# Smt. Shilpa Chaudhary v. Principal Judge & Anr

- **Citation:** (2016) 3 ILRA 429
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-24
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shilpa-chaudhary-v-principal-judge-anr-43467
- **Pages:** 7

## Headnote

customs. Owing to matrimonial discord, the parties jointly filed a petition under Section 13B of the
Hindu Marriage Act, 1955 before the Family Court, Muzaffarnagar, seeking divorce by mutual consent,
registered as Case No. 1149 of 2014. Due to repeated adjournments and the applicant's relocation to
Boston, USA for professional reasons, the matter could not be taken up. The applicant executed a
power of attorney in favour of her mother to pursue the proceedings and to enter into a compromise.
An application seeking disposal of the case was filed, which was rejected by the Family Court vide
order dated 17 December 2015 on the ground that marriage could not be dissolved on affidavit alone
and that personal presence of both parties was mandatory, further observing that electronic modes of
interaction could not be adopted.

Challenging the said order under Article 227 of the Constitution of India, the applicant contended that
there was no possibility of reconciliation and that the Family Court ought to have recorded her consent
either through videoconferencing or through her power of attorney holder. The High Court examined
whether recording of statements through videoconferencing is permissible under Order XVIII Rules 3
and 4 of the Code of Civil Procedure and whether a power of attorney holder can depose on behalf of
the principal.

The Court held that the Code of Civil Procedure is procedural in nature and must be interpreted to
advance the cause of justice, keeping pace with technological developments. Relying upon the
decision of the Supreme Court in State of Maharashtra vs. Dr. Praful B. Desai, it was reiterated that
the expression "presence" does not necessarily mean physical presence and includes presence
through videoconferencing. The principle of updating construction, as recognised in several judicial
precedents, mandates that statutes be interpreted in light of changing social conditions and
technological advancements. The Court further observed that Family Courts are expected to facilitate
speedy justice and that insisting on physical presence of a party residing abroad would result in
unnecessary hardship, delay, and increased litigation costs.
430 INDIAN LAW REPORTS ALLAHABAD SERIES

The Court further held that under Section 13B(2) of the Hindu Marriage Act, the phrase "after hearing
the parties" does not invariably require personal physical examination of both parties, particularly
where there are no suspicious circumstances and the consent is clear and unequivocal. The Court may
act upon affidavits or statements recorded through electronic means, provided the free will and
consent of the parties is duly ascertained.

On the issue of power of attorney, the Court held that a duly authorised power of attorney holder is
competent to depose and lead evidence on behalf of the principal, though not to argue the case.
Reference was made to Section 2 of the Powers of Attorney Act, 1882 and Section 18 of the Indian
Evidence Act, 1872 to hold that evidence may be given through an agent and that such testimony is
subject to cross-examination.

In view of the above, the High Court found the impugned order to be legally unsustainable and set it
aside. The petition was allowed with a direction to the Family Court to proceed with the matter by
recording the applicant's consent through videoconferencing or electronic means, the expenses for
which were to be borne by the applicant. No order as to costs was passed.

List of Case Laws Cited -

## Text

3 All. Smt. Shilpa Chaudhary Vs Principal Judge & Anr.
429

21. Subject to the above, the writ petition is dismissed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Matters Under Article 227 No.- 1107 of 2016

Smt. Shilpa Chaudhary ...Petitioner
Versus
Principal Judge & Anr. ...Respondents

Counsel for the Petitioner:
Anil Kumar Rai,Akchita Rai,Durgesh Kumar Singh

Counsel for the Respondents:

Held-

The applicant and the respondent were married on 20 November 2010 according to Hindu rites and
customs. Owing to matrimonial discord, the parties jointly filed a petition under Section 13B of the
Hindu Marriage Act, 1955 before the Family Court, Muzaffarnagar, seeking divorce by mutual consent,
registered as Case No. 1149 of 2014. Due to repeated adjournments and the applicant's relocation to
Boston, USA for professional reasons, the matter could not be taken up. The applicant executed a
power of attorney in favour of her mother to pursue the proceedings and to enter into a compromise.
An application seeking disposal of the case was filed, which was rejected by the Family Court vide
order dated 17 December 2015 on the ground that marriage could not be dissolved on affidavit alone
and that personal presence of both parties was mandatory, further observing that electronic modes of
interaction could not be adopted.

