Author: Bhawana Agarwal.
AIR 2017 SC 1345.
NAMES OF PARTIES
Petitioner- Krishna Veni Nagam;
Respondent- Harish Nagam.
Justice Adarsh Kumar Goel;
Justice Uday Umesh Lalit.
In the modern era where people are struggling to lead their lives including those seeking a divorce from their spouses who live apart and maybe in different jurisdictions face more significant problems when the matter is to be dealt with in a court in the jurisdiction of the petitioner. The respondent in those cases is required to travel and bear the lodging charges as well and is also deprived of his duty which has to be sacrificed due to the complexity of legal proceedings.
The Constitution guarantees the protection of the rights of women in every aspect so that they can be dealt with at par with men. When a situation arises where the wife is unemployed and is totally dependent on her family and has custody of the child, the matter of divorce is generally transferred to the jurisdiction of the wife. In Mona Aresh v. Aresh Satya Goel1, the transfer petition of the wife was allowed from Bombay to Delhi, where the wife resided with her parents. She had no independent income of her and her parents also could not bear the charges of traveling from Delhi to Bombay for the proceedings. She also averted that she could not travel alone as there is no one in Bombay with whom she could reside.
While the problems faced by the wife are acknowledged the problems faced by the husband cannot be ignored. In many cases, it has also been found that there are situations when the husband too cannot leave his hometown due to one or the other recurring problems and therefore the court cannot ignore the problems faced by men. In Kalpana Devi Prakash Thakur v. Dr. Devi Prakash Thakur,2 “the court did not allow the transfer petition filed by the wife from Mumbai to Palanpur, Gujarat as the husband was a medical practitioner and in his absence his patients, his ailing old mother would be deprived care and regular medical check-up, the witnesses were from Mumbai primarily and the wife had relatives in Mumbai with whom she could stay safely, still, the husband was ready to bear the traveling expenses of the wife along with the escort, while Palanpura was well connected to Mumbai by train.”3
In order to overcome such situations where almost many petitions relating to the transfer of proceedings are made before the court, a Bench of Justices including Justice A.K Goel and Justice Uday Umesh Lalit asked the High Courts to issue directions to the district and lower courts to set up video conferencing facilities so that the separating couples engaged in matrimonial cases do not need to travel long distances or even different States, to attend their divorce hearings personally and also justice is served soon, as it is indeed said that justice delayed is justice denied.
In this case analysis, a brief discussion of the facts, issues, judgment, and an analysis of the same has been made along with the judgment that came succeeding it which resulted in the overruling of the judgment passed in the case of Krishna Veni Nagam v. Harish Nagam. Also, the changes brought to the same decision when Covid-19 stroke has been briefly discussed.
- A petition for the transfer of Case No. 179A/2013 u/s 13 of the Hindu Marriage Act 1955 was pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court Hyderabad, Andhra Pradesh.
- The petitioner’s contention was that she had married the respondent-husband in the year 2008 at Kukatpally, Hyderabad. Both were blessed with a girl child in 2009. While she was cohabiting with her husband in her in-law’s house she was mistreated. She was even subject to physical and mental torture and even had injuries to her spinal cord. Therefore, she left her matrimonial home in 2012.
- The respondent-husband filed an application for restitution of conjugal rights which was later dismissed. Then the husband filed a divorce petition at Jabalpur while the wife filed a domestic violence case in Hyderabad.
- As the wife has been residing since then in her parental home with her daughter, she cannot undertake long journeys and contest the proceedings by ignoring the interests of the minor child. Also, she feared that Jabalpur would be unsafe for her personal security.
- Notice was issued and a stay of proceedings was granted on 7th January 2015 since then the matter had been pending in the Jabalpur Court for more than two years.
- On 9th January 2017, the matter came up for hearing as a petition seeking transfer of proceedings was filed by the wife, who contented that she will face acute hardship in contesting the proceedings at Jabalpur as she is living in Hyderabad and has responsibilities for her daughter and need to take care of her.
- Whether the problems faced by the litigants in traveling and spending on litigation be avoided?
- Whether a better alternative for every individual be provided who is required to move to the court?
Justice A.K. Goel and Justice U.U Lalit were assisted by Mr. C.A. Sundaram, Senior Advocate as amicus curiae, and Mr. Nadkarni learned Addl. Solicitor General in the final decision making.
