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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 Nagam1,

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

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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

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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 Das2 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 Goel3,  Lalita A. Ranga v. Ajay Champalal Ranga4,

Deepa v.  Anil  Panicker5, Archana  Rastogi v.  Rakesh  Rastogi6,

Leena Mukherjee v.  Rabi Shankar Mukherjee7, Neelam Bhatia v.

Satbir  Singh Bhatia8, Soma Choudhury v.  Gourab Choudhaury9,

Rajesh Rani v.  Tej  Pal10,    Vandana Sharma v.  Rakesh Kumar

Sharma11 and Anju  Ohri v.  Varinder  Ohri12 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

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

also adverted to  Premlata Singh v. Rita Singh13 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 Prasad14.   

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

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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 conferencing15.

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

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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 justice16, power of the State to

make special provisions for women and children17, duty to uphold the

dignity of women18 and various steps that have been taken in the said

direction19.   

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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

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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

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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

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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.  Prasad20 and

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Rajwinder  Kaur  v.  Balwinder  Singh21 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.

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(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

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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.

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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 59th 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;

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(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,

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(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 others22, the three-Judge Bench

referred to the decision in K.A. Abdul Jaleel v. T.A. Shahida23 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:-

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“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

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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 Khan24, 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.

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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

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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

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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

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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

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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

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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.

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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 Ganguli25,  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 (4th

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

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“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. Chakramakkal26, 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.

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29. In Vikram Vir Vohra v. Shalini Bhalla27, 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

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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. Desai28,

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

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Budhadev  Karmaskar  (4)  v.  State  of  West  Bengal30,  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

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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

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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

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through videoconferencing would scuttle the rights of women and not

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

D’costa  and  another32,  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

others33, 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.   

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

Company Limited and others34, 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

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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 others35, 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

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authority in State of H.P. v. Nikku Ram36 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 others38,

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

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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 Ors39, 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

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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  others40,

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

State  of  U.P.41 and  Maya  Kaur  Baldevsingh  Sardar  v.  State  of

Maharashtra42, 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 & others43, 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. Gangi44, 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.  Cleary45,  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.

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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

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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.

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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.

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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

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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.

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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.

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II The reference should in my opinion be answered in the

above terms.

…......................................J.      [Dr D Y  CHANDRACHUD]

New Delhi October 09, 2017

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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

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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

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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

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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 Nagam47

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

Bench of two Judges in Santhini v Vijaya Venketesh48 (“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

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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 Das49.  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.”

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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

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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.

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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

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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

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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:

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“...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 Shahida50, 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

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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  City51,  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.”

10 A 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

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11 While 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.  

12 The 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

13 Video 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

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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.   

14 Section 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.

15 Section 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.   

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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 follows53:

“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.”

16 Video  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.

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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.

17 This 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.  

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18 Video  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.

19 Technology 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.    

20 The 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

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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 Patel54 (2012),

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

54  2012 (3) ALLMR 521

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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.

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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 Sonu55 (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  Paul56 (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)

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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 Musale57 (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

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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.”

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Sirangai  Shoba  v Sirangi  Muralidhar  Rao58 (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 Nath59, 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

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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 Nath60 (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 Gayathri61 (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

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“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

22 Video  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

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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  Watson62,  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

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“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 C65,  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

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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 Inc66, 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)

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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.  

26 The 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

27 The 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

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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

28 There 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.  

29 As 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

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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.  

30 As 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

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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