Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed, possibly, sometimes due to pre- occupation with any other more pressing work in the Court. But, however, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. Skype is one such facility, which is easily available. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad can not only be identified by the Family Court, but also enquired about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information.
IN THE HIGH COURT OF ALLAHABAD
Matters Under Article 227 No. 1107 of 2016
Decided On: 24.02.2016
Appellants: Shilpa Chaudhary
Respondent: Principal Judge and Ors.
Respondent: Principal Judge and Ors.
Hon'ble Judges/Coram:Suneet Kumar, J.
Citation: 2016 (116) ALR 206,AIR 2016 ALL122
1. The applicant and the second respondent contracted marriage as per hindu rites and custom on 20 November 2010. In August 2013 a joint petition under Section 13B of the Hindu Marriage Act, 19551 was instituted before the Family Court, at Muzaffarnagar, seeking divorce on mutual consent. The petition being Case No. 1149 of 2014 (Smt. Shilpa Chaudhary v. Vikram Singh). Though dates were fixed by the Court, however, the matter could not be taken for hearing, finally the applicant left the country for Boston, USA, for pursuing her carrier. The applicant executed power of attorney in favour of her mother for pairvi and to enter into a compromise for dissolution of the marriage before the Family Court. On 28 November 2015 applicant filed an application (11Ka) through her counsel and prayed for decision/disposal of the case, but by the impugned order dated 17 December 2015 the application was rejected.
2. The learned court noted in the impugned order that merely on the basis of an affidavit, the marriage cannot be dissolved in proceedings under Section 13B of Act, 1955. The presence of the parties is necessarily mandatory, further, the electronic facility available in the court cannot be used, as there being no device for interacting with a party who is residing outside the country. The applicant is assailing the order in supervisory proceedings under Article 227 of the Constitution of India.
3. Submission of the learned counsel for the applicant is that there being no possibility of reconciliation between the parties, therefore, the learned court, at the best, could have arrived at a conclusion upon having the statement recorded through videoconferencing or of the power of attorney holder.
4. The first question for determination is whether under Order 18 Rule 3 and 4 of the Code of Civil Procedure recording of statement of witness through videoconferencing is permissible.
5. From the long title of the Family Court Act, 1984, one would gather that every endeavor is required to be made by the family court to assist the parties in arriving at a speedy settlement of disputes relating to the marriage, and/or family affairs.
6. The parties are not only required to be assisted, but also required to be persuaded by the judge in arriving at a settlement while keeping in view the matters of protecting and preserving the institution of marriage between the parties. However, when parties to a marriage come before the family court and ask for dissolution of marriage by mutual consent under Section 13B of Act, 1955, the Court is required to adjourn the motion moved by both the parties by a period not earlier than six months, further, sub-section (2) requires the Court shall on being satisfied, after hearing the parties and making such enquiry as it thinks fit with regard to the averments in the petition pass a decree of divorce declaring the marriage dissolved with effect from the date of such decree. Therefore, there may have been a genuine apprehension in the mind of Family Court, as to whether there is any possibility of reconciliation between the parties or change of mind with regard to consent expressed earlier for dissolution of the marriage.
7. The word "after hearing the parties" used in subsection (2) of Section 13B, however, does not necessarily mean that both parties have to be examined. The word "hearing" is often used in a broad sense which need not always mean personal hearing when there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of the parties. The Family Courts are entitled to ascertain the views of the parties, but however, if one of the parties, appears before the family court and expresses no objection to an affidavit of the other party to be taken on record and is not desirous of cross-examining the deponent of the affidavit, the family court can entertain, unhesitatingly any such application.
8. The Code of Civil Procedure2 is a procedural code and the procedures are subservient to justice. The courts have to use procedures, which facilitates the courts dispensing speedier justice. The court cannot neglect the development of law and the technology that has taken place over the years. A witness or the party may even be within the city where the Court is located or abroad and for reasons it may not be possible for the witness or the party to travel to the court, in such circumstances, to insist on the witness traveling the Court and waiting for hours may not be judicious.
9. In State of Maharashtra v. Dr. Praful B. Desai MANU/SC/0268/2003 : AIR 2003 (4) SCC 601 the Supreme Court in the context of Criminal Procedure Code, where it is provided that the evidence shall be taken in the presence of the accused, interpreted the term "presence" not to mean actual physical presence in the court. The Court noticing the technological advancements held that presence could be through videoconferencing. Relying upon Statutory Interpretations, (second edition) by leading jurist Francis Bennion noted with approval that "an enactment of former days is thus to be read today, in the light of dynamic processing received over the years with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustments. It is constituted by judicial interpretation year in and year out". Thus, while interpreting the law allowances would have to be made for any relevant changes that have occurred since the passing of law, and in social conditions, technology, the meaning of words and other matters. Thus it is clear that so long as the accused and/or his pleader are present when evidence is recorded by videoconferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273 Cr.P.C. Recording of such evidence would be as per "procedure established by law".
10. In National Textile Workers' Union v. P.R. Ramakrishnan (MANU/SC/0025/1982 : 1983 (1) SCC 228) Justice Bhagwati observed, "we cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values........... The law, must, therefore, constantly be on the move adapting itself to the fast-changing society and not lag behind".
11. The principle of updating construction, has been approved in number of decisions; State v. S.J. Choudhary MANU/SC/2199/1996 : (1996) 2 SCC 428), SIL Import, USA v. Exim Aides Silk Exporters (MANU/SC/0312/1999 : 1999 (4) SCC 567).
