09-19-2017
If the Family Court feels it appropriate having regard to the facts and circumstances of the case that video conferencing will sub-serve the cause of justice, it may so direct.
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
Pradesh, took note of the grounds of transfer and keeping in view the
1 (2017) 4 SCC 150
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
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
principle of “expedient for ends of justice” to transfer the proceedings. It
also adverted to Premlata Singh v. Rita Singh13 wherein this Court
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
13 (2005) 12 SCC 277
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
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
14 (2000) 10 SCC 277
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
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.
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
(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
.
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 video conferencing. The aforesaid decision
was brought to the notice of the two-Judge Bench in the instant case by
16
17
18
19
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
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
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
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
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
20
21
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.
(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
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.
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;
(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,
(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
22
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:-
“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.”
23
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
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
24
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.
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
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
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
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
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
command on the Family Court is to hold it in camera if either party so
desires.
24. Section 26 of the 1955 Act deals with custody of children. It
empowers the court, from time to time, to pass such interim orders and
make such provisions in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor children
consistently with their wishes, wherever possible, and the Government
may, after the decree, upon application by petition for the purpose,
make from time to time, all such orders and provisions with respect to
the custody, maintenance and education of such children as might have
been made by such decree or interim orders in case the proceedings for
obtaining such decree were still pending, and the court may also, from
time to time, revoke, suspend or vary any such orders and provisions
previously made. The proviso appended thereto postulates that the
application with respect to the maintenance and education of the minor
children, pending the proceeding for obtaining such decree, shall, as far
as possible, be disposed of within sixty days from the date of service of
notice on the respondent.
25. 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
25
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:-
“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
26
the requirements of welfare of the minor children and the rights of their
respective parents over them.
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
27
different approaches adopted by this Court, the facet of territorial
jurisdiction, doctrine of forum non-conveniens which can be applicable
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
28
29
permitted conducting of the trial with the aid of videoconferencing. In
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
30
31
applications for review, whether the wholesome principle
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
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
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.
32
33
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
should do well to factor these considerations in assessing
34
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
35
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
quintessential quality of a personality and a human frame
36
37
38
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
child or, for that matter, to a woman. The question of any
kind of condescension or patronisation does not arise.”
39
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:-
“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
40
41
42
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.
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
video conferencing. 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
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
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
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:
43
“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
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
44
45
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
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:-
“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
46
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
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.
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
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 :–
(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.
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.
49
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
50
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.
51
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
52
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.
53
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
54
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
55
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.
56
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.
57
II The reference should in my opinion be answered in the
above terms.
…………………………………..J
[Dr D Y CHANDRACHUD]
New Delhi
October 09, 2017