Challenging the said order under Article 227 of the Constitution of India, the applicant contended that
there was no possibility of reconciliation and that the Family Court ought to have recorded her consent
either through videoconferencing or through her power of attorney holder. The High Court examined
whether recording of statements through videoconferencing is permissible under Order XVIII Rules 3
and 4 of the Code of Civil Procedure and whether a power of attorney holder can depose on behalf of
the principal.

The Court held that the Code of Civil Procedure is procedural in nature and must be interpreted to
advance the cause of justice, keeping pace with technological developments. Relying upon the
decision of the Supreme Court in State of Maharashtra vs. Dr. Praful B. Desai, it was reiterated that
the expression "presence" does not necessarily mean physical presence and includes presence
through videoconferencing. The principle of updating construction, as recognised in several judicial
precedents, mandates that statutes be interpreted in light of changing social conditions and
technological advancements. The Court further observed that Family Courts are expected to facilitate
speedy justice and that insisting on physical presence of a party residing abroad would result in
unnecessary hardship, delay, and increased litigation costs.
430 INDIAN LAW REPORTS ALLAHABAD SERIES

The Court further held that under Section 13B(2) of the Hindu Marriage Act, the phrase "after hearing
the parties" does not invariably require personal physical examination of both parties, particularly
where there are no suspicious circumstances and the consent is clear and unequivocal. The Court may
act upon affidavits or statements recorded through electronic means, provided the free will and
consent of the parties is duly ascertained.

On the issue of power of attorney, the Court held that a duly authorised power of attorney holder is
competent to depose and lead evidence on behalf of the principal, though not to argue the case.
Reference was made to Section 2 of the Powers of Attorney Act, 1882 and Section 18 of the Indian
Evidence Act, 1872 to hold that evidence may be given through an agent and that such testimony is
subject to cross-examination.

In view of the above, the High Court found the impugned order to be legally unsustainable and set it
aside. The petition was allowed with a direction to the Family Court to proceed with the matter by
recording the applicant's consent through videoconferencing or electronic means, the expenses for
which were to be borne by the applicant. No order as to costs was passed.

List of Case Laws Cited -

1. State of Maharashtra vs. Dr. Praful B. Desai
AIR 2003 SC 2053 / (2003) 4 SCC 601

2.National Textile Workers' Union vs. P.R. Ramakrishnan
(1983) 1 SCC 228

3.State vs. S.J. Choudhary
(1996) 2 SCC 428

4.SIL Import, USA vs. Exim Aides Silk Exporters
(1999) 4 SCC 567

5.Basavaraj R. Patil vs. State of Karnataka
(2000) 8 SCC 740

6.Tuncay Aluncas vs. Central Bureau of Investigation
(2005) 3 AD (Delhi) 682

7.Milano Impex Pvt. Ltd. Vs. Egle Footwear Pvt. Ltd.
(2012) 188 DLT 202

8.Amitabh Bagchi vs. Ena Bagchi
AIR 2005 Cal 11

9.Twentieth Century Fox Film Corporation vs. N.R.I. Film Production Associates (P) Ltd.
AIR 2003 Karnataka 148

(Delivered by Hon'ble Suneet Kumar, J.)

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,
3 All. Smt. Shilpa Chaudhary Vs Principal Judge & Anr.
431
seeking divorce on mutual consent. The petition being Case No. 1149 of 2014 (Smt. Shilpa
Chaudhary vs. 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
parivi 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 sub-section (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
432 INDIAN LAW REPORTS ALLAHABAD SERIES
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 vs. Dr. Praful B. Desai3 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, interpretted 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 vs. P.R. Ramakrishnan4 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
fastchanging society and not lag behind".

11. The principle of updating construction, has been approved in number of decisions;
State vs. S.J. Choudhary5, SIL Import, USA vs. Exim Aides Silk Exporters6.

12. In Basavaraj R. Patil vs. State of Karnataka7 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
3 All. Smt. Shilpa Chaudhary Vs Principal Judge & Anr.
433
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 ease 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 vs. Central Bureau of
Investigation8, Milano Impex Private Ltd. Vs. Egle Footwear Pvt. Limited9).

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.
434 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Reliance was placed on a decision rendered by Calcutta High Court in Amitabh Bagchi vs.
Ena Bagchi10 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 vs. N.R.I. Film
Production Associates (P) Limited11 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?
3 All. Harish Chandra Verma Vs State Of U.P. & Ors.
435

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.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.03.2016

BEFORE

THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J.

Special Appeal No.- 27 of 2015

Harish Chandra Verma ...Appellant
Versus
State Of U.P. & Ors. ...Respondents