Whether video conferencing before family court can be adopted only after failure of settlement?

We have already discussed at length with regard to the complexity and the sensitive nature of the controversies. The statement of law made in Krishna Veni Nagam (supra) that if either of the parties gives consent, the case can be transferred, is absolutely unacceptable. However, an exception can be carved out to the same. We may repeat at the cost of repetition that though the principle does not flow from statutory silence, yet as we find from the scheme of the Act, the Family Court has been given ample power to modulate its procedure. The Evidence Act is not strictly applicable. Affidavits of formal witnesses are acceptable. It will be permissible for the other party to cross-examine the deponent. We are absolutely conscious that the enactment gives emphasis on speedy settlement. As has been held in Bhuwan Mohan Singh (supra), the concept of speedy settlement does not allow room for lingering the proceedings. A genuine endeavour has to be made by the Family Court Judge, but in the name of efforts to bring in a settlement or to arrive at a solution of the lis, the Family Court should not be chained by the tentacles by either parties. Perhaps, one of the parties may be interested in procrastinating the litigation. Therefore, we are disposed to think that once a settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed. That apart, when they give consent that it is necessary in a specific factual matrix having regard to the convenience of the parties, the Family Court may allow the prayer for videoconferencing. That much of discretion, we are inclined to think can be conferred on the Family Court. Such a limited discretion will not run counter to the legislative intention that permeates the 1984 Act. However, we would like to add a safeguard. A joint application should be filed before the Family Court Judge, who shall take a decision. However, we make it clear that in a transfer petition, no direction can be issued for video conferencing. We reiterate that the discretion has to rest with the Family Court 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.

55. Be it noted, sometimes, transfer petitions are filed seeking transfer of cases instituted under the Protection of Women from Domestic Violence Act, 2005 and cases registered under the IPC. As the cases under the said Act and the IPC have not been adverted to in Krishna Veni Nagam (supra) or in the order of reference in these cases, we do intend to advert to the same.

56. In view of the aforesaid analysis, we sum up our conclusion as follows :-

(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.

(ii) 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.

(iii) 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.

(iv) In a transfer petition, video conferencing cannot be directed.

(v) Our directions shall apply prospectively.

(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent

Reportable

Supreme Court of India

Santhini vs Vijaya Venketesh on 9 October, 2017

        CIVIL ORIGINAL JURISDICTION

      TRANSFER PETITION (CIVIL) NO.1278 OF 2016

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Whether matrimonial courts are duty bound to make efforts for reconciliation in matrimonial matters?

It would also be pertinent to mention here that as per the mandate of section 9 of The Family Courts Act, 1984 and section 23(2) of the Hindu Marriage Act, the Matrimonial Courts should make every positive endeavour to bring about reconciliation between the parties so that the matter can be amicably settled on mutually acceptable terms at the very threshold. The courts should make efforts at the initial stage itself so that the burden of the courts is also lessened and the parties are also saved from the arduous litigation. The services of the mediators and counselors especially appointed for this purpose are at the disposal of the Family Courts, and should be utilized to the fullest so that parties are reconciled or agree to part mutually and amicably. Let the object of section 9 of the Family Courts Act and section 23(2) HMA not be defeated by a ritualistic exercise but a concerted, cohesive and conscientious effort on the part of the Matrimonial Courts to bring the parties to a pacific agreement. In-time intervention of the courts dealing with marital disputes with devotion of sufficient hearings at the initial stage itself may save such parties this long ordeal. The courts should make sustained and persistent attempts even when the pleadings are complete and evidence led, as it will certainly yield potent results. 

Delhi High Court

Smt.Kamlesh Kumari vs Shri Mehtab Singh on 16 January, 2012

Author: Kailash Gambhir

Citation: 2012IIAD(Delhi)893, 

2013IAD(Delhi)421, 186(2012)DLT332,I(2012)DMC247

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When non-disclosure of past life of wife during maidenhood does not amounts fraud?

