can use video conferencing instead of summoning the husband to the place where wife resides: Supreme Court 2017

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.

 

 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL original JURISDICTION

Transfer petition (CIVIL) NO. 1912 OF 2014

Krishna Veni Nagam …PETITIONER

VERSUS

Harish nagam …RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J

1. This transfer petition has been filed for transfer of Case
No.179A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled
“Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding
Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court
Hyderabad, Andhra Pradesh.
2. Case of the petitioner-wife is that she was married to the respondent-
husband in the year 2008 at Kukatpally, Hyderabad. She was blessed with a
girl child in 2009. While living in her in-law’s house at Jabalpur, she
was ill-treated. She was subjected to mental and physical torture. She
suffered injury on her spinal cord. She left the matrimonial home in 2012.

3. The respondent-husband filed application for restitution of conjugal
rights which was later on got dismissed as withdrawn. Thereafter, a
divorce petition has been filed at Jabalpur while the petitioner has filed
a domestic violence case at Hyderabad. Since the petitioner-wife, along
with her minor daughter, is living with her parents, she cannot undertake
long journey and contest the proceedings at Jabalpur by neglecting her
minor child. She also apprehends threat to her security in attending
proceedings at Jabalpur.
4. On 7th January, 2015, notice was issued and stay of proceedings was
granted. The matter has been pending in this Court for more than two years.

5. On 9th January, 2017 when the matter came-up for hearing, the
following order was passed:
“This petition is filed under Section 25 of the Code of Civil Procedure
seeking transfer of proceedings initiated by the respondent under Section
13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who
is the wife of the respondent, she will face acute hardship in contesting
the proceedings at Jabalpur as she is living at Hyderabad. The marriage
took place at Hyderabad. The petitioner has to look after her minor
daughter who is living with her.
Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the
present nature could be filed at the place where the marriage is
solemnized or the respondent, at the time of the presentation of the
petition, resides or where the parties to the marriage last resided
together or where the wife is residing on the date of the presentation of
the petition, in case she is the petitioner or in certain situations (as
stipulated in clause iv) where the petitioner resides.
This Court is flooded with petitions of this nature and having regard to
the convenience of the wife transfer is normally allowed. However, in the
process the litigants have to travel to this Court and spend on litigation.
Question is whether this can be avoided?
We are of the view that if orders are to be passed in every individual
petition, this causes great hardship to the litigants who have to come to
this Court. Moreover in this process, the matrimonial matters which are
required to be dealt with expeditiously are delayed.
In these circumstances, we are prima facie of the view that we need to
consider whether we could pass a general order to the effect that in case
where husband files matrimonial proceedings at place where wife does not
reside, the court concerned should entertain such petition only on the
condition that the husband makes appropriate deposit to bear the expenses
of the wife as may be determined by the Court. The Court may also pass
orders from time to time for further deposit to ensure that the wife is not
handicapped to defend the proceedings. In other cases, the husband may take
proceedings before the Court in whose jurisdiction the wife resides which
may lessen inconvenience to the parties and avoid delay. Any other option
to remedy the situation can also be considered.
However, before passing a final order, we consider it necessary to hear
learned Attorney General who may depute some law officer to assist this
Court.
List the matter on 31st January, 2017.
We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as
amicus curiae. A set of papers may be furnished to the amicus.”
(Emphasis added)

6. Thus, the question is whether an order can be passed so as to provide
a better alternative to each individual being required to move this Court.

7. We have already noted that large number of transfer petitions of the
present nature are being filed in this Court and are being mechanically
allowed. Similar observation was made by this Court more than 10 years ago
in Anindita Das v. Srijit Das[1] “…On an average at least 10 to 15
transfer petitions are on board of each court on each admission day.” It
has also been observed in a number of cases that in absence of any male
member being available to accompany the wife who is party to matrimonial
proceedings to a different place, it may render it “expedient for ends of
justice” to transfer proceedings[2].

8. Of course in some cases, it was observed that instead of proceedings
being transferred, the husband should pay travel, lodging and boarding
expenses of the wife and/or person accompanying for each hearing[3]. This
trend has also been followed in other matrimonial disputes, including
guardianship dispute, etc.[4]

9. Spirit behind the orders of this Court in allowing the transfer
petitions filed by wives being almost mechanically allowing is that they
are not denied justice on account of their inability to participate in
proceedings instituted at a different place on account of difficulty either
on account of financial or physical hardship. Our Constitutional scheme
provides for guaranteeing equal access to justice[5], power of the State to
make special provisions for women and children[6] and duty to uphold the
dignity of women[7]. Various steps have been taken in this direction[8].

