shamima Farooqui v. Shahid Khan

24

, after referring to the

earlier decisions, especially the above quoted passages, the Court

expressed:-

“When the aforesaid anguish was expressed, the

predicament was not expected to be removed with any kind

of magic. However, the fact remains, these litigations can

really corrode the human relationship not only today but

will also have the impact for years to come and has the

potentiality to take a toll on the society. It occurs either

due to the uncontrolled design of the parties or the

lethargy and apathy shown by the Judges who man the

Family Courts. As far as the first aspect is concerned, it is

the duty of the courts to curtail them. There need not be

hurry but procrastination should not be manifest,

reflecting the attitude of the court. As regards the second

facet, it is the duty of the court to have the complete

control over the proceeding and not permit the lis to swim

the unpredictable grand river of time without knowing

when shall it land on the shores or take shelter in a corner

tree that stands “still” on some unknown bank of the river.

24

19

It cannot allow it to sing the song of the brook. “Men may

come and men may go, but I go on forever.” This would be

the greatest tragedy that can happen to the adjudicating

system which is required to deal with most sensitive

matters between the man and wife or other family

members relating to matrimonial and domestic affairs.

There has to be a proactive approach in this regard and the

said approach should be instilled in the Family Court

Judges by the Judicial Academies functioning under the

High Courts. For the present, we say no more.”

[Underlining is ours]

16.The object of stating this is that the legislative intent, the

schematic purpose and the role attributed to the Family Court have to

be perceived with a sense of sanctity. The Family Court Judge should

neither be a slave to the concept of speedy settlement nor should he be

a serf to the proclivity of hurried disposal abandoning the inherent

purity of justice dispensation system. The balanced perception is the

warrant and that is how the scheme of the 1984 Act has to be

understood and appreciated.

17.Let us now proceed to analyse the fundamental intent of the

scheme of the 1984 Act. Section 4 of the 1984 Act deals with the

appointment of the judges. Section 5 provides for association of social

welfare agencies, etc. It engrafts that the State Government may, in

consultation with the High Court, provide, by rules, for the association

in such manner and for such purposes and subject to such conditions

20

as may be specified in the rules, with a Family Court of institutions or

organisations engaged in social welfare or the representatives

thereof; persons professionally engaged in promoting the welfare of the

family; persons working in the field of social welfare; and any other

person whose association with a Family Court would enable it to

exercise its jurisdiction more effectively in accordance with the purposes

of the 1984 Act. The aforesaid provision, as is evident, conceives

involvement of institutions or organizations engaged in social welfare or

their representatives and professionals engaged in promoting the welfare

of the family for the purpose of effective functioning of the Family Court

to sub-serve the purposes of the Act. Thus, the 1984 Act, to achieve its

purpose, conceives of involvement of certain categories so that, if

required, the Family Court can take their assistance to exercise its

jurisdiction in an effective manner.

18.Section 6 provides for counselors, officers and other employees of

Family Courts. Section 7 deals with the jurisdiction of the Family Court.

The jurisdiction conferred on the Family Court, as we perceive, is quite

extensive. It confers power in a Family Court to exercise jurisdiction

exercisable by any district court or any subordinate civil court under

any law relating to a suit or a proceeding between the parties to a

21

marriage or a decree of a nullity of marriage declaring the marriage to be

null and void or annulling the marriage, as the case may be, or

restitution of conjugal rights or judicial separation or dissolution of

marriage. It has the authority to declare as to the validity of a marriage

so as to annul the matrimonial status of any person and also the power

to entertain a proceeding with respect to the property of the parties to a

marriage or either of them. The Family Court has the jurisdiction to

pass an order or injunction in circumstances arising out of a marital

relationship, declare legitimacy of any person and deal with proceedings

for grant of maintenance, guardianship of the person or the custody of

or access to any minor. That apart, it has also been conferred the

authority to deal with the applications for grant of maintenance for wife

and children and parents as provided under the CrPC.

19.Section 9 prescribes the duty of the Family Court to make efforts

for settlement by rendering assistance and persuading the parties for

arriving at a settlement in respect of the subject matter of the suit or

proceeding. For the said purpose, it may follow the procedure laid down

by the High Court. If in any suit or proceeding, at any stage, it appears

to the Family Court that there is a reasonable opportunity of settlement

22

between the parties, it may adjourn the proceedings for such period as it

thinks fit to enable attempts to be made to effect such a settlement.

20.Section 11 provides for proceedings to be held in camera. The

provision, being significant, is reproduced below:-

“Section 11. Proceedings to be held in camera.—In every

suit or proceedings to which this Act applies, the proceedings

may be held in camera if the Family Court so desires and

shall be so held if either party so desires.”

On a plain reading of the aforesaid provision, it is limpid that if the

Family Court desires, the proceedings should be held in camera and it

shall be so held if either of the parties so desires. A reading of the said

provision, as it seems to us, indicates that, once one party makes a

prayer for holding the proceedings in camera, it is obligatory on the part

of the Family Court to do so.

21.Section 12 stipulates for assistance of medical and welfare experts

for assisting the Family Court in discharging the functions imposed by

the Act.

22.At this juncture, it is profitable to refer to certain provisions of the

1955 Act. Section 22 of the said Act provides for proceedings to be in

camera and stipulates that the proceeding may not be printed or

23

published. Section 23(2) of the 1955 Act enjoins that before proceeding

to grant any relief under this Act, it shall be the duty of the court in the

first instance, in every case where it is possible to do so consistently

with the nature and circumstances of the case, to make every endeavour

to bring about a reconciliation between the parties. The said provision is

not applicable to any proceeding wherein relief is sought on any of the

grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause

(vi) or clause (vii) of sub-section (1) of Section 13. Sub-section (3) of

Section 23 permits the Court to take aid of a person named by the

parties or of any person nominated by the Court to bring out a

resolution. It enables the Court, if it so thinks, to adjourn the

proceedings for a reasonable period not exceeding fifteen days and refer

the matter to any person named by the parties in this behalf or to any

person nominated by the court if the parties fail to name any person,

with directions to report to the court as to whether reconciliation can be

and has been effected and the court shall, in disposing of the

proceeding, have due regard to the report.

23.It is worthy to note here that the reconciliatory measures are to be

taken at the first instance and emphasis is on efforts for reconciliation

failing which the court should proceed for adjudication and the

24

command on the Family Court is to hold it in camera if either party so

desires.

24.Section 26 of the 1955 Act deals with custody of children. It

empowers the court, from time to time, to pass such interim orders and

make such provisions in the decree as it may deem just and proper with

respect to the custody, maintenance and education of minor children

consistently with their wishes, wherever possible, and the Government

may, after the decree, upon application by petition for the purpose,

make from time to time, all such orders and provisions with respect to

the custody, maintenance and education of such children as might have

been made by such decree or interim orders in case the proceedings for

obtaining such decree were still pending, and the court may also, from

time to time, revoke, suspend or vary any such orders and provisions

previously made. The proviso appended thereto postulates that the

application with respect to the maintenance and education of the minor

children, pending the proceeding for obtaining such decree, shall, as far

as possible, be disposed of within sixty days from the date of service of

notice on the respondent.

25

25.It is to be borne in mind that in a matter relating to the custody of

the child, the welfare of the child is paramount and seminal. It is

inconceivable to ignore its importance and treat it as secondary. The

interest of the child in all circumstances remains vital and the Court

has a very affirmative role in that regard. Having regard to the nature of

the interest of the child, the role of the Court is extremely sensitive and

it is expected of the Court to be pro-active and sensibly objective.

26.In Mausami Moitra Ganguli v. Jayant Ganguli

25

, it has been

held that the principles of law in relation to the custody of a minor child

are well settled. While determining the question as to which parent the

care and control of a child should be committed, the first and the

paramount consideration is the welfare and interest of the child and not

the rights of the parents under a statute. The provisions contained in

the Guardians and Wards Act, 1890 and the Hindu Minority and

Guardianship Act, 1956 hold out the welfare of the child as a

predominant consideration because no statute on the subject can

ignore, eschew or obliterate the vital factor of the welfare of the minor.

27.In the said case, a passage from Halsbury’s Laws of England (4

th

Edn., Vol. 13) was reproduced which reads thus:-

25

26

“809. Principles as to custody and upbringing of minors.—

Where in any proceedings before any court, the custody or

upbringing of a minor is in question, the court, in deciding

that question, must regard the welfare of the minor as the

first and paramount consideration, and must not take into

consideration whether from any other point of view the claim

of the father in respect of such custody or upbringing is

superior to that of the mother, or the claim of the mother is

superior to that of the father. In relation to the custody or

upbringing of a minor, a mother has the same rights and

authority as the law allows to a father, and the rights and

authority of mother and father are equal and are exercisable

by either without the other.”

28.In Rosy Jacob v. Jacob A. Chakramakkal

26

, the Court ruled that

the children are not mere chattels, nor are they mere playthings for their

parents. Absolute right of parents over the destinies and the lives of

their children has, in the modern changed social conditions, yielded to

the considerations of their welfare as human beings so that they may

grow up in a normal balanced manner to be useful members of the

society and the guardian court in case of a dispute between the mother

and the father is expected to strike a just and proper balance between

the requirements of welfare of the minor children and the rights of their

respective parents over them.

