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

O R D E R

1. The petitioner has approached this Court seeking for transfer of

O.P.(HMA)  No.580 of  2015 filed for  dissolution of  marriage of  the

respondent and petitioner and O.P. No.1282 of 2012 filed for custody

of minor child, from the Court of Family Court, Alappuzha, Kerala to

Family Court, Chennai, Tamil Nadu.

2. When the matter came up for consideration before this Court,

learned counsel appearing for the respondent brought to our notice

a decision rendered by a coordinate Bench of this Court in  Krishna

Veni Nagam v. Harish Nagam  1  and requested that there is no need

to transfer the cases; instead parties can be directed to avail  the

facility of video conferencing, as suggested by this Court in the case

1  (2017) 4 SCC 150

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referred to above.  

3. In Krishna Veni Nagam (supra) a coordinate Bench of this Court

went into the issue of preventing the backlog of transfer petitions

before the Courts.  It appears that the Court also had the assistance

of an amicus.  Having heard the learned Counsel on both the sides

and learned amicus, the Court finally, at paragraph-18, issued the

following directions:-

“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  video  conferencing facility.  

ii) Availability of legal aid service.  iii) Deposit  of  cost  for  travel,  lodging

and boarding in terms of Order XXV CPC.

iv) E-mail  address/phone  number,  if any,  at  which  litigant  from  out station may communicate.”

4. We are informed that not only this Court but the High Courts

and even the District Courts are passing orders in the light of the

judgment  referred  to  above,  relegating  the  parties  to  video

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conferencing even where such facilities are not available.  Thus, it is

a situation not only of inter State appeal or intra State appeal but

also of intra District appeal.

5. Having due regard to the nature of family disputes sought to be

addressed by the Parliament, we are afraid, the Court in Krishna Veni

Nagam (supra) has not been furnished with the required information,

before passing the order.

6. The Family Courts Act, 1984 was introduced with the following

purpose:-

“INTRODUCTION

From  time  to  time,  it  had  been  urged  by several  organisations  of  women,  other organisations and individuals that Family Courts be set-up for the settlement of family disputes.  The Law  Commission  in  its  59th Report  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.  In 1976 the Code of Civil Procedure was also amended to provide for a special  procedure  to  be  adopted  in  suits  or proceedings  relating  to  matters  concerning  the family, but not much change in the attitude of the courts was noticed.  Therefore, the need was felt to establish Family Courts for speedy settlement of family disputes.  Accordingly the Family Courts Bill was introduced in the Parliament.

STATEMENT OF OBJECTS AND REASONS

Several  associations  of  women,  other

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organisations  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 procedure to be adopted in suits or proceedings  relating  to  matters  concerning  the 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 Government;  (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 jurisdication of the Family Courts the matters relating to-

(i)  matrimonal  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;

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(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,  counsellors,  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; (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.”

(Emphasis supplied)

7. Section 9 of the Family Courts Act, 1984 makes it a mandatory

duty of the Family Court to make efforts for settlement.  The said

provision reads as follows:-  

“9. Duty  of  Family  Court  to  make  efforts  for settlement.  (1)  In  every  suit  or  proceeding, endeavor 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

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procedure as it may deem fit.

(2) If,  in any suit or proceeding, at any stage, it appears  to  the  Family  Court  that  there  is  a reasonable possibility of a settlement between the parties,  the  Family  Court  may  adjourn  the proceedings  for  such  period  as  it  thinks  fit  to enable  attempts  to  be  made  to  effect  such  a settlement. (3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power  of  the  Family  Court  to  adjourn  the proceedings.”  

(Emphasis supplied)

8. In order to assist  the Family Court,  the Act  has provided for

association  of  social  welfare  agencies.   In  Section  6  provision

regarding counsellors, officers and other employees of Family Courts

is mentioned, which reads as follows:-

“6.  Counsellors,  officers  and other  employees  of Family  Courts.(1)  The State  Government  shall  in consultation  with  the  High  Court,  determine  the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family  Court  with  such  counsellors,  officers  and other employees as it may think fit.  (2) The terms and conditions of association of the counsellors  and  the  terms  and  conditions  of service  of  the  officers  and  other  employees, referred to in sub-section (1), shall be such as may be  specified  by  rules  made  by  the  State Government.”