12. In Basavaraj R. Patil v. State of Karnataka (MANU/SC/0632/2000 : 2000 (8) SCC 740) the question was whether an accused needs to be physically present in Court to answer the question put to him by court while recording his statement under Section 313 Cr.P.C. The term used therein is "personally", to give a strict and restrictive interpretation would mean that the accused had to be physically present in court, however, the Court held that the section had to be considered in the light of the revolutionary changes in the technology of communication and transmission and the marked improvement in facilities for legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in court.
13. Thus, Section 285 provides to whom the commission is to be directed. If the witness is outside the country, arrangements would be required to ensure/comply attendance. However, new advancement of science and technology permit officials of the court, to record evidence in the city where videoconferencing is to take place. The evidence will be recorded by the official deputed by the court in the studio/hall where the videoconferencing takes place.
14. In Dr. Praful (supra) the Supreme Court held that advancement and technology have now, so to say, shrunk the world. Videoconferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away with the same facility and case as if he is present. The judgment of the Supreme Court in Dr. Praful (supra) has been followed by various High Courts. (Refer: Tuncay Aluncas v. Central Bureau of Investigation (2005) 3 AD (Del) 682), Milano Impex Private Ltd. v. Egle Footwear Pvt. Limited (MANU/DE/7572/2011 : 2012 (188) DLT 202).
15. It is not being laid down that the witness can never be called to court. There may be circumstances or situation where the physical presence of the witness may be necessary or required by the court. In such situation it would be obligatory upon the witness/party to present in the court. But where a witness or a party requests that the evidence of a witness may be recorded through videoconferencing the court should be liberal in granting such a prayer in order to save time and avoid delay, the court should take pragmatic view.
16. Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed, possibly, sometimes due to pre- occupation with any other more pressing work in the Court. But, however, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. Skype is one such facility, which is easily available. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad can not only be identified by the Family Court, but also enquired about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information.
17. Reliance was placed on a decision rendered by Calcutta High Court in Amitabh Bagchi v. Ena Bagchi (MANU/WB/0305/2004 : AIR 2005 Calcutta 11) wherein, the Court relying upon Dr. Praful (supra) held that "presence" does not necessarily mean actual physical presence in the Court. Section 3 of the Indian Evidence Act provides that evidence means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under enquiry; evidence would, therefore, include videoconferencing which apply in all cases and not necessarily in criminal matters.
18. Then under Order 18 Rule 4(3) of the amended Code of Civil Procedure, presence in the Court does not necessarily mean physical presence. Rule 4(3) provides for recording evidence either by writing or mechanically in presence of the judge.
19. The Karnataka High Court in Twentieth Century Fox Films Corporation v. N.R.I. Film Production Associates (P) Limited (MANU/KA/0060/2003 : AIR 2003 Karnataka 148) held that mechanical process includes the electronic process both for the Court and Commissioner. Those are empowered to adopt the mode of evidence as per the amended Evidence Act.
20. Dispensation of justice entails speedy justice and justice rendered with least inconvenience to the parties as well as to the witness. If a facility is available for recording evidence through videoconferencing, avoids any delay or inconvenience to the parties such facilities should be resorted to. There is no requirement that the witness must be required to come to court and depose in the physical presence in the court.
21. Coming to the second question whether holder of power of attorney can depose for the principal.
22. The expression "Power of Attorney" has been defined in the Strouds Judicial Dictionary as an authority whereby one "is set in the turn, stead, or place of another" to act for him.
23. The term "power of attorney" indicates a power or authority under seal. A "power of attorney" is an instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the principal.
24. Section 2 of the Powers-of-Attorney Act, 1882, has dealt with this aspect of the matter in the following manner:
"2. Execution under power-of-attorney.--The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the Power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof".
25. Then, what are those acts and actions, which the holder of a power of attorney can perform?
26. For this purpose one has to bear in mind the distinction between all such actions, which are liable to be performed by a person in his individual capacity as distinct from those, which are liable to be performed in exercise of a Statutory duty or function or such actions, which are liable to be regulated by a Statute itself.
27. An agent is always allowed and permitted to make and set forth the pleadings on behalf of his Principal in India. Therefore, deposing on behalf of the Principal in a Court being part of exercise of tendering evidence is not a forbidden exercise to be indulged in by an agent. Such persons are entitled to be cross-examined as the act and art of cross-examination being essentially to ascertain the veracity of the statements/submissions made by a witness and in that process, extract the whole of the truth. Section 18 of the Evidence Act, clearly permits and allows evidence to be collected even from an agent.
28. The power of attorney holder is not entitled to plead on behalf of the Principal, but he can only lead evidence or settle the pleading in the form of a plaint or written statement or petition.
29. In view of the above, it is evident that a general power of attorney holder can depose and also lead evidence on behalf of his principal.
30. Learned counsel for the applicant would submit that the applicant as well as the respondent undertakes to bear the expenses for the videoconferencing through Skype. In such circumstances, if safeguards are, to be followed in examining the evidence from USA, no prejudice will be caused to by the opposite party.
31. For the reasons and law stated herein above, the impugned order dated 17 December 2015 passed by Principal Judge, Family Court, Muzaffarnagar is set aside. The petition is allowed.
32. It is provided that the Court shall proceed on the consent of the applicant through the electronic device, of which, the expenses shall be borne by the applicant for that purposes, accordingly, possible date may fixed.
33. No cost.