26

27

29.In Vikram Vir Vohra v. Shalini Bhalla

27

, the Court took note of

the fact that the learned Judge of the High Court had personally

interviewed the child who was seven years old to ascertain his wishes.

The two Judges of this Court also interacted with the child in the

chambers in the absence of his parents to find out about his wish and

took note of the fact that the child was aged about 10 years and was at

an informative and impressionable stage and eventually opined that the

order passed by the High Court affirming the order of the trial Court

pertaining to visitation rights of the father had been so structured that it

was compatible with the educational career of the child and the rights of

the father and the mother had been well balanced. It is common

knowledge that in most of the cases relating to guardianship and

custody, the Courts interact with the child to know her/his desire

keeping in view the concept that the welfare of the child is paramount.

30.It is essential to reflect on the reasoning ascribed in Krishna Veni

Nagam (supra). As we understand, the two-Judge Bench has taken

into consideration the number of cases filed before this Court and the

different approaches adopted by this Court, the facet of territorial

jurisdiction, doctrine of forum non-conveniens which can be applicable

27

28

to matrimonial proceedings for advancing the interest of justice, the

problems faced by the husband, the recourse taken by this Court to

videoconferencing in certain cases and on certain occasions, the

advancement of technology, the role of the High Courts to issue

appropriate administrative instructions to regulate the use of

videoconferencing for certain categories of cases and ruled that the

matrimonial cases where one of the parties resides outside the court’s

jurisdiction do fall in one of such categories.

31.Before we proceed to analyse further, we would like to cogitate on

the principles applied in the decisions rendered in the context of

videoconferencing. In State of Maharashtra v. Dr. Praful B. Desai

28

,

the proceedings related to recording of evidence where the witness was

in a foreign country. In Kalyan Chandra Sarkar v. Rajesh Ranjan

alias Pappu Yadav & Anr .

29

, the controversy pertained to a criminal

trial under Section 302 IPC wherein the Court, in exercise of power

under Article 142 of the Constitution, directed shifting of the accused

from a jail in Patna to Tihar Jail at Delhi. In that context, the Court

permitted conducting of the trial with the aid of videoconferencing. In

28

29

29

Budhadev Karmaskar (4) v. State of West Bengal

30

, the issue of

videoconferencing had arisen as the lis related to rehabilitation of sex

workers keeping in view the interpretation of this Court of ‘life’ to mean

life of dignity.

32.In Malthesh Gudda Pooja v. State of Karnataka & Ors.

31

, the

question that fell for consideration was whether a Division Bench of the

High Court, while considering a memo for listing an appeal restored for

fresh hearing, on grant of application for review by a co-ordinate Bench,

could refuse to act upon the order of review on the ground that the said

order made by a Bench different from the Bench which passed the

original order granting review is a nullity. We need not dilate upon what

ultimately the Court said. What is necessary to observe is what

arrangement should be made in case of a High Court where there are

Principal Seat and Circuit Benches and Judges move from one Bench to

another for some time and decide the matters and review is filed. In

that context, the Court opined:-

“… when two Judges heard the matter at a Circuit Bench, the

chances of both Judges sitting again at that place at the same

time, may not arise. But the question is in considering the

applications for review, whether the wholesome principle

30

31

30

behind Order 47 Rule 5 of the Code and Chapter 3 Rule 5 of

the High Court Rules providing that the same Judges should

hear it, should be dispensed with merely because of the fact

that the Judges in question, though continue to be attached

to the Court are sitting at the main Bench, or temporarily at

another Bench. In the interests of justice, in the interests of

consistency in judicial pronouncements and maintaining the

good judicial traditions, an effort should always be made for

the review application to be heard by the same Judges, if they

are in the same Court. Any attempt to too readily provide for

review applications to be heard by any available Judge or

Judges should be discouraged.”

And further:-

“With the technological innovations available now, we do not

see why the review petitions should not be heard by using the

medium of video conferencing.”

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, 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.

34.The two-Judge Bench has also noted the constitutional scheme

that provides for guaranteeing equal access to justice and the power of

31

the State to make special provisions for women and children as

enshrined under Article 15(3) of the Constitution and the duty to uphold

the dignity of women and the various steps taken in the said direction.

The Court has also referred to Articles 243-D and 243-T of the

Constitution under which provisions have been made for reservation for

women in Panchayats and Municipalities by the 1973 and 1974

amendments. It has also taken note of the Convention on the

Elimination of All Forms of Discrimination against Women (CEDAW)

that underlines the awareness of the international commitments on the

subject. There is also reference to various authorities of the Court that

have referred to the international conventions and affirmative facet

enshrined under Article 15(3) of the Constitution. We must immediately

clarify that these provisions of the Articles of the Constitution and the

decisions find place in the footnote of the judgment to highlight the

factum that various steps have been taken to uphold the dignity of

women.

35.The two-Judge Bench has referred to certain judgments to

highlight the affirmative rights conferred on women under the

Constitution. We shall refer to them and explain how they are rendered

in a different context and how conducting of matrimonial disputes

32

through videoconferencing would scuttle the rights of women and not

expand the rights. In Mackinnon Mackenzie & Co. Ltd v. Audrey

D’costa and another

32

, the Court dealt with the principle of

applicability of equal pay for equal work to lady stenographers in the

same manner as male stenographers. A contention was advanced by

the employer that this discrimination between the two categories had

been brought out not merely on the ground of sex but the Court found it

difficult to agree with the contention and referred to various aspects

and, eventually, did not interfere with the judgment of the High Court

that had granted equal remuneration to both male and female

stenographers. In Vishaka and others v. State of Rajasthan and

others

33

, the three-Judge Bench, taking note of Articles 14, 15, 19(1)(g),

21 and 51-A and further highlighting the concept of gender equality and

the recommendations of CEDAW and the absence of domestic law, laid

down guidelines and norms for observation at work places and other

institutions for the purpose of effective enforcement of the basic human

right of gender equality and sexual harassment and abuse, more

particularly, sexual harassment at work places.

32

33

33

36.In Arun Kumar Agrawal and another v. National Insurance

Company Limited and others

34

, the lis arose pertaining to the criteria

for determination of compensation payable to the dependants of a

woman who died in a road accident and who did not have regular source

of income. Singhvi, J. opined that it is highly unfair, unjust and

inappropriate to compute the compensation payable to the dependants

of a deceased wife/mother who does not have a regular income by

comparing her services with that of a housekeeper or a servant or an

employee who works for a fixed period. The gratuitous services rendered

by the wife/mother to the husband and children cannot be equated with

the services of an employee and no evidence or data can possibly be

produced for estimating the value of such services. Ganguly, J., in his

concurring opinion, said that women make a significant contribution at

various levels. He referred to numerous authorities and ruled:-

“63. Household work performed by women throughout

India is more than US $612.8 billion per year (Evangelical

Social Action Forum and Health Bridge, p. 17). We often

forget that the time spent by women in doing household

work as homemakers is the time which they can devote to

paid work or to their education. This lack of sensitiveness

and recognition of their work mainly contributes to

women’s high rate of poverty and their consequential

oppression in society, as well as various physical, social

and psychological problems. The courts and tribunals

34

34

should do well to factor these considerations in assessing

compensation for housewives who are victims of road

accidents and quantifying the amount in the name of fixing

“just compensation”.

64. In this context the Australian Family Property Law has

adopted a very gender sensitive approach. It provides that

while distributing properties in matrimonial matters, for

instance, one has to factor in “the contribution made by a

party to the marriage to the welfare of the family

constituted by the parties to the marriage and any children

of the marriage, including any contribution made in the

capacity of a homemaker or parent.”

37. In Voluntary Health Association of Punjab v. Union of India

and others

35

, the two-Judge Bench which was dealing with the sharp

decline in female sex ratio and mushrooming of various sonography

centers, issued certain directions keeping in view the provisions of the

Medical Termination of Pregnancy Act, 1971 and the Pre-Conception

and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)

Rules, 1996. The concurring opinion adverted to the direction

contained in point 9.8 of the main judgment which related to the steps

taken by the State Government and the Union Territory to educate the

people of the necessity of implementing the provisions of the said Act by

conducting workshops as well as awareness camps at the State and

district levels. In the concurring opinion, reference was made to the

35

35

authority in State of H.P. v. Nikku Ram

36

and M.C. Mehta v. State of

T.N.

37

and it was stated:-

“A woman has to be regarded as an equal partner in the life

of a man. It has to be borne in mind that she has also the

equal role in the society i.e. thinking, participating and

leadership. The legislature has brought the present piece of

legislation with an intention to provide for prohibition of

sex selection before or after conception and for regulation

of pre-natal diagnostic techniques for the purposes of

detecting genetic abnormalities or metabolic disorders or

chromosomal abnormalities or certain congenital

malformations or sex-linked disorders and for the

prevention of their misuse for sex determination leading to

female foeticide. The purpose of the enactment can only be

actualised and its object fruitfully realised when the

authorities under the Act carry out their functions with

devotion, dedication and commitment and further there is

awakened awareness with regard to the role of women in a

society.”