10. As noted in the Order dated 9th January, 2017 quoted above, Section
19 of the Act permits proceedings to be filed not only at a place where the
wife resides but also at place where marriage is solemnized or the place
where the parties last resided together. It is mostly in the said
situations that the wife has hardship in contesting proceedings. At the
same time, under the law the husband is legally entitled to file
proceedings at such places. Territorial jurisdiction of court is
statutorily laid down in C.P.C. or other concerned statutes.

11. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel
as amicus curiae. Learned amicus has suggested that Section 19 of the Act
should be interpreted to mean that the jurisdiction at the place other than
where wife resides being available only at the option of the wife or that
such jurisdiction will be available in exceptional cases where the wife is
employed and the husband is unemployed or where the husband suffers from
physical or other handicap or is looking after the minor child. Even
though we are unable to give such interpretation in the face of plain
language of statute to the contrary and it is for the legislature to make
such suitable amendment as may be considered necessary, we are certainly
inclined to issue directions in the interest of justice consistent with the
statute.

12. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it
will be appropriate to give some directions to meet the situation. He
submitted that paramount consideration in dealing with the issue ought to
be the interest of justice and not mere convenience of the parties. Thus,
where husband files a petition at a place away from the residence of the
wife, the husband can be required to bear travel and incidental expenses of
the wife, if it is so considered appropriate in the interest of justice.
At the same time, if the husband has genuine difficulty in making the
deposit, proceedings can be conducted by video conferencing. At least one
court room in every district court ought to be equipped with the video
conferencing facility. The interest of the minor child has also to be kept
in mind along with the interest of the senior citizens whose interest may
be affected by one of the parties being required to undertake trips to
distant places to face the proceedings. Protracted litigation ought to be
avoided by better management and coordination so that number of
adjournments can be reduced.

13. We have considered the above suggestions. In this respect, we may
also refer to the doctrine of forum non conveniens which can be applied in
matrimonial proceedings for advancing interest of justice. Under the said
doctrine, the court exercises its inherent jurisdiction to stay proceedings
at a forum which is considered not to be convenient and there is any other
forum which is considered to be more convenient for the interest of all the
parties at the ends of justice. In Modi Entertainment Network and anr.
v. W.S.G. Cricket Pte. Ltd.[9] this Court observed:
“19. In Spiliada Maritime [10]case the House of Lords laid down the
following principle:
“The fundamental principle applicable to both the stay of English
proceedings on the ground that some other forum was the appropriate forum
and also the grant of leave to serve proceedings out of the jurisdiction
was that the court would choose that forum in which the case could be tried
more suitably for the interest of all the parties and for the ends of
justice.”
The criteria to determine which was a more appropriate forum, for the
purpose of ordering stay of the suit, the court would look for that forum
with which the action had the most real and substantial connection in terms
of convenience or expense, availability of witnesses, the law governing the
relevant transaction and the places where the parties resided or carried on
business. If the court concluded that there was no other available forum
which was more appropriate than the English court, it would normally refuse
a stay. If, however, the court concluded that there was another forum
which was prima facie more appropriate, the court would normally grant a
stay unless there were circumstances militating against a stay. It was
noted that as the dispute concerning the contract in which the proper law
was English law, it meant that England was the appropriate forum in which
the case could be more suitably tried.”

Though these observations have been made in the context of granting
anti suit injunction, the principle can be followed in regulating the
exercise of jurisdiction of the court where proceedings are instituted. In
a civil proceeding, the plaintiff is the dominus litis but if more than one
court has jurisdiction, court can determine which is the convenient forum
and lay down conditions in the interest of justice subject to which its
jurisdiction may be availed[11].

14. One cannot ignore the problem faced by a husband if proceedings are
transferred on account of genuine difficulties faced by the wife. The
husband may find it difficult to contest proceedings at a place which is
convenient to the wife. Thus, 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. We understand
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 of video conferencing 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 on video conferencing, obviating the needs of the party to appear
in person. In several cases, this Court has directed recording of evidence
by video conferencing[12].

15. The other difficulty faced by the parties living beyond the local
jurisdiction of the court is ignorance about availability of suitable legal
services. Legal Aid Committee of every district ought to 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 ought to 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.

16. The advancement of technology ought to be utilized also for service
on parties or receiving communication from the parties. 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. These steps may, to some extent, take care of the
problems of the litigants. These suggestions may need attention of the
High Courts.

