The revision is directed against the order dated 05.11.2015 passed in I.A.No.1099 of 2015 in H.M.O.P.No.506 of 2015 on the file of the Additional Principal Family Court, Coimbatore, refusing to permit the petitioner to appear in Court proceedings through video conferencing.
2. Admittedly, the petitioner is working at Los Angles as Software Engineer. The wife has preferred H.M.O.P.No.506 of 2015 seeking divorce under Section 13 (1)(i-a) of the Hindu Marriage Act and there is also another H.M.O.P.No.2477 of 2015 filed by the husband pending on the file of the Additional Principal Family Court, Chennai for restitution of conjugal rights. Both the H.M.O.Ps are now pending before the Family Court, Coimbatore by virtue of the order of this Court dated 22.01.2016 passed in Tr.C.M.P.Nos.580 of 2015 and 29 of 2016. The application seeking permission to examine the husband through video conferencing, is now negatived by the Family Court, Coimbatore.
3. Of late, in matrimonial disputes, people who are stuck in overseas, are afraid of travelling to India due to LOC, passport impounding fears and red corner notices. Nevertheless, with the technical advancement catching up and the allotment of technical and other gadgets to the Indian Courts, especially, the Family Courts equipped with video conferencing facilities and the legitimate applicability of the same, have eased the situation. In STATE OF MAHARASHTRA -VS- DR.PRAFUL B.DESAI [2003) 4 SCC page 601] concerning medical negligence, the Hon'ble Supreme Court permitted the evidence of a foreign medical expert to be recorded through video conferencing. The Hon'ble Supreme Court had followed MARY LAND -vs- SANTRA AUN CRAIG in 1990 (497) US 836.
4. The Civil Courts have also been receptive of taking depositions in matrimonial proceedings through video conferencing from people based in overseas. The learned counsel appearing for the respondent pointed out that the earlier proceedings were all in a petition for divorce by mutual consent. In matters were the parties are at logger heads, the recording of evidence through Video Conferencing should not be permitted as the Presiding Officer will not have the opportunity to know the demeanour of the party. As stated earlier, the husbands in matrimonial proceedings are unwilling to come to India to participate in the proceedings in person for the fear of arrest, impounding of passport etc.
5.
Section 11 of the Family Courts Act, 1984 suggests and provides for in camera proceedings, so that there will not be any ambiguity in understanding the parties. But many of the Family Courts are not adopting the unique path-breaking initiatives. So far as the case on hand is concerned, the husband has initiated a matrimonial suit for restitution of conjugal rights, whereas the wife has filed for divorce. The husband is living in Los Angles, United States of America. After their wedding, the wife was also staying with him for some time. Thereafter, even according to the respondent-wife, due to various reasons which are reflected in the statements in the plaint as well as in the applications, she has left the matrimonial house and came back to India. The petitioner-husband had made an application before the Court below for examining by way of video conferencing. According to him, he is residing in Unites States of America and he is an employee in a Company at Los Angles. In the course of his employment, he has to remain at the place of posting and it will be extremely difficult and prejudicial for him to come to India to depose in the case. According to him, it also involves unnecessary amount of delay, expenditure and inconvenience, which, on the facts and circumstances of the case will be patently unreasonable and extremely harsh on him. However, attendance of the petitioner can be procured without delay, expenses and inconvenience, it the Court allows him to be examined by way of video conferencing. There is no difficulty in examining him in that way, because, perjury, if any, is a punishable offence, though, as it is, he is represented through his father, as Power Agent, who is said to have full knowledge of the case.
6. The word "presence" does not necessarily mean actual physical presence in the Court.
Section 3 relating to interpretation clause of the Evidence Act 1872, dealing with the meaning of "Evidence" reads as follows:
"Evidence"- Evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
The expressions "Certifying Authority", Electronic Signature, "Electronic Signature Certificate", "electronic form", "electronic records", "information", "secure electronic record", "secure electronic signature" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000. Therefore, the interpretations of the Hon'ble Supreme Court on that score is that in the Court, physical presence of a person may not be recorded for the purpose of adducing evidence. Therefore, video conferencing is included in evidence.
