“Family Courts Must Encourage The Use Of Technology To Facilitate Speedy and Effective Solutions”: Justice Chandrachud Explains His Reasons For the Dissent [Read Judgment]

Vide its judgment dated 9^th October, 2017, a Bench of 3 judges in Santhini v. Vijaya Venketesh had overruled directions issued in the case of Krishna Veni Nagam v. Harish Nagam (judgment dated 10^th March 2017). The 3-judge Bench had delivered its verdict by a majority of 2:1.

Chief Justice Dipak Misra and Justice A.M. Khanwilkar delivered the majority verdict, while Dr. Justice D.Y. Chandrachud dissented.

In Krishna Veni Nagam’s case, a two-Judge Bench of the Apex Court, comprising Justices AK Goel and UU Lalit, had provided an alternative of video conferencing to parties seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence. Later, a coordinate Division Bench, comprising Justices Kurien Joseph and Banumathi, had expressed its reservations on the use of videoconferencing in matrimonial matters, thereby referring the matter to a larger Bench.

The majority verdict delivered by Chief Justice Misra and Justice Khanwilkar had held that if proceedings are directed to be conducted through videoconferencing, “the spirit of the 1984 Act will be in peril and further the cause of justice would be defeated”.

The main points of the majority judgment can be seen here.

Justice DY Chandrachud had recorded his conclusions, while stating that the reasons for his inability to agree with the majority judgment will be delivered separately. His reasons have now been uploaded on the website of the Supreme Court.

The main reasons in Justice Chandrachud’s dissent can be summarized as below:

• The decision in Krishna Veni Nagam does not stipulate a mechanical direction that in every transfer petition, parties should be directed to take recourse to video conferencing facilities. The language of the judgment is permissive and is sufficiently flexible to accommodate an application of mind to the interests of justice, the position and circumstances of parties as well as to the feasibility (both in technical and practical terms) of adopting video conferencing as a solution to spatial distances.


• A misconstruction of a judgment of a court (Krishna Veni in this case) either by coordinate courts or by courts from whose decision an appeal lies is no justification to overrule the former. It is the misconstruction which has to be set at rest.


• Under Section 9 (1) of the Family Courts Act, 1984 and Section 23 (2) of the Hindu Marriage Act, 1955, a clear discretion is provided to the Family Court to evolve the procedure which it will follow during the hearing of a case.


• Section 10 (3) of the Family Courts Act enables a Family Court to lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings. Far from embodying a specific bar or prohibition to the use of video conferencing, this provision gives the Family Court ample powers to use video conferencing in matrimonial disputes, where appropriate.


• Section 11 of the Family Courts Act provides for “in camera” proceedings in specified circumstances. Video conferencing and in-camera proceedings are not irreconciliable. Video conferencing, in itself, is a private interaction. It does not involve third persons or spectators apart from the two participants between whom the video conferencing is taking place (judge or counsellor and one of the parties to the dispute). As long as it is not accessible to the public, privacy is maintained. Therefore, it does not run contrary to the intent of Section 11, which is to maintain privacy.


• Video conferencing has made face-to-face interactions possible even in the absence of physical proximity. Technological developments have brought a turning point in the history of human civilization and have resulted in enhanced efficiency, productivity and quality of output in every walk of life. Technology has paved the way for an open and accessible world where physical barriers to communication and connectivity have broken down.


• Even prior to Krishna Veni, there has been a line of judgments of various High Courts which have allowed video conferencing in matrimonial disputes. These decisions are important because they indicate a robust attempt to foster flexible, technology-based solutions, in the context of matrimonial disputes. High Courts in each state are aware of the social and economic circumstances prevailing there and the feasibility of adopting technology. The assessment by the High Courts of local conditions ought to be respected. This to my mind is the mandate of a vibrant federal structure.


• Video conferencing has been applied in matrimonial proceedings in various other jurisdictions. With the advancement of technology, many countries have laid down detailed guidelines regulating the use of video conferencing technology in Family Courts. In the absence of detailed statutory guidelines, courts have been held to have wide powers to regulate the procedure to be followed, including allowing video conferencing. Guidelines have developed through case-law.


• Insistence on physical presence is questionable in a situation where our family courts are overburdened and are unable to provide timely justice. To deprive parties of the benefit of video conferencing will result in a denial of access to justice.

However, Justice Chandrachud clarified that the overriding factor in the application of video conferencing must be that the use of video conferencing in any particular case must be consistent with furthering the interests of justice and should cause minimal disadvantage to the parties. He also added that recourse to technology cannot “be conditioned on the consent of both spouses for, this will only enable one spouse to procrastinate or delay the proceeding. Withholding consent to video conferencing will then become a tool in the hands of one of the litigants to delay the proceedings”.

He, thus, concluded: “There is, in my view, no basis either in the Family Courts Act 1984 or in law to exclude recourse to video conferencing at any stage of the proceedings. Whether video conferencing should be permitted must be determined as part of the rational exercise of judgment by the Family Court… Family Courts must encourage the use of technology to facilitate speedy and effective solutions. Above all, it must be acknowledged that a whole-hearted acceptance of technology is necessary for courts to meet societal demands for efficient and timely justice.”

Read the Judgment Here