38.In Charu Khurana and others v. Union of India and others

38

,

the controversy arose about the prevalence of discrimination of gender

equality in the film industry where women were not allowed to become

make-up artists and only allowed to work as hair-dressers. Referring to

various earlier judgments and Article 51-A(e), the Court observed:-

“On a condign understanding of clause (e), it is clear as a

cloudless sky that all practices derogatory to the dignity of

women are to be renounced. Be it stated, dignity is the

36

37

38

36

quintessential quality of a personality and a human frame

always desires to live in the mansion of dignity, for it is a

highly cherished value.”

And again:

“…The sustenance of gender justice is the cultivated

achievement of intrinsic human rights. Equality cannot be

achieved unless there are equal opportunities and if a

woman is debarred at the threshold to enter into the

sphere of profession for which she is eligible and qualified,

it is well-nigh impossible to conceive of equality. It also

clips her capacity to earn her livelihood which affects her

individual dignity.”

39.Eventually, directions were issued that women were eligible to

become make-up artists. The aforesaid decisions unequivocally lay

stress and emphasis on gender equality and dignity of women.

40.In Voluntary Health Association of Punjab v. Union of India

and Ors

39

, while dealing with female foeticide, it has been observed:-

“It needs no special emphasis that a female child is entitled

to enjoy equal right that a male child is allowed to have.

The constitutional identity of a female child cannot be

mortgaged to any kind of social or other concept that has

developed or is thought of. It does not allow any room for

any kind of compromise. It only permits affirmative steps

that are constitutionally postulated. Be it clearly stated

that when rights are conferred by the Constitution, it has

to be understood that such rights are recognised regard

being had to their naturalness and universalism. No one,

let it be repeated, no one, endows any right to a female

39

37

child or, for that matter, to a woman. The question of any

kind of condescension or patronisation does not arise.”

41.Emphasizing on the equality and dignity of women, it has been

stated:-

“... let it be stated with certitude and without allowing any

room for any kind of equivocation or ambiguity, the

perception of any individual or group or organisation or

system treating a woman with inequity, indignity,

inequality or any kind of discrimination is constitutionally

impermissible. The historical perception has to be given a

prompt burial. Female foeticide is conceived by the society

that definitely includes the parents because of unethical

perception of life and nonchalant attitude towards law. The

society that treats man and woman with equal dignity

shows the reflections of a progressive and civilised society.

To think that a woman should think what a man or a

society wants her to think tantamounts to slaughtering her

choice, and definitely a humiliating act. When freedom of

free choice is allowed within constitutional and statutory

parameters, others cannot determine the norms as that

would amount to acting in derogation of law.”

42.In Vikas Yadav v. State of Uttar Pradesh and others

40

,

condemning honour killing, the Court after referring to Lata Singh v.

State of U.P.

41

and Maya Kaur Baldevsingh Sardar v. State of

Maharashtra

42

, has opined:-

40

41

42

38

“One may feel “My honour is my life” but that does not

mean sustaining one’s honour at the cost of another.

Freedom, independence, constitutional identity, individual

choice and thought of a woman, be a wife or sister or

daughter or mother, cannot be allowed to be curtailed

definitely not by application of physical force or threat or

mental cruelty in the name of his self-assumed honour.

That apart, neither the family members nor the members of

the collective has any right to assault the boy chosen by

the girl. Her individual choice is her self-respect and

creating dent in it is destroying her honour. And to impose

so-called brotherly or fatherly honour or class honour by

eliminating her choice is a crime of extreme brutality, more

so, when it is done under a guise. It is a vice, condemnable

and deplorable perception of “honour”, comparable to

medieval obsessive assertions.”

43.The aforesaid enunciation of law makes it graphically clear that the

“constitutional identity”, “freedom of choice”, “dignity of a woman” and

“affirmative rights conferred on her by the Constitution” cannot be

allowed to be abrogated even for a moment. In this context, we have to

scan and appreciate the provision contained in Section 11 of the 1984

Act. The provision, as has been stated earlier, mandates the proceedings

to be held in camera if one of the parties so desires. Equality of choice

has been conferred by the statute. That apart, Section 22 of the 1955

Act lays down the proceedings to be held in camera and any matter in

relation to any such proceeding may not be printed or published except

a judgment of the High Court or of the Supreme Court with the previous

permission of the Court.

39

44.We, as advised at present, constrict our analysis to the provisions

of the 1984 Act. First, as we notice, the expression of desire by the wife

or the husband is whittled down and smothered if the Court directs that

the proceedings shall be conducted through the use of

videoconferencing. As is demonstrable from the analysis of paragraph

14 of the decision, the Court observed that wherever one or both the

parties make a request for the use of videoconferencing, the proceedings

may be conducted by way of videoconferencing obviating the need of the

parties to appear in person. The cases where videoconferencing has

been directed by this Court are distinguishable. They are either in

criminal cases or where the Court found it necessary that the witness

should be examined through videoconferencing. In a case where the

wife does not give consent for videoconferencing, it would be contrary to

Section 11 of the 1984 Act. To say that if one party makes the request,

the proceedings may be conducted by videoconferencing mode or system

would be contrary to the language employed under Section 11 of the

1984 Act. The said provision, as is evincible to us, is in consonance with

the constitutional provision which confer affirmative rights on women

that cannot be negatived by the Court. The Family Court also has the

jurisdiction to direct that the proceedings shall be held in camera if it so

40

desires and, needless to say, the desire has to be expressed keeping in

view the provisions of the 1984 Act.

45.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 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 recognizes 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

41

out by the legislature. The Court has to play a diligent and effective role

in this regard.

46. 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 Justice K.S. Puttaswamy

(Retd) v. Union of India & others

43

, this Court, speaking through one

of us (Chandrachud, J.), has ruled thus:-

“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, they create a private space which protects all those

43

42

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:

“Privacy represents the core of the human personality and

recognizes the ability of each individual to make choices

and to take decisions governing matters intimate and

personal.”

47.Frankfurter Felix in Schulte Co. v. Gangi

44

, 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, in Hopkins Savings Assn. v. Cleary

45

, 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.

48.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

44

45

43

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.

49.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

sometime, is not possible in videoconferencing and if possible, it is very

doubtful whether the emotional bond can be established in a virtual

44

meeting during videoconferencing. Videoconferencing may create a dent

in the process of settlement.

50.The two-Judge Bench 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.

51.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 and Ors v. State of Maharashtra and

Anr.

46

, after enunciating the universally accepted proposition in favour

of open trials, expressed:-

46

45

“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 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.”

52.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

46

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.

53.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 had 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.

54.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 (supra) that if either of the parties gives

consent, the case can be transferred, is absolutely unacceptable.

47

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 (supra), 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 video conferencing, 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 be conferred on the

48

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 video

conferencing. 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.

55.Be it noted, sometimes, transfer petitions are filed seeking transfer

of cases instituted under the Protection of Women from Domestic

Violence Act, 2005 and cases registered under the IPC. As the cases

under the said Act and the IPC have not been adverted to in Krishna

Veni Nagam (supra) or in the order of reference in these cases, we do

intend to advert to the same.

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

follows :-

49

(i)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.

(ii)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

concerned Family Court, it may exercise the discretion to allow the

said prayer.

(iii)After the settlement fails, if the Family Court feels it appropriate

having regard to the facts and circumstances of the case that

videoconferencing will sub-serve the cause of justice, it may so

direct.

(iv)In a transfer petition, video conferencing cannot be directed.

(v)Our directions shall apply prospectively.

(vi)The decision in Krishna Veni Nagam (supra) is overruled to the

aforesaid extent

57.We place on record our appreciation for the assistance rendered by

Mr. Ajit Kumar Sinha, learned senior counsel.

50

58.The matters be placed before the appropriate Bench for

consideration of the transfer petitions on their own merits.

………………………….CJI.

(Dipak Misra)

….………………………….J.

(A.M. Khanwilkar)

New Delhi.

October 9, 2017.

51

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) No. 1278 OF 2016

SANTHINI ..... PETITIONER

Versus

VIJAYA VENKETESH ..... RESPONDENT

WITH T.P. (C ) NO.422 OF 2017

J U D G M E N T

Dr D Y CHANDRACHUD, J

I 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

52

learned Chief Justice will be delivered separately. I record

below my conclusions:

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.

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 leveler.

53

3.Video conferencing is a technology which allows users in

different locations to hold face to face meetings. Video

conferencing is being used extensively the world over

(India being no exception) in on line teaching,

administration, meetings, negotiation, mediation and

telemedicine among a myriad other uses. Video

conferencing reduces cost, time, carbon footprint and the

like.

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 video conferencing

techniques. A trial in-camera postulates the exclusion of

the public from the courtroom and allows for restraints

on public reporting. Video conferencing does not have to

be recorded nor is it accessible to the press or the public.

The proper adoption of video conferencing does not

negate the postulates of an in-camera trial even if such a

54

trial is required by the court or by one of the parties

under Section 11.

5.The Family Courts Act 1984 envisages an active role for

the Family Court to foster settlements. Under the

provisions of Section 11, 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.

55

6.The above provisions - far from excluding the use of video

conferencing - 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 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 video

conferencing as a facilitative tool, where it is convenient

and readily available. Whether video conferencing should

be allowed must be determined on a case to case analysis

56

to best effectuate the concern of providing just solutions.

