Recently in M/s. Meters and Instruments Private Ltd. v. Kanchan Mehta, [Criminal Appeal No. 1731 of 2017] Goel and Lalit JJ observed:
“There appears to be need to consider categories of cases which can be partly or entirely concluded ‘online’ without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category. At least some number of Section 138 cases can be decided online.
If complaint with affidavits and documents can be filed online, process can be issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused. Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video-conferencing can be used. Personal appearances can be dispensed with on suitable self-operating conditions. This is a matter to be considered by the High Courts and wherever viable, appropriate directions can be issued.
It will be open to the High Courts to consider and lay down category of cases where proceedings or part thereof can be conducted online by designated Courts or otherwise.”
Goel and Lalit JJ were concerned in Krishna Veni Nagam v. Harish Nagam, [Transfer Petition (Civil) No. 1912 of 2014] too:
“That in every district in the country video-conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use for certain category of cases. Matrimonial cases where one of the parties resides outside Court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video-conference, proceedings may be conducted, obviating the needs of the party to appear in person.”
3 Judge Bench overruled Krishna Veni to a limited extent. On the outcome, in Santhini v. Vijaya Venketesh, [Transfer Petition (Civil) No. 1278 of 2016] the Court split 2 [Misra CJI and Justice Khanwilkar]: 1 [Justice Chandrachud].
Misra CJI and Khanwilkar J.
The Family Court Judge is only meant to deal with the controversies and disputes as provided under The Family Courts Act, 1984. He is not to be given any other assignment by the High Court.
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.
Misra CJI and Khanwilkar J.
The procedure of video-conferencing which is to be adopted when one party gives consent is contrary to Section 11 of The 1984 Act.
If the proceedings are directed to be conducted through video-conferencing, 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.
An in-camera trial is contemplated under Section 11 in two situations: the first where the Family Court so desires; and the second if either of the parties so desires. There is a fallacy in the hypothesis that an in-camera trial is inconsistent with the usage of video-conferencing techniques. A trial in-camera postulates the exclusion of the public from the courtroom and allows for restraints on public reporting; video-conferencing does not have to be recorded nor is it accessible to the press or the public. The proper adoption of video-conferencing does not negate the postulates of an in-camera trial even if such a trial is required by the Court or by one of the parties under Section 11.
Misra CJI and Khanwilkar J.
What one party can communicate with other, if they are left alone for some time, is not possible in video-conferencing and if possible, it is very doubtful whether the emotional bond can be established in a virtual meeting during video-conferencing; video-conferencing may create a dent in the process of settlement.
There may arise a variety of situations where in today’s age and time parties are unable to come face to face for counselling or can do so only at such expense, delay or hardship which will defeat justice. One or both spouses may face genuine difficulties arising from the compulsions of employment, family circumstances (including the needs of young children), disability and social or economic handicaps in accessing a Court situated in a location distant from where either or both parties reside or work. It would be inappropriate to deprive the Family Court which is vested with such wide powers and procedural flexibility to adopt video-conferencing as a facilitative tool, where it is convenient and readily available. Whether video-conferencing should be allowed must be determined on a case to case analysis to best effectuate the concern of providing just solutions. Far from such a procedure being excluded by the law, it will sub serve the purpose of the law.
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.
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.
Misra CJI and Khanwilkar J.
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 video-conferencing. 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 video-conferencing.
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 specialized Court has been set up.
Supreme Court at present seems divided on the issue. Justices Goel and Lalit may have found support in Justice Chandrachud.