7. Though the Hon'ble Supreme Court had given the said verdict in criminal matters, it is applicable to all cases, there cannot be any embargo. So far as the matrimonial matter is concerned, excepting the fact of the touch of the person concerned, video conferencing is an advancement of Science and Technology, which permits one to see, hear and talk with some one, who is far away with the same facility and ease as if he is present herein. The application of any technique through advancement of technology, is only to make things easier and flexible. When a recorded message is shown in a TV news telecast and same is watched by us, can it be said that we have not watched it? The Court is meant for the people and when the science and technology have given appropriate facility to the people, the same should be put to optimum use. The hand held mobile phones, android phones, tablets have 3G and 4G which stand for ''generation of the mobile network". The higher the numbers before the 'G' means more power to send out and receive more the information and therefore, the ability to achieve the higher efficiency through the wireless network. When the mobile broad band internet is available even without power connectivity, the video chat is possible. Video conferencing is one such facility even under Section 65-A and B of the Evidence Act and a special provision as to evidence relating to electronic record and admissibility of the same, has been introduced in the amended Act. There should not be any bar of examination of witness by way of video conferencing. The learned Family Judge ought not to have ignored the same as unnecessary. It should have been evaluated with the amount of delay, expenses and inconvenience.
7a. In fact the Hon'ble Supreme Court regarding Process Re-engineering is suggesting rule for ICT enablement of the Court processes. As a first step for process re-engineering, electronic filing, recording of evidence through video conferencing, electronic evidence, service of summons etc are suggested. On the utilization of video conferencing facilities, there are more than lakh of cases across the country have been conducted which resulted in expediting trials apart from tremendous financial savings.
8. Admittedly, electronic video conferencing is cheaper and facilitate to avoid delay of justice. Wherever there is a linkage facility available, then the attendance of the witness may be dispensed with and examination may be done through video conferencing. Order 18 Rule 4 (3) of the Code of Civil Procedure provides for recording evidence either by writing or mechanically in the presence of the Judge. The recording of the evidence by the Court is through Commissioner, as the case may be. Wherever the evidence is recorded by the Commissioner, he shall return such evidence together with his is report in writing, signed by him to the Court appointing him. Such evidence taken shall form part of the record of the suit. Therefore, writing manually and mechanically can be both applicable for the Court and Commissioner. The mechanical process also includes electronic process for both the Court and the Commissioner. If the law Courts do no permit the technology development in the Court proceedings, it would be lagging behind compared to the other sectors. The technology is only a tool and necessary safeguards have to be taken for the purpose of recording evidence through audio-video link.
9. The whole compass of the argument made by the learned counsel for the respondent-wife is that the application for recording evidence by video conferencing is only dilatory tactics on the part of the petitioner. According to her, the approach of the petitioner herein is not an honest one.
10. The only question that arises before this Court is as to whether the application for recording the evidence by way of video conferencing, is permissible.
11. Therefore, without going into other questions, the trial Court is only directed to follow the necessary safeguards for taking evidence through video conferencing by giving a day-to-day hearing, preferably, within three months from the date of communication of the order. The petitioner is directed to bear any incidental expenses in this regard. It is made clear that such expenses is directed to be paid by the petitioner-husband without prejudice to the rights and contention of the parties. The court may accordingly fix time for video conferencing considering different time zone of the land, in which, the husband is living and intimation be given to him through electronic mail with respect to the time and date to be fixed for Video conferencing well in advance. Therefore, the order impugned is set aside and the Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
23.01.2017 srn To The Additional Principal Family Court, Coimbatore.
PUSHPA SATHYANARAYANA.J srn C.R.P.(PD).No.1012 of 2016 and C.M.P.No.5676 of 2016 23.01.2017 http://www.judis.nic.in