Far from such a procedure being excluded by the law, it

will sub serve the purpose of the law.

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. Video conferencing

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.

8.Video conferencing 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

57

technological tools such as video conferencing) will result

in a denial of justice.

9.The High Courts have allowed for video conferencing 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. Video conferencing has been adopted

internationally in resolving conflicts within the family.

There is a robust body of authoritative opinion on the

subject which supports video conferencing, of course

with adequate safeguards. Whether video conferencing

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 video

conferencing must be left to the careful exercise of

discretion of the Family Court in each case.

58

10.The proposition that video conferencing 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 video conferencing

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 video conferencing.

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.

59

IIThe reference should in my opinion be answered in the

above terms.

…......................................J.

[Dr D Y CHANDRACHUD]

New Delhi

October 09, 2017

60

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) No. 1278 OF 2016

SANTHINI ..... PETITIONER

Versus

VIJAYA VENKETESH ..... RESPONDENT

WITH

T.P. (C) NO. 422 OF 2017

J U D G M E N T

Dr D Y CHANDRACHUD, J

1 While setting down my inability to adopt the view propounded in the judgment of

the learned Chief Justice, my conclusions have been formulated thus:

1. The Family Courts Act, 1984 was enacted at a point in time when

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

61

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.

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 leveler.

3. Video conferencing is a technology which allows users in different

locations to hold face to face meetings. Video conferencing is being used

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

administration, meetings, negotiation, mediation and telemedicine among

a myriad other uses. Video conferencing reduces cost, time, carbon

footprint and the like.

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 video conferencing techniques. A

trial in-camera postulates the exclusion of the public from the courtroom

and allows for restraints on public reporting. Video conferencing does not

have to be recorded nor is it accessible to the press or the public. The

proper adoption of video conferencing 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.

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

Court to foster settlements. Under the provisions of Section 11, 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

62

experts and persons professionally engaged in promoting the welfare of

the family.

6. The above provisions - far from excluding the use of video

conferencing - 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 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 video conferencing as a facilitative tool, where it is

convenient and readily available. Whether video conferencing 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 sub serve the purpose of the law.

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. Video

conferencing 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.

8. Video conferencing 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 video conferencing) will result in a

denial of justice.

9. The High Courts have allowed for video conferencing in resolving

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

Indian context. The judges of the High Courts should have a keen sense

of awareness of prevailing social reality in their states and of the federal

structure. Video conferencing has been adopted internationally in

63

resolving conflicts within the family. There is a robust body of authoritative

opinion on the subject which supports video conferencing, of course with

adequate safeguards. Whether video conferencing 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 video conferencing must be left to the careful

exercise of discretion of the Family Court in each case.

10. The proposition that video conferencing 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 video conferencing 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 video conferencing. 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.”

2 I now proceed to indicate my reasons.

3 The three Judge Bench was constituted to decide the correctness of a judgment

rendered by two Judges of this Court in Krishna Veni Nagam v Harish Nagam

47

(“Krishna Veni”). This reference to a larger bench was occasioned by an order of a

Bench of two Judges in Santhini v Vijaya Venketesh

48

(“Santhini”). The analysis of

the issues which arise in the present reference must be prefaced by determining, first

and foremost, the subject of the controversy in Krishna Veni and what the decision

47 (2017) 4 SCC 150

48 Transfer Petition (Civil) No. 1278 of 2016, dated 9 August 2017

64

laid down. In Krishna Veni, this Court dealt with a petition filed under Article 139A of

the Constitution for the transfer of a proceeding for divorce instituted by one spouse

against the other under Section 13 of the Hindu Marriage Act, 1955. The spouse who

sought transfer of the proceedings instituted in the Family Court at Jabalpur to its

counterpart at Hyderabad pleaded for a transfer of proceedings on the ground that she

would face serious hardship in defending a proceeding in a distantly located court. In

the course of its decision, the Bench of two Judges noted that a large number of

transfer petitions are being filed and are “mechanically allowed”. This position was

noted over a decade ago in Anindita Das v Srijit Das

49

. Under Section 19 of the

Hindu Marriage Act, 1955, a petition for divorce could be instituted at the place where

the marriage is solemnized or where the respondent resides at the time when the

petition is presented or where the parties last resided together. Evidently, though one

of the spouses is entitled to institute divorce proceedings at a place contemplated by

Section 19, a woman required to defend the proceeding at a place away from her

residence is subjected to hardship. In many cases, the court alleviates the hardship

involved by directing the payment of expenses incidental to attending hearings in the

location where the divorce proceeding is instituted.

4 Now, it is in this background that the two Judge Bench in Krishna Veni

considered whether video conferencing could suitably be deployed. The court was

conscious of the fact that both the spouses may face genuine difficulties : the spouse

49 (2006) 9 SCC 197

65

against whom the proceeding is instituted would face hardship and inconvenience by

being required to commute to a distant court, while the spouse who has instituted the

proceeding (in a forum which the law permits) may genuinely suffer grave

inconvenience if the proceeding is transferred to a distant court within whose

jurisdiction the other spouse resides. The exercise of the jurisdiction of this Court to

transfer matrimonial proceedings may not always provide a satisfactory solution since

one or the other spouse would in any case suffer inconvenience as a result of the relief

of transfer being refused or, as the case may be, being allowed. This provided the

backdrop to the following observations of the two Judge Bench:

“14. One cannot ignore the problem faced by a husband if

proceedings are transferred on account of genuine difficulties

faced by the wife. The husband may find it difficult to contest

proceedings at a place which is convenient to the wife. Thus,

transfer is not always a solution acceptable to both the parties. It

may be appropriate that available technology of

videoconferencing is used where both the parties have equal

difficulty and there is no place which is convenient to both the

parties. We understand that in every district in the country

videoconferencing is now available. In any case, wherever such

facility is available, it ought to be fully utilised and all the High

Courts ought to issue appropriate administrative instructions to

regulate the use of videoconferencing for certain category of

cases. Matrimonial cases where one of the parties resides

outside court's jurisdiction is one of such categories. Wherever

one or both the parties make a request for use of

videoconferencing, proceedings may be conducted on

videoconferencing, obviating the needs of the party to appear in

person. In several cases, this Court has directed recording of

evidence by video conferencing.”

66

Eventually, the Court directed that while issuing summons in a matrimonial

proceeding, the court where proceedings have been initiated, may examine whether

appropriate safeguards could be introduced to protect the interest of the spouse who

resides outside the jurisdiction and to whom the summons are being issued. Among

those safeguards, is the availability of a video conferencing facility. The above

directions are contained in the following extract from the decision:

“18. We, therefore, direct that in matrimonial or custody matters or in

proceedings between parties to a marriage or arising out of disputes

between parties to a marriage, wherever the defendants/respondents

are located outside the jurisdiction of the court, the court where

proceedings are instituted, may examine whether it is in the interest of

justice to incorporate any safeguards for ensuring that summoning of

defendant/respondent does not result in denial of justice. Order

incorporating such safeguards may be sent along with the summons.

The safeguards can be:

(i) Availability of videoconferencing facility.

(ii) Availability of legal aid service.

(iii) Deposit of cost for travel, lodging and boarding in

terms of Order 25 CPC.

(iv) E-mail address/phone number, if any, at which litigant from

outstation may communicate.”

5 Since the decision in Krishna Veni forms the focus of the present reference, it is

necessary to emphasise what the two Judge Bench held and what it did not. Krishna

Veni notes that a transfer of proceedings (from one state to another) is not always a

solution acceptable to the contesting spouses since one of them would suffer hardship

as a result of the transfer of proceedings. It was in this context that the court observed

67

that “it may be appropriate” to use video conferencing facilities “where both the parties

have equal difficulty and there is no place which is convenient to both the parties”. The

decision does not stipulate a mechanical direction that in every transfer petition parties

should be directed to take recourse to video conferencing facilities. Evidently, the

Court was concerned with the fact that an order of transfer would work to the prejudice

of the spouse against whom the transfer is ordered. Similarly, it is necessary to

emphasise that the two Judge Bench requires the court issuing summons to a spouse

who resides outside its jurisdiction to examine the feasibility of safeguards that would

obviate a denial of justice. One of those safeguards which the court “may examine” is

the availability of a video conferencing facility.

6 Plainly, Krishna Veni does not embody an absolute or invariable mandate that

all transfer petitions should be disposed of by the court, by the application of a

mechanical formula requiring the contesting spouses to take recourse to the facility of

video conferencing. The language of the judgment is permissive and is sufficiently

flexible to accommodate an application of mind to the interests of justice, the position

and circumstances of parties as well as to the feasibility (both in technical and

practical terms) of adopting video conferencing as a solution to spatial distances.

Hence, it is fallacious to read Krishna Veni as a mandate to take recourse to video

conferencing in all transfer petitions filed before this Court. That was not plainly the

intent underlying the judgment nor indeed does such a consequence flow from the

decision.