Upon consideration of the submissions made by the contesting parties and the materials on record it appears to us that the petitioner claimed annulment of the marriage, so far as Clause (c) is concerned, on the ground of fraud by suppression of premarital pregnancy of the respondent by one S.S. Roy. A careful rading of the said Clause (c) clearly indicates that the expression 'fraud' used in the said Clause has a meaning in which such term is understood in legal parlance. Material fact or circumstance must be taken to mean such fact or circumstances, concerning the respondent, which if known to the petitioner, might have dissuaded him from consenting to the marriage with the respondent.

5. So far as Clause (d) abovementioned is concerned the pregnancy of the respondent must have been in existence at the time of the marriage, ruling out thereby a pregnancy, which did not exist at such relevant time.

6. Sections 20 and 21 of the Act lay down what a petition should contain and attract the provisions of the Civil Procedure Code relating to the verification of the plaint to such petitions. It can, therefore, be said that in case of petition on the ground of fraud, the requirements of Order 6, Rule 4 must have to be fulfilled. In the instant case, from a reading of the petition, it appears that the fraud alleged consisted of suppression of previous pregnancy of the respondent from the petitioner. There is no material to show the alleged premarital pregnancy of the respondent. Such pregnancy not having been established by evidence, the allegation of fraud by suppression of the said suspected pregnancy cannot be effective as a ground for annulment of marriage. The other ground of respondent's pregnancy in terms of Clause (d) of Sub-section (1) of Section 12, as already stated hereinabove, not having been proved by evidence, but being merely a product of suspicion, cannot be said to constitute a ground in terms of the said Clause.

Calcutta High Court

Provat Kumar Chatterjee vs Smt. Gita Chatterjee on 17 March, 1994

Equivalent citations: 98 CWN 1133, II (1994) DMC 248

Bench: S Mookherjee, A Bhattacharyya

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When marriage should not be dissolved on ground of mental cruelty?

 The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and respondent being highly qualified persons, the appellant being Principal in ITI College, the respondent working as a Librarian in a Government Institute, an isolated friction on some occasion like festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.

Supreme Court of India

Gurbux Singh vs Harminder Kaur on 8 October, 2010

Bench: P. Sathasivam, B.S. Chauhan

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5010 OF 2007
Citation: AIR2011SC114, 2010 (83) ALR 466, 2011 1 AWC(Supp)735SC, 2011(1)BomCR235, (SCSuppl)2011(4)CHN22, II(2010)DMC706SC, JT2010(11)SC58, 2011(2)KLJ1, 2011-1-LW115, 2011(1)PLJR75, (2011)161PLR130, RLW2011(1)SC829, 2010(10)SCALE659, (2010)14SCC301

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Leading Judgment on ingredients Of Offence Punishable U/S 498 A Of IPC

C. Veerudu Vs. State Of A.P.(1989) CR. L.J. NOC 52(A.P.)

• S. 498 A The sole constituent of offence u/s 498 A is cruelty which means 'wilful conduct'. The Word wilful contemplates obstinate and deliberate brhaviour on part of offender for it to amount to cruelty. Thus 'Mensrea' is an esssential ingredient of the offence.
• The principles are that the standard of proof of cruelty are higher in degree in criminal law than in civil law under the matrimonial causes.
• The intention or mensrea on the part of one spouse to injure the other is not a necessary element of cruelty in civil law for martimonial causes while it is an essential element in criminal law.
• It is enough if crulety is proved by preponderance of probabilities in civil law while in criminal trials the coduct of cruelty has to be proved beyond all resonable doubt.
• It is immaterial in civil law whether respondent's conduct was aimed at the other spouse or is due to unwarranted indifference attributable perhaps to selfishness or laziness while it is very much material in criminal proceeding and for relief of matrimonial causes in civil law the conduct of spouse need not necessarily result in danger to life, limb or health but a reasonable apprehension of such danger is enough, whereas section 498 A contemplates such a conduct besides being wilful to result in the likelihood of driving the woman to commit suicide or to cause grave injury or danger to life, limb or health.

[ In the High Court of Andhra Pradesh, Criminal Appeal No. 756 of 1987. ] 1

VEERULU V/S STATE OF ANDHRA PRADESH, decided on Friday, June 10, 1988.  Judge(s) : BHASKARA RAO

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