# SANTHINI v. VIJAYA VENKETESH

- **Citation:** [2017] 12 S.C.R. 557
- **Court:** Supreme Court of India
- **Decided:** 2017-10-09
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/santhini-v-vijaya-venketesh-31734
- **Pages:** 87

## Headnote

Family Law - Matrimonial dispute - Video conferencing -
Permissibility - In view of the scheme of the 1984 Act and in
particular s. ll, the hearing of matrimonial disputes may have to be
conducted in camera - Once a settlement fails and if both the parties
give consent that a witness can be examined in video conferencing,
A
B
c
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
D
for video coriferencing - That much of discretion 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,
as a safeguard, a joint application should be filed before the F amity
Court Judge, who shall take a decision - However, in a transfer
petition, no direction can be issued for video conferencing - 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 video conferencing -
These directions shall apply prospectively- Fami(y Courts Act, 1984
- s.11 - Constitution of India - Art.139A(2) - Transfer Petition.
(Dipak Misra, CJ! for himself and for A.M Khanwilkm; .!.)
Family Courts Act, 1984 -
s.11 - Jn camera proceedings -
Importance of - Whether rights of woman would scuttle when
matrimonial disputes are conducted through video conferencing -
Held: The "constitutional identity", "freedom of choice", "dignity
of a woman" and "affirmative rights conferred on woman by the
Constitution" cannot be allowed to be abrogated even for a moment
- s.11 of 1984 Act mandates the proceedings to be held in camera if
one of the parties so desires - Equality_of choice has been conferred
557
E
F
G
558
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 12 S.C.R.
by the statute - That apart, s.22 of the 1955 Act lays down the
proceedings to be held in camera and any matter in relation to any
such proceeding may not be printed or published except a judgment
of the High Court or of the Supreme Court with the previous
permission of the Court - The expression of desire by the wife or
the husband is whittled down and smothered if the Court directs
that the proceedings shall be conducted through the use of video
conferencing - To say that if one party makes the request, the
proceedings may be conducted by video conferencing mode, would
be contrary to the language employed under .d I of the 1984 Act -
The said provision is in consonance with the constitutional provision
which confer affirmative rights on women that cannot be negatived
by the Court- Hindu Marriage Act, 1955 - s.22. (Dipak Misra, CJ!
for himself and for A.M. Khanwilka1; J.)
Family Courts Act, 1984 -
s.11 - In camera proceedings -
Gender equality - s.11 provides that if one of the parties desires
that the proceedings should be held in camera, the Family Court
has no option but to so direct - Such a sanctified right cannot be
taken away by courts which law recognizes either for the wife or
the husband.(Dipak Misra,
CJ! for himself and for
A. M. Khanwilkm; J.)
F amity Courts Act, 1984 -
s.11 - Role/duties of Family Court
Judge -
The Family Court Judge is expected to be absolutely
sensitive and has to take stock of the situation and can suo motu
hold the proceedings in camera - The Family Court Judge is only
meant to deal with the controversies and disputes as provided under
the 1984 Act - He is not to be given any other assignment by the
High Court - The in camera proceedings stand in contradistinction
to a proceeding which is tried in court - When a case is tried or
heard in court, there is absolute transparenGy - Having regard to
the nature of the controversy and the sensitivity of the matter, it is
desirable to hear in court various types of issues that crop up in
these types of liti

## Text

_Characters 0–39,774 of 203,890. This is a partial read: ask again with offset=39774 for what follows._