68

7 While referring the correctness of the view in Krishna Veni to a larger Bench, a

coordinate Bench in Santhini has differed on the use of video conferencing in

matrimonial disputes. The referring order records that while placing reliance on the two

Judge Bench decision in Krishna Veni, orders are being passed by this Court, the

High Courts and by District Courts relegating parties to video conferencing even where

such facilities are not available. The Bench opined that this has made the “situation”

not only of inter-state or intra-state appeal but also of intra-district appeal. As regards

this aspect, it needs really no detailed reasoning to hold that a misconstruction of a

judgment of a court either by coordinate courts or by courts from whose decision an

appeal lies is no justification to overrule the former. It is the misconstruction which has

to be set at rest.

8 Relying upon Section 9 of the Family Courts Act 1984, the court in Santhini was

of the view that it is the mandatory duty of the Family Court to make efforts for

settlement between parties. Invoking the provisions of Sections 22, 23 and 26 of the

Hindu Marriage Act 1955, the court focused on the duty of the court to “make every

endeavor” to make the parties arrive at a reconciliation “in every case where it is

possible so to do consistently with the nature and circumstances of the case”. The

Bench also referred to Order XXXIIA of the Code of Civil Procedure introduced in 1976

to emphasize the duty cast on the Court to make every effort for settlement in family

69

matters. It concluded that Krishna Veni had not considered the above-mentioned

provisions. In doing so, the Bench highlighted the importance of reconciliation in family

matters and observed as follows:

“The principal thrust of the law in family matters is to make an

attempt for reconciliation before processing the disputes in the

legal framework… [I]n reconciliation, the duty-holders have to

take a proactive role to assist the parties to reach an amicable

solution... In reconciliation, as already noted above, the

duty-holders remind the parties of the essential family values, the

need to maintain a cordial relationship, both in the interest of the

husband and wife or the children, as the case may be, and also

make a persuasive effort to make the parties reconcile to the

reality and restore the relationship, if possible. The Family Courts

Act expects the duty-holders like the court, counsellors, welfare

experts and any other collaborators to make efforts for

reconciliation... The role of a counsellor in Family Court is

basically to find out what is the area of incompatibility between

the spouses, whether the parties are under the influence of

anybody or for that matter addicted to anything which affects the

normal family life, whether they are taking free and independent

decisions, whether the incompatibility can be rectified by any

psychological or psychiatric assistance etc. The counsellor also

assists the parties to resume free communication. In custody

matters also the counsellor assists the child, if he/she is of such

age, to accept the reality of incompatibility between the parents

and yet make the child understand that the child is of both

parents and the child has a right to get the love and affection of

both the parents and also has a duty to love and respect both the

parents etc. Essentially, the counsellor assists the parents to

shed their ego and take a decision in the best interest of the

child.”

Expressing its reservations on the use of video conferencing in family matters, the

Bench held that:

“To what extent the confidence and confidentiality will be

safeguarded and protected in video-conferencing, particularly

70

when efforts are taken by the counsellors, welfare experts, and

for that matter, the court itself for reconciliation, restitution of

conjugal rights or dissolution of marriage, ascertainment of the

wishes of the child in custody matters, etc., is a serious issue to

be considered. "It is certainly difficult in video conferencing, if not

impossible, to maintain confidentiality. It has also to be noted that

the footage in video-conferencing becomes part of the record

whereas the reconciliatory efforts taken by the duty-holders... are

not meant to be part of the record. All that apart, in reconciliatory

efforts, physical presence of the parties would make a significant

difference. Having regard to the very object behind the

establishment of the Family Courts Act, 1984, the Code of Civil

Procedure and to the special provisions introduced in the Hindu

Marriage Act under Sections 22, 23 and 26, we are of the view

that the directions issued by this Court in Krishna Veni Nagam

need reconsideration on the aspect of video-conferencing in

matrimonial disputes”.

These observations make it necessary to consider the scheme of the Family Courts

Act, 1984 and to determine whether the use of video conferencing stands excluded by

its provisions.

Statutory Scheme of the Family Courts Act

9 The Family Courts Act, 1984 was enacted to provide for the establishment of family

courts with a view to promote conciliation in and secure speedy settlement of disputes relating

to marriage and family affairs “and for matters connected therewith”.

The Statement of Objects and Reasons of the Family Courts Act, 1984 provides that:

71

“...emphasis should be laid down on conciliation and

achieving socially desirable results and adherence to rigid

rules of procedure and evidence should be eliminated.”

In K A Abdul Jaleel v T A Shahida

50

, this Court held that “the reason for enactment of

the said Act was to set up a court which would deal with disputes concerning the

family by adopting an approach radically different from that adopted in ordinary

civil proceedings”.

Section 9 (1) of the Act casts a duty on the Family Court to make efforts for a

settlement between parties to the matrimonial dispute :

“In every suit or proceeding, endeavour shall be made by

the Family Court in the first instance, where it is possible

to do so consistent with the nature and circumstances

of the case, to assist and persuade the parties in arriving at

a settlement in respect of the subject-matter of the suit or

proceeding and for this purpose a Family Court may,

subject to any rules made by the High Court, follow such

procedure as it may deem fit.”

A similar duty is cast upon the Family Court under Section 23 (2) of the Hindu

Marriage Act, 1955, which states that:

“... it shall be the duty of the Court in the first instance, in

every case where it is possible so to do consistently with

the nature and circumstances of the case, to make every

endeavour to bring about a reconciliation between the

parties”

50 2003 (4) SCC 166

72

The phrase in these provisions “where it is possible to do so consistent with the

nature and circumstances of the case”, acknowledges that it may not be possible to do

so in every case.

In Komal S Padukone v Principal Judge, Family Court, Bangalore City

51

, the

Karnataka High Court held that:

“Section 9 makes it clear that the duty of Family Court to

make efforts for settlement in the first instance is "where it

is possible to do, consistent with the nature and

circumstances of the case". Where one of the parties is

abroad or is disabled, it may not be possible to attempt

settlement in the first instance. But, that does not mean that

the party who is unable to appear, should be denied the

right to prosecute or defend the proceedings. All that it

means is that the effort to make settlement, gets postponed

to a later date when parties are able to appear. In some

cases, it may not be possible to attempt settlement at

all due to the peculiar facts and circumstances.”

10A clear discretion is provided to the Family Court to evolve the procedure which

it will follow during the hearing of a case. The Family Court, however, under Section

9(1) would be subject to the “rules made by the High Court” in this regard. Similarly,

the obligation under Section 23(2) of the Hindu Marriage Act is to make every

endeavour to bring about a reconciliation between the parties, “where it is possible to

do so consistently with the nature and circumstances of the case” .

51 AIR 1999 Kant 427

73

11While dealing with the above provisions, one aspect needs to be discussed. It is

a general belief that the process of reconciliation requires the physical presence of

both the parties at the same place and at the same time. The physical presence of both

the parties together is emphasized since it is perceived that when parties are alone

together they are able to strike an emotional bond, which will not be possible in video

conferencing. Intimate details are to be discussed in an intimate environment.

12The point, however, is whether a hypothesis of desirability should be elevated to

a position of a legal principle which allows no interface of technology in the course of

settlement. To appreciate the issue, it is necessary to understand and demystify

technology.

Video conferencing and the statute

13Video conferencing transmits video, audio and data across a communications

network enabling geographically dispersed participants to meet synchronously. ‘The

general keyword associated with video conferencing is interactivity. This allows real

time visual and audio contact between two or more persons at different geographical

locations.’

52

The emotional attachment which people can develop (or rekindle) when

are in the same physical space cannot be undermined. However, it must be noted that

the effect of video-conferencing is that people who are not present at the same place

52 “The Technology and Pedagogy of Two-way communication over Geographical

distance”, University of Malta (2013), available at

https://www.um.edu.mt/itservices/documents/guides/videoconferencingguides/VC_full_guide.pdf

74

and at the same time are able to interact with each other as if they are present

together. The premise, in the referring judgment that “the footage in video conferencing

becomes part of the record” is incorrect. It does not necessarily become a part of the

record. Discussions relayed through video conferencing in the course of settlement will

of course not be recorded. Technology answers our commands.

14Section 10 (3) of the Family Courts Act enables a Family Court to lay down its

own procedure with a view to arrive at a settlement in respect of the subject-matter of

the suit or proceedings. Far from embodying a specific bar or prohibition to the use of

video conferencing, this provision gives the Family Court ample powers to use video

conferencing in matrimonial disputes, where appropriate.

15Section 11 of the Family Courts Act provides for “in camera” proceedings in

specified circumstances. It states:

“In every suit or proceedings to which this Act applies, the

proceedings may be held in camera if the Family Court so

desires and shall be so held if either party so desires.”

Section 11 uses both the expression “may” and “shall”. The Family Court has the

discretion to order an in-camera trial. However, when a party desires an in-camera

trial, it is obligatory to do so. Hence, in-camera trials are not mandated in every case in

the Family Court.

75

Section 22 of the Hindu Marriage Act, 1955 provides for proceedings to be in camera

and stipulates that the proceeding may not be printed or published.

While analyzing whether video conferencing would be contrary to Section 11 of the

Family Courts Act and Section 22 of the Hindu Marriage Act, it would be necessary to

understand the meaning of the phrase “in-camera”.

Black’s Law Dictionary defines “in-camera” as follows

53

:

“In chambers; in private. A cause is said to be heard in

camera either when the hearing is had before the judge in

his private chambers or when all spectators are excluded

from the courtroom.”

