A three judge bench of the Supreme Court of India, while hearing a reference made by a two-judge bench, has held that “in transfer petition, video conferencing cannot be directed”. The aforesaid view was taken by Chief Justice of India Dipak Mishra and Justice AK Khanwilkar. Justice DY Chandrachud favoured the use of modern technology and dissented.
Three judge bench overruled the earlier judgment of a two-judge bench in Krishna Veni Nagam v. Harish Nagam, which had led the practice of Supreme Court referring the parties to participate in the matrimonial dispute cases through video conferencing, when the parties approached the Court for transfer of their matters. The three judge bench has held that “the statement of law made in Krishna Veni Nagam if either of the parties gives consent, the case can be transferred, is absolutely unacceptable”. This judgment has however been overruled prospectively and shall not affect the judgments passed following the two judge bench judgment.
The three judge bench in Santhini v. Vijaya Venketesh – Transfer Petition (Civil) No. 1278 of 2016 and Santhini v. Vijaya Venketesh – Transfer Petition (Civil) No. 422 of 2017 has held:
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.
The three-judge bench was assisted by senior advocate Ajit Kumar Sinha.
A two-Judge Bench of the Supreme Court had in a transfer petition seeking transfer of a matrimonial dispute case under Section 13 of the Hindu Marriage Act, 1955 IInd Presiding Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court, Hyderabad, Andhra Pradesh, in Krishna Veni Nagam v. Harish Nagam, ordered:
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.
Some relevant extract from the three judge bench judgment:
The [Supreme] 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.
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. [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.
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.
Justice Chandrachud has in his dissenting judgment observed:
8. Video conferencing is gender neutral. In fact it ensures that one of the spouses cannot procrastinate and delay the conclusion of the trial. Delay, it must be remembered, generally defeats the cause of a party which is not the dominant partner in a relationship. Asymmetries of power have a profound consequence in marital ties. Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as video conferencing) will result
in a denial of justice.
Read the complete judgment here: