Hot Off The PressNews

National Green Tribunal (NGT): Due to lack of experts and judicial members, the NGT is planning to conduct hearings through video-conferencing to deal with the pendency of cases in its regional benches.

NGT is currently functioning with less than one-third of its sanctioned strength of 20 officials besides the chairperson. It has been reported that due to the non-availability of the judicial members and experts the cases are being transferred to the principal bench in Delhi, which eventually is creating a hassle for the petitioners in terms of financial as well as the physical burden.

Therefore, in order to deal with present issue NGT is planning to devise an interim mechanism to get rid of the pendency by holding hearings through video-conferencing.

[Source: PTI]

Case BriefsHigh Courts

Punjab and Haryana High Court: The High Court of Punjab and Haryana decided on the matter arising before it from a civil suit pending before the Court of Civil Judge (Junior Division), Samrala, the issue whether Sucha Singh (petitioner witness), who was residing at USA, can be allowed to be examined by way of Video Conferencing.

The Court vide order dated 16.10.2015 passed in CR 6571 of 2014 allowed the same stating that the witness can be confronted with the documents with close proximity to the camera. Petitioner was given liberty to choose a public authority where such facility was available and inform the Court. Alternatively, the petitioner was given option to identify the Indian Consulate in the nearest place from his residence and produce the Court order to secure the permission for hearing. The petitioner was to make himself available during the court working hours in India and give a date which is mutually convenient to the Court and the Consulate or the Public Office.

The Court was of the view that the evidence of the petitioner was very material and therefore his evidence was required to be recorded. However, noticing the difference of time between India and USA, the Court was of the opinion that approaching the Public Authority at night time to allow video conferencing facility was unfeasible. The Court opined that as video conferencing is now available through many applications like Facetime, Whatsapp, Skype etc. there is no necessity of approaching the nearest Consulate.

The Court allowed examination of the petitioner by way of video conferencing through Mobile or Computer on an application, and the time and date of the same would be communicated to the trail court. The witness is to be identified by the opposite party or any other person nominated by them. The Court further ordered supply of photocopy of any document which is sought to be put to the witness in advance to the opposite party and witness himself, so that he may answer on the said document. [Sucha Singh v. Ajmer Singh, 2018 SCC OnLine P&H 637, order dated 17-05-2018]

Case BriefsSupreme Court

Supreme Court: In the matter revolving around allowing video conferencing in matters relating to marital disputes, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ gave a 2:1 decision and held that the discretion as to allowing Video Conferencing has to rest with the Family Court and it is 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.

Majority Opinion:

CJI, writing the majority opinion for himself and Khanwilkar, J, said:

“The procedure of video conferencing 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.”

Stating that video conferencing may create a dent in the process of settlement, it was held that what one party can communicate with other, if they are left alone for some time, 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. CJI, writing the majority opinion for himself and Khanwilkar, J, went on to say:

 “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.”

CJI and Khanwilkar, J, stating that the order will prospectively, gave the below mentioned directions:

  • In view of the scheme of the Family Courts Act, 1984 and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
  • 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.
  • 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.
  • In a transfer petition, video conferencing cannot be directed.

The decision in Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150, was, hence, overruled to the extent, where, in order to 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 Court recommended the availability of video conferencing facility.

Minority Opinion:

Writing down his minority opinion, Chandrachud, J, said that 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.

He added:

“The Family Courts Act, 1984 has been enacted at a point in time when modern technology 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.”

Disagreeing with the proposition that video conferencing can be permitted only after the conclusion of settlement proceedings, and thereafter only when both parties agree to it, he said that it does not accord either with the purpose or the provisions of the Family Courts Act 1984. He said that the 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. [Santhini v. Vijaya Venketesh, 2017 SCC OnLine SC 1080, decided on 09.10.2017]

Case BriefsSupreme Court

Supreme Court: Holding that the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent is not mandatory  is not mandatory but directory, the bench of AK Goel and UU Lalit, JJ said that it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

The Court also said that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

Waiver of the statutory period under Section 13B(2) can be done after considering the following:

  1. the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
  2. all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act, 1984 to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
  3. the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
  4. the waiting period will only prolong their agony.

The court also said that the waiver application can be filed one week after the first motion giving reasons for the prayer for waiver and if the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. [Amardeep Singh v. Harveen Kaur,  2017 SCC OnLine SC 1073, decided on 12.09.2017]

Case BriefsSupreme Court

Supreme Court: With a view to provide an alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice, the bench of A.K. Goel and U.U. Lalit, Jj held 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.

Availability of video conferencing facility; availability of legal aid service; deposit of cost for travel, lodging and boarding in terms of Order XXV CPC; E-mail address/phone number, if any, at which litigant from out station may communicate, were some of the safeguards suggested by the Court.

The Bench noticed that transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. The Court said that wherever the facility of video conferencing is available, it ought to be fully utilized and all the High Courts should issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases.

The Bench further added that to combat the issue of ignorance about availability of suitable legal services, Legal Aid Committee of every district should make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels should be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.

It was also said that 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. [Krishna Veni Nagam v. Harish Nagam, 2017 SCC OnLine SC 236, decided on 09.03.2017]