16Video conferencing and in-camera proceedings are not irreconciliable. Video

conferencing, in itself, is a private interaction. It does not involve third persons or

spectators apart from the two participants between whom the video conferencing is

taking place (judge or counsellor and one of the parties to the dispute). As long as it is

not accessible to the public, privacy is maintained. Therefore, it does not run contrary

to the intent of Section 11, which is to maintain privacy. The same level of privacy that

is afforded to parties during in-camera proceedings which take place in the same

physical space, can be maintained over the virtual space of video conferencing.

Technology also allows us to ensure that there is no record of the conversation which

took place through video conferencing, once the conversation is over. This is similar to

a telephone call (unless the call was being recorded). Technology provides flexibility.

53 Black’s Law Dictionary, West Publishing Co. (1979), at page 681.

76

Discussions across an audio-visual link in the course of counselling or conciliation will

not be recorded so as to maintain privacy and intimate confidences. On the other hand,

where in the course of a trial, a judge requires that a record of the deposition be

maintained, technology will facilitate it.

In fact, one of the advantages of adopting video conferencing technology in trials of

disputes, which has been acknowledged in various jurisdictions where this is being

practised, is the increased accuracy that results from the judge having access to the

recorded video. Even if a video conference is recorded for this purpose, the records

can be destroyed after the judgment is delivered or once the purpose of recording by

the judge has been served.

17This Court must also take a robust view of today’s conditions. We are living in an

age of technology. Men and women have access to and are in possession of

instruments which use advanced technologies. The reality is that the world is not a

closed space. It has never been, and is becoming increasingly interconnected. People

are constantly moving from one place to another in the course of their personal and

professional pursuits. In spite of the distances that this movement entails, people are

able to interact with each other because of digital facilities. Most desktops and mobile

devices have cameras, thereby facilitating the ease of online communications in the

audio-visual mode.

77

18Video conferencing has made face-to-face interactions possible even in the

absence of physical proximity. Technological developments have brought a turning

point in the history of human civilization and have resulted in enhanced efficiency,

productivity and quality of output in every walk of life. Technology has paved the way

for an open and accessible world where physical barriers to communication and

connectivity have broken down.

19Technology must also be seen as a way of bringing services into remote areas

to deal with problems associated with the justice delivery system. With the increasing

cost of travelling and other expenses, video conferencing can provide a cost-effective

and efficient alternative. Solutions based on modern technology allow the court to

enhance the quality and effectiveness of the administration of justice. The use of

technology can maximize efficiency and develop innovative methods for delivering

legal services. Technology based solutions must be adopted to facilitate access to

justice. Family courts are overburdened with all too familiar problems : too few courts,

vacancies in judge strength and a creaking infrastructure. Men and women in

matrimonial distress have their woes compounded in the justice delivery system.

Repeated adjournments break the back of the litigant. We must embrace technology

and not retard its application to make the administration of justice efficient.

20The pervasive problem of pendency, the barriers to access to justice in India,

and the inability of the judicial process to ensure timely and effective justice calls for a

78

wide range of reforms. There is a widespread concern that the manner in which

disputes are resolved in the judicial process is expensive and causes hardships to

litigants. Due to advances in technology and tools for video conferencing, even when

parties are not in proximity to each other, conflicts can be resolved effectively.

All the statutory provisions noted above apply to ‘parties’. Since these provisions are

applicable to parties equally, regardless of gender, they are gender-neutral.

High Court decisions

21 Even prior to Krishna Veni there has been a line of judgments of various High

Courts which have allowed video conferencing in matrimonial disputes. These

decisions are important because they indicate a robust attempt to foster flexible,

technology-based solutions, in the context of matrimonial disputes. High Courts in

each state are aware of the social and economic circumstances prevailing there and

the feasibility of adopting technology. These decisions must be given credence

because unless there is a manifest failure of justice under law or a cause of public

injury, the assessment by the High Courts of local conditions ought to be respected.

This to my mind is the mandate of a vibrant federal structure.

In Mukesh Narayan Shinde v Palak Mukesh Shinde Nee Palak D Patel

54

(2012),

the petitioner husband and respondent wife had decided to convert a Petition filed

54 2012 (3) ALLMR 521

79

under Section 13(1)(ia) to a Petition for divorce by mutual consent under Section 13B

of the Hindu Marriage Act, 1955. The husband was residing in Mumbai, while the wife

was residing in the US. The request was rejected by the Family Court holding that the

respondent wife was absent throughout and counselling had not taken place in that

matter. The Bombay High Court set aside the order of the Family Court and held that:

“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 globalization 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.” (emphasis supplied)

The High Court directed the Family Court to arrange a video conference of the

Marriage Counsellor with a respondent wife in the Court with the help of a

computer/laptop or by using a webcam and also to verify and record online consent.

80

Parties were directed to appear before the Family Court so as to enable it to give

directions to make arrangements for counselling and verification by video conference.

In Blessy Varghese Edattukaran v Sonu

55

(2015), a Division Bench of the Kerala

High Court, while dealing with the issue of divorce by mutual consent held that:

“[T]his Court is of the considered opinion that, the intention

of the legislature contained in S. 9(1) of the Family Courts

Act does not insist upon the Family Court to direct the

parties to undergo the process of counselling invariably in

all the cases as a mandatory requirement… the endeavour

by the Court to assist and to persuade the parties in

arriving at a settlement is required only if it is possible

to do so and is consistent with the nature and

circumstances of the case... But in cases where any

one of the parties or both the parties makes an

application to the court to dispense with the procedure

of counselling due to their non-availability in the

country or due to any other valid reasons

incapacitating their personal appearance, then it will be

left open to the Family Courts to consider such

applications and to allow the exemption from

undergoing counselling with respect to either one of

the parties or to both the parties, as the case may be. In

such situation it is also not necessary in all the cases

to insist upon both the parties to have counselling

'together'... Possibility for conducting the counselling

through "video conferencing" using computer/laptop or

mobile phones having requisite facility also can be

explored and permitted.” (emphasis

supplied)

In Finy Susan Francis v Binu Philip Paul

56

(2015), parties jointly requested the

Family Court to direct the Counsellor to conduct counselling through a video

55 2015 (4) KLT 572

56 O.P. (FC). No. 401 of 2015 (R)

81

conference. The Family Court declined the request, while holding that counselling is

mandatory and finding that no facilities were available in the court for conducting

counselling through video conference. The Division Bench of the Kerala High Court

held that the Family Court ought to have considered the feasibility of counselling being

done through video conferencing with the help of a computer/laptop or through a cell

phone having facilities for the said purpose. The court therefore quashed the order of

the Family Court and granted liberty to the parties to approach the Family Court

seeking to dispense with the process of counselling or else to seek permission for

arranging counselling through video conferencing by offering to provide necessary

facilities.

In Suvarna Rahul Musale v Rahul Prabhakar Musale

57

(2014), the Bombay High

Court allowed the Petitioner-wife who was staying in the US to record evidence by way

of video recording. It was held that:

“The petitioner/wife has moved an Application for recording

of evidence through video conferencing because she is

working in U.S. She has a minor daughter aged about 6

years and stays with her. It is a different and distant country.

Travelling to and fro from U.S. to India is undoubtedly

financially expensive so also it is difficult for a mother of 6

years old girl to arrange the logistics. Though in the

Application only financial difficulty and inconvenience is

mentioned, it is necessary to understand what kind of

inconvenience a mother of 6 years old child can face if she

has to travel from U.S. to India to give evidence. Moreover

57 (2015) 7 Bom CR 608

82

she is a working lady and may face difficulty in getting leave

and may be some hurdles in VISA. Hence, the Application

for video conferencing is justified on all counts…

It is to be noted that our legislature has wisely taken note of

this fact and accordingly has made the changes in the

Evidence Act by amending Section 65 and thereby section

65A, 65B are inserted on the point of recording of evidence

relating to electronic record and admissibility of electronic

record. When the legislature has expanded the scope of

term 'Evidence' acknowledging advance technology and

scientific methods used by people in their day-to-day

activities, it is the duty of the Judicial officers to put life to

those letters of law by interpreting them effectively...

An attitudinal change in Judges is required. We need to

train ourselves to understand the pulse of the new

generation who is avidly techno savvy. Though it is difficult

for the Judges, especially who are in their middle age, to

accept and digest the entry of new language and methods

of evidence in the established judicial system, it is high time

for us to change our mindset and see whether this new

technology can help us to increase the speed and also we

have to take into account the convenience of the parties as

our judicial system is necessarily litigant centric...

The presence of the person can be obtained physically so

also virtually. What is important is that a person should be

seen and be heard and vice versa. These are the methods

of distant communication, which is possible by virtual

measures and microspeakers. Therefore, it is not

necessary for the Judge to insist for the physical presence

of the witness when it is not possible especially in the

circumstances of this case, a virtual presence can be

secured which is very much legal and for this purpose, it is

not necessary for the Judge himself to give time but such

evidence can be recorded by appointing Commissioner.”

