Video Conferencing in Family Matters: Yay or Nay?
Video-conferencing, a boon for the new age, with its immense abilities to connect people from different parts of the world and bring them to a small room, where a virtual face-to-face conversation could be had. Empires are run and deals worth billions of dollars are struck, using the power of the internet, through video-conferencing. However, in a Judgement of the Hon'ble Supreme Court of India, delivered in 2018, the view taken is very interesting and raises questions about the utility of video-conferencing in certain matters.
The matters/legal proceedings involving family disputes/issues or matters relating to matrimonial disputes obviously stand on a different footing and need a distinctly different treatment and consideration in solving the issues and finding out a mutually acceptable solution. The process of arriving at a proper solution becomes increasingly complicated and difficult, especially in matrimonial matters when the interest and the welfare of children is caught in the crossfire between the parents. The issues become further complicated and the legal process also becomes, to some extent, unjust and unfair to one of the parties who resides in another country; and thus making it almost impossible to attend the court proceedings; resulting into serious mental stress and also into heavy financial burden.
The Hon’ble Supreme Court of India, dealt with these issues in Krishna Veni Nagam and had issued guidelines, suggestions to deal with the problems. However, later on, matter involving similar/same issues again came before the Hon’ble Supreme Court before a bench consisting of 3 judges. There was no unanimous decision/opinion and ultimately 2 judges opined and give a decision that the proceedings through video conferencing in the absence the consent of other party would be contrary to the provisions of the Hindu Marriage Act. The majority opinion was that the physical presence of both the parties in matrimonial proceedings held in camera was essential as it created environmental trust privacy and emotional bond. The video conferencing at the very first instance, without consent of both the parties would not have desire effect of the settlement and would also affect the affirmative rights to dignity, privacy and choice especially and particularly of women.
The majority view was that once the settlement fails and a joint application is filed or both the parties agree for the hearing through video conferencing, the Family Court might exercise its discretion to allow such proceedings through video conferencing. The family court may if considered it appropriate having regard to the facts and circumstances of the case that video conferencing would be in the interest of parties and would serve the purpose of justice it could do so. The majority took into consideration various factors including the emotional bond that could be established in a virtual meeting. It would be also well-nigh impossible to bridge the gap between the parties in video conferencing.
The Ld. Judge dissenting was of the view that the video conferencing did not neglect postulate of in camera proceedings, even if only one of the parties, desired to have in camera proceedings/video conferencing. It was also considered that there might arise variety of situation wherein todays age and time the parties would unable to come face to face or could do it only at such high expenses delay and hardship which could defeat justice. The difficulties arising out of compulsions /limitation /restriction arising out of employment, family circumstances, various disabilities and even social or economic handicap in approaching the court situated at far away distant locations, were either both or any of the parties reside or work. It is not uncommon these days that the parties marry at one place, reside together at an altogether different place and may have to reside separately still at different places. In such situation the more than one court, are conferred with the jurisdiction and the choice is left with the parties. there are several cases where one party is in India and the other one is at some other foreign country. In such circumstances obviously the video conferencing could be a modern solution to minimise the difficulties of highly increase costs and the difficulties consequential to the sheer distance between the place of residence and the court.
The Ld. Judge also noted that video conferencing has been adopted internationally in resolving the family disputes and many countries have laid down detailed guideline regulating the use of video conferring technology in the Family Court. It was also noted that video conferring would serve the purpose of preventing undue delays as especially delays arising due to wilful procrastination of one of the parties.
Considering the dissent between the Ld. Judges, it was held that the earlier decision in Krishna Veni Nagam (2017) 4 SCC 150, needed reconsideration by a larger bench. The larger bench decided the issue in Santhini v. Vijaya Venkatesh (2018) 1 SCC 1. The majority view held that the long view in the Krishna Veni Nagam case (supra) i.e. that if either of the parties give consent, the case can be transferred, was absolutely unacceptable. In transfer petitions, video -conferencing could not be directed. However, the directions are held applicable prospectively. Taking an overall view and the steps taken by various courts, and the guidelines issued by the Delhi High Court for video conferencing, the Ld. Judge was of the view that the High Courts were sufficiently enabled to formulate and evolve a procedure to facilitate video conferencing. Thus, the issue as to whether video-conferencing can be directed or not, in an application for transfer was under the consideration of the larger bench of the Supreme Court. The majority view appears to be that video-conferencing would be permissible only in case of failure of talks of settlement and if a joint application is filed by both the parties, before the concerned family court, which would allow such a prayer after considering several factors that that bear any weight on the case at hand. If both the parties agree to proceed with the video-conferencing, only then would it be considered.
The decision in Krishna Veni Nagam (supra) was partly overruled prospectively.