17. We are thus of the view that it is necessary to issue certain
directions which may 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 on the ground that if proceedings are not
transferred it will result in denial of justice.

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.

19. We hope the above arrangement may, to an extent, reduce hardship to
the litigants as noted above in the Order of this Court dated 9th January,
2017. However, in the present case since the matter is pending in this
Court for about three years, we are satisfied that the prayer for transfer
may be allowed. Accordingly, we direct that proceedings in Case
No.179A/2013 under Section 13 of the Act titled “Harish Nagam vs. Krishna
Veni Nagam” pending on the file of II Presiding Judge, Family Court,
Jabalpur, Madhya Pradesh shall stand transferred to the Family Court,
Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee
court may explore the possibility of an amicable settlement through
mediation. It will be open to the transferee court to conduct the
proceedings or record evidence of the witnesses who are unable to appear in
court by way of video conferencing. Records shall be sent by court where
proceedings are pending to the transferee court forthwith.

20. The Registry to transmit a copy of this order to the courts
concerned. A copy of this order be sent to all the High Courts for
appropriate action.

21. We place on record our appreciation for the valuable assistance
rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General
and Mr. C.A. Sundaram, learned Senior Advocate.
21. The transfer petition is disposed of accordingly.

…………..…………………………….J.
[ADARSH KUMAR GOEL]

.….……………………..……………..J.
[UDAY UMESH LALIT]

NEW DELHI;
MARCH 9, 2017.
———————–
[1] [2] (2006)9 SCC 197
[3] Mona Aresh Goel v. Aresh Satya Goel (2000) 9 SCC255; Lalita A.
Ranga v. Ajay Champalal Ranga (2000) 9 SCC 355; Deepa v, Anil Panicker
(2000) 9 SCC 441; Archana Rastogi v. Rakesh Rastogi (2000)10 SCC 350;
Leena Mukherjee v. Rabi Shankar Mukherjee (2002) 10 SCC 480; Neelam
Bhatia v. Satbir Singh Bhatia (2004) 13 SCC 436; Soma Choudhury v.
Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani v. Tej Pal (2007) 15 SCC
597; Vandana Sharma v. Rakesh Kumar Sharma (2008)11 SCC 768; and Anju
Ohri v. Varinder Ohri (2007) 15 SCC 556.
[4] [5] Premlata Singh v. Rita Singh (2005) 12 SCC 277
[6] Gana Saraswathi v. H. Raghu Prasad (2000)10 SCC 277
[7] [8] Article 39A of the Constitution of India, 1950.
[9] [10] Article 15(3) of the Constitution of India, 1950.
[11] Article 51-A(e) of the Constitution of India, 1950.

[12] [13]. In Articles 243-D and 243-T of the Constitution, provision has
been made for reservation for women in Panchayats and Municipalities by
73rd and 74th Amendments. Need for affirmative action consistent with the
Article 15(3) of the Constitution has led to several measures being adopted
by the legislature, executive as well as the judiciary to advance gender
justice. The Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) underlines the awareness of the international
commitments on the subject which has inspired several judgments of this
Court [Vishaka v. State of Rajasthan (1997) 6 SCC 241; Arun Kumar Agrawal
v. National Insurance Co. Ltd. (2010) 9 SCC 218; Charu Khurana v. Union
of India (2015)1 SCC 192; Prakash v. Phulavati (2016)2 SCC 36; Danial
Latifi v. Union of India (2001) 7 SCC 740; Voluntary Health Assn. of
Punjab v. Union of India (2013) 4 SCC 1 and; Mackinnon Mackenzie & Co.
Ltd. v. Audrey D’Costa (1987) 2 SCC 469. It was observed in Voluntary
Health Assn. as under:

“20. It would not be an exaggeration to say that a society that does
not respect its women cannot be treated to be civilised. In the first part
of the last century Swami Vivekanand had said:

‘Just as a bird could not fly with one wing only, a nation would not
march forward if the women are left behind.’”

[14] [15] (2003)4 SCC 341
[16] [17] Spiliada Maritime Corpn. V. Cansulex Ltd. (1986)3 All ER 843
[18] [19] Kusum Ingots & Alloys Ltd. v. Union of India and anr. (2004)
6 SCC 254 para 30
[20] [21] State of Maharashtra etc. v. Dr. Praful B. Desai etc. (2003) 4
SCC 601; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and
anr. (2005) 3 SCC 284; Budhadev Karmaskar (4) v. State of West Bengal
(2011) 10 SCC 283; Malthesh Gudda Pooja v. State of Karnataka and ors.
(2011) 15 SCC 330

Judgement