83

Sirangai Shoba v Sirangi Muralidhar Rao

58

(2017) concerned the legality and

correctness of an order allowing examination on Skype technology for recording

evidence in a divorce petition. Allowing the use of Skype technology for witness

testimony, the High Court of Andhra Pradesh held:

“[T]here is no foundation to say the request to record

evidence through Skype technology is a device to avoid

facing the criminal case allegedly filed against him and so

far as the apprehensions as to demeanor and possibility of

prompting or tutoring can be taken care of with necessary

precautions, the reconciliation also can be done if need be

by use of Skype technology, there are no grounds to

interfere with the impugned order of the lower Court

permitting the recording of evidence of the party- witness

abroad through Advocate Commissioner and by use of

Skype technology, but for to give necessary directions of

the precautions required to be taken to ease out the

apprehensions of the other side in giving disposal of the

revision petition.”

The Andhra Pradesh High Court relied upon a decision of a Division Bench of the

Delhi High Court in International Planned Parenthood Federation (IPPF) v Madhu

Bala Nath

59

, where it was observed that Courts must be liberal to record evidence

through video conferencing in order to save time or avoid inconvenience:

“Procedures have been laid down to facilitate dispensation

of justice. Dispensation of justice entails speedy justice and

justice rendered with least inconvenience to the parties as

well as to the witnesses. If a facility is available for

recording evidence through video conferencing, which

avoids any delay or inconvenience to the parties as well as

58 AIR 2017 AP 88

59 AIR 2016 Delhi 71

84

to the witnesses, such facilities should be resorted to.

Merely because a witness is travelling and is in a position to

travel does not necessary imply that the witness must be

required to come to Court and depose in the physical

presence of the court.”

In International Planned Parenthood Federation (IPPF) v Madhu Bala Nath

60

(2016), the

Division Bench of the Delhi High Court noted that :

“...Video-conferencing is an advancement in science and

technology which permits one to see, hear and talk with

someone far away, with same facility and ease as if he is

present. In fact he/she is present before one on a screen.

Except for touching, one can see, hear and observe as if

the party is in the same room. In video-conferencing both

parties are in the presence of each other…”

In V Srivatsan v SR Gayathri

61

(2017), the husband had initiated a matrimonial

proceeding for restitution of conjugal rights, whereas the wife had filed for divorce.

The petitioner-husband made an application before the Court for examination

through video conferencing. It was pleaded by him that since he was residing in the

US and was employed in Los Angeles, he had to remain at the place of posting

and it would be extremely difficult and prejudicial for him to come to India to depose

in the case. According to him, it also involved an unnecessary amount of delay,

expenditure and inconvenience, which, on the facts and circumstances of the case

would be patently unreasonable and extremely harsh on him. The application was

allowed. It was held that:

60 FAO (OS) 416/2015 & CM no 13475/2015, decided on 07.01.2016

61 C.R.P.(PD) No. 1012 of 2016 and C.M.P. No. 5676 of 2016, judgment dated 23.01.2017

85

“Section 11 of the Family Courts Act, 1984 suggests

and provides for in camera proceedings, so that there

will not be any ambiguity in understanding the parties.

But many of the Family Courts are not adopting the

unique path-breaking initiatives...

So far as the matrimonial matter is concerned,

excepting the fact of the touch of the person

concerned, video conferencing is an advancement of

Science and Technology, which permits one to see, hear

and talk with someone, who is far away with the same

facility and ease as if he is present herein. The application

of any technique through advancement of technology, is

only to make things easier and flexible...Video conferencing

is one such facility even under Section 65-A and B of the

Evidence Act and a special provision as to evidence relating

to electronic record and admissibility of the same, has been

introduced in the amended Act. There should not be any

bar of examination of witness by way of video

conferencing...

In fact the Hon'ble Supreme Court regarding Process

Re-engineering is suggesting rule for ICT enablement of the

Court processes. As a first step for process re-engineering,

electronic filing, recording of evidence through video

conferencing, electronic evidence, service of summons etc

are suggested. On the utilization of video conferencing

facilities, there are more than lakh of cases across the

country have been conducted which resulted in expediting

trials apart from tremendous financial savings...

Admittedly, electronic video conferencing is cheaper

and facilitate to avoid delay of justice. Wherever there

is a linkage facility available, then the attendance of the

witness may be dispensed with and examination may

be done through video conferencing. Order 18 Rule 4

(3) of the Code of Civil Procedure provides for

recording evidence either by writing or mechanically in

the presence of the Judge...The mechanical process

also includes electronic process for both the Court and

the Commissioner. If the law Courts do not permit the

technology development in the Court proceedings, it

86

would be lagging behind compared to the other

sectors. The technology is only a tool and necessary

safeguards have to be taken for the purpose of

recording evidence through audio-video link...

Therefore, without going into other questions, the trial Court

is only directed to follow the necessary safeguards for

taking evidence through video conferencing by giving a

day-today hearing, preferably, within three months from the

date of communication of the order. The petitioner is

directed to bear any incidental expenses in this regard. It is

made clear that such expenses is directed to be paid by the

petitioner-husband without prejudice to the rights and

contention of the parties. The court may accordingly fix time

for video conferencing considering different time zone of the

land, in which, the husband is living and intimation be given

to him through electronic mail with respect to the time and

date to be fixed for Video conferencing well in advance.”

(emphasis supplied)

These are words of wisdom and perspicacity across the spectrum. Voices from within

the judiciary in a federal structure should merit close listening by the Supreme Court.

Foreign jurisprudence

22Video conferencing has been applied in matrimonial proceedings in various

other jurisdictions. With the advancement of technology, many countries have laid

down detailed guidelines regulating the use of video conferencing technology in

Family Courts. In the absence of detailed statutory guidelines, courts have been held

87

to have wide powers to regulate the procedure to be followed, including allowing video

conferencing. Guidelines have developed through case-law.

Nearly seventeen years ago, in De Carvalho v Watson

62

, the Alberta Court of

Queen’s Bench in Canada had this perspective on video conferencing technology:

“It is not the suggestion of this Court that because video

conferencing is an available form of technology suitable for

examination and cross-examination of witnesses or

potential witnesses that such use of technology should be

used generally as a substitute for personal appearances...

But it seems to me that where there are circumstances

such as the present where an individual is a long way away

from the jurisdiction where the examination would normally

take place, where the costs for the personal attendance of

that individual would be extremely substantial, where the

examination can be carried out with a minimum of difficulty

by the use of such video conferencing technology, and

where there has already been a (sic) opportunity for

counsel to engage in personal cross-examination of an

extensive nature of the particular witness or potential

witness, that this is an appropriate type of case for a Court

to look positively upon a request made on behalf of such

witness that the witness be allowed in a civil action such as

this to provide continued evidence on examination for

discovery by way of video conference. This would be

inappropriate only where there is some other circumstance

which would cause a meaningful risk of causing prejudice to

the party seeking to require the witness to appear in

person.”

It also rejected the arguments of the defendant opposing an examination by video

conference:

62 De Carvalho v Watson (2000), 83 Alta LR (3d) 354

88

“The only submission of substance alleged on behalf of the

Defendants is that it would be easier to assess credibility of

the witness if the witness appeared in person... [T]he state

of technology is now such that when video conferencing is

properly carried out, in my opinion, a good view can be had

of the witness for the purposes of assisting in assessing

credibility through that medium.”

An article titled “Technology and Family Law Hearings”

63

(2012) speaks about the

usage of ‘Skype’ (a video-conferencing software) in the context of family law

arbitrations:

“The witnesses were located in different countries and in

different time zones. Despite this, the use of Skype

facilitated a mutually convenient schedule for the witnesses

and counsel. The witnesses had access to the agreed

exhibits, took the oath over video, and were

cross-examined. The corollary is that there is less

opportunity to observe if witnesses are testifying under any

form of impairment, if they are being coached off-screen, or

if they are reading from notes that are not part of the record.

There was some concern about the delay of a witness’s

facial expression when a damaging document or picture

was unveiled mid-testimony. However, the advantages to

video conferencing technologies and the costs saved

outweighed the disadvantages of a face-to-face

cross-examination.”

64

In P v C

65

, the Ontario Court of Justice in Canada allowed testimony by the

internet-based video conferencing program Skype, despite the lack of clarity in the

63 Ron S. Foster and Lianne M. Cihlar, “Technology and Family Law Hearings”, Western

Journal of Legal Studies (2012), Vol. 5, Issue 1

64 Ibid, at page 16

65 P. v. C. Between L.V.P, Applicant, and M.E.C, Respondent [2004] O.J. No. 200 ONCJ N

89

Ontario Family Law Rules on this issue, in situations where a judge sees it fit. It was

held:

“36. It is clear to me that the balance of convenience on this

motion favours the Applicant. With the conditions which I

set out... the Respondent should suffer little or no prejudice

in his counsel's ability to cross-examine. The

cross-examination will be conducted in real time, and the

"lag" which counsel fears in the transmission of questions

and answers should not exist. Requiring the Applicant and

her spouse to travel to T.O. would have a negative impact

on their already financially -stretched household, and would

be damaging to the children's best interests.

37. Cross-examination of the Applicant and Mr. B.M. by

Skype will be permitted. The Applicant shall bear any of the

costs incidental to facilitating this video conference.

