'Technology Can't Be Hurdle': Gujarat HC Sets Aside Family Court's 'Overly Technical' Conditions For Husband's VC Appearance In Divorce Case
The Gujarat High Court permitted a husband to appear before the family court via video conference in proceedings for divorce by mutual, observing that the family court had adopted a hyper-technical approach over use of VC by the husband to appear in the matrimonial proceedings. The court noted that the family court had issued 15 directions including appointment of a Court Commissioner to...
The Gujarat High Court permitted a husband to appear before the family court via video conference in proceedings for divorce by mutual, observing that the family court had adopted a hyper-technical approach over use of VC by the husband to appear in the matrimonial proceedings.
The court noted that the family court had issued 15 directions including appointment of a Court Commissioner to record assent of husband which was unknown procedure, adding that technology should serve as handmaiden to justice not a hurdle in the path and must be accessible to litigants.
Justice JC Doshi in his order observed:
"Let me say that technology should serve as handmaiden to justice, and not a hurdle in the path. It must remain simple, reliable and accessible to litigant. If technology or its adoption becomes complex, it risks delaying justice rather than delivering it. Court, therefore, must adopt technology with litigant friendly approach, with focus on fairness, efficiency and human sensitivity. In essence, technology should advance the cause of justice and not chaos. Technology should ensure that timely justice becomes a reality with care. In the background of aforesaid reasons, without hesitation, this Court holds that the learned Family Court, by passing the orders below Exhibits-15 and 16, instead of helping the litigant in advancing their cause in getting justice, instead created hurdles in the path. Thus, the impugned orders deserve to be set aside".
The court was hearing a plea moved by a couple who had filed a joint petition seeking mutual consent divorce before the family court.
As the husband lives in Australia, he had filed a plea seeking permission to be examined on video conferencing. However the family court asked him to file an application as per format in Schedule II of Gujarat High Court Rules for Video Conferencing for Courts (High Court and Subordinate Courts), 2021.
The husband with the consent of the wife, filed an application as per the Rules and prayed for permission to conduct video conference through portable device to record his consent and to complete the second motion.
Though the family court allowed the plea however it issued various directions. Against this the petitioners moved the high court.
Examining the directions issued by the family court, the high court said that family court without examining whether the Rules on Video Conferencing for Courts are applicable to matrimonial proceedings where joint plea for divorce is filed and where one of the spouse lives abroad, had passed the order for verification of petitioner's consent.
The Family Court had asked petitioner to disclose the name of the 'Coordinator' at a remote point by the concerned Embassy, without examining whether concerned Embassy or Consulate at Australia has appointed any person as Coordinator or whether the Rule 9 of 'the Rules' would apply in such a case. Further, it directed that the official email ID, name of the Coordinator along with phone number shall have to be disclosed.
Further, the petitioner husband was directed to obtain the time slot for proposed video conference from the Coordinator of the remote point and same was to be informed to the Court. Further a Court Commissioner was appointed to verify content of the affidavit during video conferencing and verify the husband's identity. The petitioner husband was further directed to pay towards remuneration to the Court Commissioner and Coordinator and pay for expenses.
The husband filed another application requesting family court to forward its order to the Indian Consulate Office at Australia for fixing the date and time for video conference. However this was rejected by the family court observing that party can produce the certified copy of the order before the Indian Consulate and can obtain the date and time period from the consulate to join the Court via VC.
The high court said, "Perusal of the impugned order indicates that perhaps the learned Family Court failed to understand applicability of 'the Rules' notified by the High Court of Gujarat dated 2nd June, 2021, more particularly, its object and reasons. Firstly, the learned Family Court discarded the application Exhibit-14 on the ground that one has to file the application as per the Schedule II of 'the Rules'. The approach of the learned Family Court, therefore, appears to be hyper-technical".
The court said that the Rules are meant to examine the formal witnesses, where the Court or Court monitored video conferencing point and remote video conferencing point are well within the domain of the Court.
However, the court noted, in the present case where husband wanted video conferencing platform to give his assent in a second motion in a mutual divorce petition, Family Court had ordered to multiple directions, which virtually negates the request of video conferencing.
"I fail to understand that how Family Court can pass such kind of the orders, which instead of smoothening the process, smothered it. The two petitioners, i.e. husband and wife, willingly want a divorce and one of them wants to connect the Court through video conference as he lives in Australia. However, the nit-picking approach of the learned Family Court frustrated their valid desire and request. The learned Family Court has unnecessarily made the issue overcomplicated and fastidious. This Court does not subscribe to such approach of the learned Family Court," the court added.
Further the court noted, the verification of husband's assent is to be verified by the court and not by a court commissioner. The court said that under Family Court's Act the concerned Judge is required to record the oral evidence in his presence and may permit to file an affidavit, but recording the assent of the husband, living outside India by appointing the Court Commissioner is unknown procedure.
Setting aside the family court order, the high court permitted the husband to appear through video conferencing via his portable device from his own place; however, that video conference shall take place during the working of the family Court hours.
It further directed:
1. Family Court will direct a date and time for the video conferencing to record the husband's assent, and the time shall be as per the Indian Standard Time during the family Court hours.
2. Family Court shall forward the video conferencing link of the platform authorized by the High Court and used by the Family Court to the email ID of the petitioner; shall also inform it through the petitioner's advocate
3. If there is a doubt over the husband's identity is raised by the wife, then the husband will forward his identity card recognized by the Government of India through electronic mode.
4. The husband was directed to remain visible and audible through the VC session before the family court.
The court allowed the petition.
Case title: X & Anr v/s NA