According to Shri C.A. Sundaram, the wife should be given preference in deciding where the proceedings should be held, and in exceptional cases where maybe the wife is employed and the husband unemployed, or maybe when the husband is handicapped then he should be given preference in deciding as to where to conduct the proceedings but according to the learned Justices due to the plain language of the statute it could not be interpreted and therefore they need to issue directions in the interest of justice consistent with the statute.
According to Mr. Nadkarni, the decision must be made based on the present requirement of the situation. It should not be according to the mere convenience of the parties but according to the interest of justice. In the present situation where the husband files a petition at a place distant from that of the wife then if the husband agrees to bear the traveling and incidental expenses, then this may be considered in the interest of justice. On the other side if in case the husband has genuine difficulty in depositing the amount, then the proceedings can be conducted by video conferencing. At least one courtroom in a district must be equipped with a video conferencing facility. The interest of senior citizens along with that of a minor child should also be kept in mind whose interest may be affected by the trips that need to be undertaken to move to the place of proceeding.
By considering the above suggestions the court arrived at the final decision. The court by applying the doctrine of forum non-conveniens said that under the said doctrine the court can exercise its inherent jurisdiction to stay proceedings at a forum that is not convenient for the interest of all the parties. In the Spiliada Maritime case, the House of Lords laid down that in the interests of justice to determine the appropriate forum the court will look for the forum in which the action had the most real connections in terms of expense and convenience. Though the observations were in the context of granting the anti-suit injunction, the principle can be followed in the exercise of jurisdiction of the court. In a civil proceeding generally, the dominus litis is the plaintiff but if more than one court has jurisdiction then it is up to the court to decide which forum is more convenient.
The court cannot ignore the problems of the husband while considering those of the wife, therefore in the interests of justice, the appropriate use of technology of video conferencing can be done where both parties have equal difficulties and there is no place convenient to both the parties. Wherever there are such facilities they must be fully utilized and so all the High Courts ought to issue appropriate administrative instructions for the same, Also where one of the parties makes a request to conduct the proceedings through video conferencing then their request must be approved obviating the needs of the parties. Also in several cases, the court has taken evidence by the use of video conferencing.
Another difficulty faced by the parties is ignorance about the availability of legal services. In every district, the Legal Aid Committee ought to make available a selected panel of advocates who can regulate disciple and quality and who agree to provide legal services at a specified rate. Such panels ought to be notified on the websites of the District Legal Services Authority/ State Legal Services Authority/ National Legal Services Authority which may enhance Article 39A of the Constitution. A designated officer of the district court may be needed to respond to the e-mails when the litigants are located outside the jurisdiction of the court. Also, an information officer may be accessible on a notified phone during notified hours as per the instructions. These suggestions need the attention of the High Courts.
The court was of the view that an alternative to seeking transfer of proceedings must be provided on account of the inability of a party to contest proceedings at a place far away from that of residence on the ground that it will lead to denial of justice. It was therefore directed that in matrimonial cases or custody matters or in proceedings between parties to the marriage, where the party’s residence is located outside the jurisdiction of the court, the court in which proceedings are instituted may decide whether it is in the interest of justice to incorporate any safeguards that summoning of the respondent doesn’t result in denial of justice. An order incorporating safeguards along with the summons may be sent:
- The availability of a video conferencing facility.
- The availability of legal aid services.
- The deposit of the cost of travel, lodging, and boarding in terms of Order XXV CPC.
- The e-mail address/ phone number if any to which the litigant may communicate in case they reside out of the station.
The above arrangements may to an extent reduce hardship for the litigants. However, as this case was pending for more than three years in court, therefore the transfer of proceedings was allowed. If in case the parties seek a settlement through mediation then the transferee court may record evidence of the witnesses through video conferencing who are unable to attend the proceedings.
From the above judgment, it can be found that the court has rightly proved by giving such a decision that there lies a body that truly cares for the concerns of mankind. Though there are strict provisions to be followed in the conduct of proceedings of the court yet by giving such a lenient decision while serving justice will also ensure that the interests of the parties concerned are not disturbed when both parties are genuinely unable to move to different jurisdictions to attend the proceedings. Technology has evolved as a major source of development in the present era and while it is progressing, it should also be ensured that the benefits it provides are also utilized.
Contrary to the view above discussed there are circumstances in which the transfer petitions are to be entertained by the courts as was held in Dr. Subramaniam Swamy v. Rama Krishna Hegde4, where the Supreme Court held that the paramount consideration for a case to be transferred under section 25 of CPC must be in the interests of justice. The mere convenience of the parties is not only to be taken into consideration but it must also be shown that a trial in the respective forum will lead to denial of justice. If for the ends of justice, it is demanded that there should be no hesitation in transfer then the right of dominus litis to choose the forum and also to bear the travelling and lodging charges of the wife cannot eclipse the requirement of justice.