Applicant's counsel shall contact court administration well in

advance of the trial to ensure that the connection between

the facilities to be used in D. and Courtroom 1E in T.O. is

effective.”

In Edmonton (City) v Lovat Tunnel Equipment Inc

66

, the Alberta Court of Queen’s

Bench set out guidelines for information to be stated in applications for allowing

hearings through video conferencing:

“1. the relevance of the evidence which it is anticipated that

the witness will give and why that evidence is necessary to

their case;

2. the reasons why they suggest that video conferencing

should be employed, bearing in mind that rule 216.1

requires that there be a "good reason" for the court to allow

the admission of such evidence. If the applicant intends to

66 Edmonton(City) v Lovat Tunnel Equipment Inc (2000), 260 AR 259 (QB)

90

argue that cost and inconvenience are factors which should

be taken into consideration, ...some evidence would be

presented as to the anticipated time and costs associated

with video conferencing as opposed to alternate means of

procuring the evidence;

3. the logistical and technical arrangements that they have

made both here and in the place from which they propose

that the witness give their evidence... Counsel must ensure

that the witness will have access at the appropriate time to

a clear copy of any exhibit to which their attention may be

directed during the course of their testimony which

presumably can be done via a fax machine at both ends of

the video conference…. [S]ome efforts would be made by

the person administering the oath to ensure that there is no

scripting of the evidence. Also, a tape of the video

conference should be made.”

In a study titled “Legal assistance by video conferencing: what is known?”

67

(2011), it

was observed:

“While further research is required to identify the relative

impact of any or all of the following factors, the uptake and

use of video conferencing for legal assistance appears to

be affected by:

– the convenience, privacy and confidentiality of video

conferencing compared to other available modes of

assistance

– whether video conferencing offers services or benefits

that are not already available through existing legal

services, including services available by telephone, such as

access to specialist services or more timely assistance

– the quality and reliability of the video conferencing (e.g.

drop outs, picture quality)

67 Suzie Forell, Meg Laufer and Erol Digiusto, “Legal assistance by video conferencing:

what is known?”, Justice Issues (Nov. 2011), at page 2, available at

http://www.lawfoundation.net.au/ljf/site/articleIDs/B0A936D88AF64726CA25796600008A3A/

$file/JI15_Videoconferencing_web.pdf

91

– the willingness of clients, lawyers and the host service at

the client end to use this form of technology for legal

assistance.”

‘Specific situations where video conferencing may assist the parties in reaching

agreement outside of court regarding their families include: families in different

geographic locations, and families that have a history of or current concern with

regards to family violence.’

68

This view has been supported in a paper titled “The

Australian Online Family Dispute Resolution Service”

69

written by Wilson Evered,

Zeleznikow and Thomson, according to which:

“While the focus of ADR has largely been on face-to-face

processes, incorporating technology into ADR processes

has quietly been commonplace for a long time. Primarily,

this has taken the form of using the telephone as a simple

measure to convene people who cannot or should not be

together in the same room, whether owing to geographical

situations or to extremely vitriolic situations, or those where

violence has occurred.”

An article on the use of Skype in family courts

70

has stated that:

“The use of Skype and similar services in visitation is just one

example of the ways in which technology is changing law.

Technology has also changed the way attorneys work; some

lawyers carry the iPad tablet in lieu of a briefcase, and there are

now several niche blogs dedicated solely to advising legal

professionals on how to get the most out of their iPads. And,

68 Anthony Syder, “Technology in Mediation”, Fair Way, available at

http://www.fairwayresolution.com/resources/whats-new/technology-in-mediation

69 Elisabeth Wilson Evered, John Zeleznikow and Mark Thomson, “The Australian Online

Family Dispute Resolution Service”, available at

https://www2.iceaustralia.com/ei/images/nmc2014/abstracts/nmc14abstract00068.pdf

70 “The Use of Skype Ordered in Family Court”, available at

https://fernandezlauby.com/Articles/The-Use-of-Skype-Ordered-in-Family-Court.html

92

beyond affecting day-to-day responsibilities, technology has

raised a number of issues in the courts…

Xxx xxx xxx

As many commentators note, technological change in general

will correspond to change in divorce and family law cases.

Technology can be used to better meet the needs of families…”

International precedent – both of a judicial and academic nature – is testimony to

the use and acceptance of video conferencing.

Video Conferencing must be in the interest of justice

23Video-conferencing facilities allow parties to communicate with each other in

situations where it would be expensive, inconvenient or otherwise not desirable for a

person to attend the court procedure.

24The overriding factor, as contemplated by the Delhi High Court in its video

conferencing guidelines

71

, is that the use of video conferencing in any particular case

must be consistent with furthering the interests of justice and should cause minimal

disadvantage to the parties.

25Given the delays in judicial proceedings, which are often due to the wilful

procrastination of one of the parties, video conferencing will serve the purpose of

71 “Video Conferencing Guidelines issued by the High Court of Delhi”, available at

http://www.nja.nic.in/CJ-CM_Resolution/Delhi_HC/Video%20Conferencing%20Guidelines%20issued%20by%20DHC.PDF

93

safeguarding the interests of justice by preventing undue delay. The massive

pendency of cases in India and issues related to access to justice will require a careful

deployment of appropriate technologies.

26The High Courts, under Section 9(1) of the Family Courts Act, should lay down

guidelines in regard to video conferencing in matrimonial matters. The Delhi High

Court has provided for certain minimum requisites for the application of video

conferencing in all cases. They are follows:

(a)A desktop or laptop with internet connectivity and printer

(b)Device ensuring uninterrupted power supply

(c) Video camera

(d) Microphones and speakers

(e) Display unit

(f)Document visualizer

(g) Comfortable sitting arrangements ensuring privacy

(h) Adequate lighting

(i)Proper acoustics

(j)Digital signatures from licensed certifying authorities for the co-ordinators at

the court point and at the remote point

27The guidelines prepared by Delhi High Court also provide that the expenses of

the video conferencing facility ought to be borne by such party as the Court may

direct. It has also been provided that the Court may, at the request of the person to be

examined, or on its own motion direct appropriate measures to protect his/her privacy

keeping in mind age, gender and physical condition. It has further been provided that

where a party or a lawyer requests that in the course of video conferencing some

privileged communication may have to take place, the Court will pass appropriate

94

directions. An encrypted master copy shall be retained in the Court as part of the

record. These guidelines are being adverted to since they indicate that the High Courts

are sufficiently enabled to formulate and evolve a procedure to facilitate video

conferencing.

The ideal and the real

28There is, in my view, no basis either in the Family Courts Act 1984 or in law to

exclude recourse to video conferencing at any stage of the proceedings. Whether

video conferencing should be permitted must be determined as part of the rational

exercise of judgment by the Family Court.

29As in many other areas of law and life, there is a gorge between the ideal and

the real. In an ideal world, spouses and partners live in everlasting harmony. Fairy

tales are built along the lore of couples “who lived happily ever after…”, but we know

that life is not perfect. Indeed, some would believe that the perfection of life lies in its

imperfections. In marital relationships, the spirit of dialogue and a faith in a plurality of

views leads to a synthesis between often conflicting ideas, opinions, aspirations and

needs. Yet marital relationships do on occasion run aground, increasingly so in recent

times. Institutions such as the Family Courts are intended to provide service to families

in distress. In doing so, there must be a synthesis between the ideals of the law and

the need to implement them in dealing with practical problems of society today. The

challenge is to build a robust pathway that bridges the ideal and the real. In an ideal

95

sense, the physical presence of couples sharing the same physical space before a

judge or counsellor may foster a settlement. Yet there are genuine reasons why

parties are unable to remain together in one physical space or do not desire to do so.

A spouse may have been subject to grave marital abuse. Another may have been

repeatedly violated by a history of domestic abuse and gender violence. One of the

spouses may be involved in substance abuse or may suffer from psychiatric disorder.

Technology enables the judicial forum to protect the legitimate concerns of privacy of

one or both spouses. Spouses, even without the above problems, may live apart in

distant cities because of reasons of employment. Compulsions of employment, the

needs of children, care of the elderly and disability within the family may make it

practically impossible for parties to commute to another city to pursue or defend a

proceeding. Besides, insistence on physical presence is questionable in a situation

where our family courts are overburdened and are unable to provide timely justice. To

deprive parties of the benefit of video conferencing will result in a denial of access to

justice. Nor can recourse to technology be conditioned on the consent of both spouses

for, this will only enable one spouse to procrastinate or delay the proceeding.

Withholding consent to video conferencing will then become a tool in the hands of one

of the litigants to delay the proceedings.

30As a matter of principle, video conferencing cannot be excluded from any stage

of the proceeding before the Family Court. Whether it should be adopted in a

particular case must be left to the judicious view of the Family Court. The High Courts

96

will be well advised to formulate rules to guide the process. Family Courts must

encourage the use of technology to facilitate speedy and effective solutions. Above all,

it must be acknowledged that a whole-hearted acceptance of technology is necessary

for courts to meet societal demands for efficient and timely justice.

Should this court even attempt to put a lid on the inexorable movement towards

incorporating technology? If we do so, we risk ourselves being left behind as an

anachronism in a digital age.

..............................................J.

[Dr. D Y CHANDRACHUD]

New Delhi;

October 09, 2017