9. Section 12 provides for the assistance of medical and welfare

experts, which reads as under:-

“12.  Assistance  of  medical  and  welfare

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experts.-In  every suit  or  proceedings,  it  shall  be open to a Family Court to secure the services of a medical  expert  or  such  person  (preferably  a woman where  available),  whether  related  to  the parties  or  not,  including  a  person  professionally engaged in promoting the welfare of the family as the  court  may  think  fit,  for  the  purposes  of assisting  the  Family  Court  in  discharging  the functions imposed by this Act.”

10. Section 11 provides that “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”.

11. Under  the  Hindu  Marriage  Act,  1955  also,  in  respect  of  the

family  matters,  the  Parliament  has  made  several  provisions  for

reconciliation.  Under Section 23(2) “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 so to do consistently with

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

to bring about a reconciliation between the parties”.

12. Sub-section (3) of Section 23 of the Hindu Marriage Act further

provides  for  methods  to  facilitate  the  process,  which  reads  as

follows:-

“23 (3) For the purpose of aiding the court in bringing about such reconciliation,  the court may, if the parties so desire or if the court thinks it just and proper so to do, 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

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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.”

 (Emphasis supplied)

13. Section  22  of  the  Hindu  Marriage  Act  has  given  a  very

important safeguard for protecting the privacy of the proceedings or

prohibiting the printing and publishing of any proceedings before the

Court,  except  the  printed  judgment  of  the  High  Court  or  the

Supreme Court.  The section also provides for the situation where

the proceedings  are  to  be held  in  camera.   Section  22 reads as

follows:-

“22 Proceedings to be in camera and may not be printed  or  published.(1)  Every  proceeding  under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment  of  the  High  Court  or  of  the  Supreme Court  printed  or  published  with  the  previous permission of the Court.

(2)  If  any  person  prints  or  publishes  any matter  in  contravention  of  the  provisions contained  in  sub-section  (1),  he  shall  be punishable  with  fine  which  may  extend  to  one thousand rupees.”

(Emphasis supplied)

14. Section 26 of the Hindu Marriage Act deals with the custody of

children, wherein it is mandatory for the Court to ascertain the wish

of the children as well before taking a decision on the custody.  The

said section reads as follows:-

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“26 Custody of children.- In any proceeding under this Act,  the court may, from time to time,  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  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 proceeding 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:  

Provided 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.”

(Emphasis supplied)

15. Order XXXIIA of the Code of Civil Procedure was introduced in

the  year  1976.   The  same pertains  to  “suits  relating  to  matters

concerning the family”.  Rule 3 casts a duty on the Court to make

every  effort  for  settlement  in  family  matters,  the  said  provision

reads as follows:-

“3. Duty of court to make efforts for settlement.- (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the court in the first instance, where it is possible to do so consistent  with  the  nature  and circumstances  of the  case,  to  assist  the  parties  in  arriving  at  a settlement in respect of the subject-matter of the suit.  

(2) If, in any such suit or proceeding, at any

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stage  it  appears  to  the  court  that  there  is  a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-rule (2) shall be  in  addition to,  and not  in  derogation of,  any other  power  of  the  court  to  adjourn  the proceedings.”

16. Rule 2 deals with in camera proceedings. Rule 4 provides for

the assistance of a welfare expert and Rule 5 casts a duty on the

Court to “inquire, so far as it reasonably can, into the facts alleged

by the plaintiff and into any facts alleged by the defendant”.

17. Unfortunately, it seems, none of these mandatory procedures

as laid down by the Parliament have been brought to the notice of

the Court while considering the case of Krishna Veni Nagam (supra).

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

attempt for reconciliation before processing the disputes in the legal

framework. Reconciliation is not mediation. Neither is it conciliation.

No doubt, there is conciliation in reconciliation. But the concepts are

totally different. Similarly, there is mediation in conciliation but there

is no conciliation in mediation. In mediation, the role of the mediator

is only to evolve solutions whereas in reconciliation, the duty-holders

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

amicable  solution.  In  conciliation,  the  conciliator  persuades  the

parties to arrive at a solution as suggested by him in the course of

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the  discussions.  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.

However, reconciliation is not always the restoration of  status quo

ante; it can as well be a solution as acceptable to both parties. In all

these matters, the approaches are different.

18. 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

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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.  

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 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

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matrimonial disputes.  

20. Therefore,  we  are  of  the  view  that  the  matter  requires

consideration by a larger Bench. The Registry is directed to place the

papers before Hon'ble the Chief Justice of India.  We request Hon'ble

the Chief Justice of India to expeditiously constitute a Bench having

regard to the urgency of the matter.

.........................J.               [KURIAN JOSEPH]  

........................J.               [R. BANUMATHI]  

NEW DELHI; AUGUST 09, 2017.

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