In Santhini v. Vijaya Venketesh5, a three-judge bench, while referring to the two-judge bench judgment in which an order was passed in Krishna Veni Nagam v. Harish Nagam on March 09, 2017, was overruled by a 2:1 majority by an order dated October 09, 2017, that in a transfer petition, video conferencing cannot be directed to be used. Justice Dipak Mishra and Justice A.M. Khanwilkar assented to the judgment as according to them the legislative intent had not been properly brought out in the preceding judgment. The court relied on the Family Courts Act 1984, the statement and objects in it, the provisions of the CPC 1908, and the recommendations of the Law Commission in their 59th report from 1974, also the two-judge bench did not consider the procedure of videoconferencing which is to be adopted when only one party gives consent which was contrary to Section 11 of the 1984 Act.
Communication which is possible in reality is totally absent in video conferencing and it is doubtful whether the emotional bond can be represented in a virtual meeting during video conferencing. The statutory right of women envisaged in the Constitution cannot be nullified by taking the route to technological advancement when it relates to family issues. Therefore, it was contented that when both parties agreed that any witness can be examined in a video conference then that can be allowed or when a joint application is filed for conducting proceedings through video conferencing then that could be taken into consideration when all the settlement methods such as mediation and conciliation have failed to grant any remedy.
While Justice Chandrachud favored the use of video conferencing and dissented by opining that video conferencing should be allowed or not must be left to the discretion of the High Courts while framing the rules on the subject. He added by saying that the Family Court Act 1984 was enacted at a time when modern technology was not fully developed, which is why there is no reason to exclude the application of technology in facilitating judicial proceedings. Also, disagreeing with the proposition that video conferencing can only be used after the conclusion of the settlement proceeding, he opined that the legislation has various enabling provisions which is broad enough to allow the use of technology in the form of video conferencing.
Covid-19 effects on the Judgment
A bench headed by Justice S.A. Bobde carved out an exception in regard to the general principle as laid down in the case of Santhini v. Vijaya Venkatesh. According to the bench in normal circumstances, no change would have been made, but due to the pandemic, the proceedings need to continue. Therefore, when a petition was filed by the wife in the case of Anjali Brahmawar Chauhan v. Navin Chauhan6, that there was no video conference facility in U.P. Court and that the video conference was not permissible in the matrimonial cases as was held in Santhini v. Vijaya Venkatesh, the bench directed the Family Court, District Gautambudh Nagar, U.P. to conduct the trial proceedings through video conferencing. The order was passed on January 22, 2021, by a bench comprising Justice S.A. Bobde, Justice Vineet Saran, and Justice L Nageswara Rao.7
It can be further be said that it is totally upon the court in which the matrimonial cases have jurisdiction to decide upon which factor is more influencing the matter and whether they consider the hardships of the wife more significant or the hardships of the husband when he is genuinely unable to attend the proceedings, were generally the concerns of women is given more importance than that of men. But it is also a matter of concern whether the male counterparts will always be denied preference just because they are male.
However, after the overruling of the judgment passed previously in Krishna Veni Nagam v. Harish Nagam, it has become clear now that video conferencing cannot be directly used until all the methods used for settlement of proceedings have been duly used and when a joint application for the same has been made by both the parties.
Also, we can find that during Covid-19 due to the situations the laws had to be tweaked in order to adjust to the prevailing situations. Therefore, we can conclude that as the law is ever-changing and dynamic it cannot be strictly said that video conferencing will never be used as a means of delivering justice in these types of matters when a joint application is not been filed. I hope I could make all the concepts clear enough, thank you for your patience.
- Mona Aresh v. Aresh Satya Goel AIR 2000 SC 3512 (1).
- 1996 11 SCC 96
- Prashant Kanha, “ Transfer of Matrimonial Cases from one State to another by Supreme Court of India”, Prashant Kanha Advocate-On-Record, July 4, 2021, https://www.prashantkanha.com/transfer-of-matrimonial-cases-from-one-state-to-another-by-supreme-court-of-india/, (visited on October 18, 2022).
- Dr. Subramanian Swamy v. Rama Krishna Hegde 1990 AIR 113, 1989 SCR Supl. (1) 469.
- Santhini v. Vijaya Venketesh (2018) 1 SCC 1.
- AIR 2021 SC 2880.
- 2021 SCC OnLine SC 38.