[2017] 12 S.C.R. 557
SANTHINI
v.
VIJAYA VENKETESH
(Transfer Petition (Civil) No. 1278of2016)
OCTOBER 09, 2017
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Family Law - Matrimonial dispute - Video conferencing -
Permissibility - In view of the scheme of the 1984 Act and in
particular s. ll, the hearing of matrimonial disputes may have to be
conducted in camera - Once a settlement fails and if both the parties
give consent that a witness can be examined in video conferencing,
A
B
c
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
D
for video coriferencing - That much of discretion 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,
as a safeguard, a joint application should be filed before the F amity
Court Judge, who shall take a decision - However, in a transfer
petition, no direction can be issued for video conferencing - 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 video conferencing -
These directions shall apply prospectively- Fami(y Courts Act, 1984
- s.11 - Constitution of India - Art.139A(2) - Transfer Petition.
(Dipak Misra, CJ! for himself and for A.M Khanwilkm; .!.)
Family Courts Act, 1984 -
s.11 - Jn camera proceedings -
Importance of - Whether rights of woman would scuttle when
matrimonial disputes are conducted through video conferencing -
Held: The "constitutional identity", "freedom of choice", "dignity
of a woman" and "affirmative rights conferred on woman by the
Constitution" cannot be allowed to be abrogated even for a moment
- s.11 of 1984 Act mandates the proceedings to be held in camera if
one of the parties so desires - Equality_of choice has been conferred
557
E
F
G
558
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 12 S.C.R.
by the statute - That apart, s.22 of the 1955 Act lays down the
proceedings to be held in camera and any matter in relation to any
such proceeding may not be printed or published except a judgment
of the High Court or of the Supreme Court with the previous
permission of the Court - The expression of desire by the wife or
the husband is whittled down and smothered if the Court directs
that the proceedings shall be conducted through the use of video
conferencing - To say that if one party makes the request, the
proceedings may be conducted by video conferencing mode, would
be contrary to the language employed under .d I of the 1984 Act -
The said provision is in consonance with the constitutional provision
which confer affirmative rights on women that cannot be negatived
by the Court- Hindu Marriage Act, 1955 - s.22. (Dipak Misra, CJ!
for himself and for A.M. Khanwilka1; J.)
Family Courts Act, 1984 -
s.11 - In camera proceedings -
Gender equality - s.11 provides that if one of the parties desires
that the proceedings should be held in camera, the Family Court
has no option but to so direct - Such a sanctified right cannot be
taken away by courts which law recognizes either for the wife or
the husband.(Dipak Misra,
CJ! for himself and for
A. M. Khanwilkm; J.)
F amity Courts Act, 1984 -
s.11 - Role/duties of Family Court
Judge -
The Family Court Judge is expected to be absolutely
sensitive and has to take stock of the situation and can suo motu
hold the proceedings in camera - The Family Court Judge is only
meant to deal with the controversies and disputes as provided under
the 1984 Act - He is not to be given any other assignment by the
High Court - The in camera proceedings stand in contradistinction
to a proceeding which is tried in court - When a case is tried or
heard in court, there is absolute transparenGy - Having regard to
the nature of the controversy and the sensitivity of the matter, it is
desirable to hear in court various types of issues that crop up in
these types of litigations - A Family Court Judge has to be very
sensitive to the cause before it and he/she should be conscious about
timely delineation and not procrastinate the matter as delay has the
potentiality to breed bitterness that eventually corrodes the emotions
- The Court has been extremely cautious while stating about patience
as a needed quality for ar~iving at a settlement and the need for
SANTHINI v. VUAYA VENKETESH
559
speedy settlement and, if not possible, proceeding with meaningful
A
adjudication - There must be efforts for reconciliatidn - The
legislative intendment is for speedy settlement - The confidentiality
of the proceedings is imperative for these proceedings.
(Dipak Misra, CJ! for himself and for A.M Khanwilkar, J.)
Family Courts Act, 1984 -
s.11 - Video conferencing, when
only one party gives consent, permissibility - Held: The procedure
B
of video conferencing which is to be adopted when one party gives
consent is contrary to s.11 of the 1984 Act - There is no provision
that the matter can be dealt with by the Fami~v Court Judge by
taking recourse to video conferencing - When a matter is not
transferred and settlement proceedings take place which is in the
C
nature of reconciliation, it will be well nigh impossible to bridge the
gap - What one party can communicate with other, if they are left
alone for sometime, is not possible in video conferencing and if
possible, it is ve1y doubtful whether the emotional bond can be
established in a virtual meeting during video conferencing - Video
conferencing may create a dent in the process of settlement - The
statuto1y right of a woman cannot be nullified by taking route to
technological advancement and destroying her right under a law,
more so, when it relates to family matters - Dignity of women is
sustained and put on a higher pedestal if her choice is respected -
That will be in consonance with Art.15(3) of the Constitution.
(Dipak Misra, CJ! for himself and for A.M Khanwilkar, J.)
D
E
Family Courts Act, 1984 - Legislative purpose behind the
Family Courts Act- The Act aims to promote conciliation and secure
speedy settlement of disputes relating to marriage and family affairs
and for matters connected therewith. (Dipak Misra, CJ! for himself F
and for A.M Khanwilkm; J.)
Hindu Marriage Act, 1955 - s.23(2) - Settlement or
reconciliation - Duty of Family Court to make efforts for settlement
- s.23(2) of the 1955 Act mandates for reconciliation - The language
used under s.23(2) makes it an obligato1y du~v on the part of the
court at the first instance in every case where it is possible, to make
every endeavour to bring about reconciliation between the parties
where it is possible to do so consistent with the nature and
circumstances of the case. (Dipak Misra, CJ! for himself and for
A.M. Khanwilkar, J.)
•
G
H
560
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 12 S.C.R.
Hindu Marriage Act, 1955 - s.23(2) - Reconciliation -
Presence of parties, necessity of - The reconciliation requires
presence of both the parties at the same place and the same time so
as to be effectively conducted - The spatial distance will distant the
possibility of reconciliation because the Family Court Judge would
not be in a position to interact with the parties in the manner as the
law commands - By virwe of the nature of the controversy, it has its
inherent sensitivity- The Judge is expected to deal with care, caution
and with immense sense of worldly experience absolutely being
conscious of social sensibility - This commands a sense of trust
and maintaining an atmosphere of co1?fidence and also requirement
of assurance that the confidentiality is in no way averted or done
away with - There can be no denial of this fact - It is sanguinely
private. (Dipak Misra, CJ! for himself and for A.M. Khanwilkw; J)
DISSENTING VIEW:
Family Law - Matrimonial disputes - Access to justice - Use
of video conferencing -
Application of lechnology to facilitate the
judicial process - The Family Courts Act, 1984 was enacted at a
point in time when modern technology was not fully developed -
That would not be a reason for any court to exclude the application
of technology Jo facilitate the judicial process - Appropriate
deployment of technology facilitates access to justice - Litigation
under the Family Courts Act 1984 is not an exception to this
principle -- Whether video conferencing should be allowed in a
particular family dispute before the Family Court, the stage at which
it should be allowed and the safeguards which should be followed
should best be left to the High Co11rts while framing rules on the
subject - Subject to such rnles, the use of video co1?ferencing must
he left to the careful exercise of discretion of the Family Court in
each case. (Dr. D. Y. Chandrachud, J.)
Family Law - Matrimonial disputes - Access to justice -
Prayer for video conferencing - Consent of parties, requirement -
G Held: To deprive parties of the benefit of video c01iferencing will
result in a denial of access to justice- Nor can recourse to technology
be conditioned on the consent of both spo11ses f01; 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.
H
(D1: D. Y. Chandrachud, J.)
SANTHINI v. VUAYA VENKETESH
Family Courts Act, 1984 - s)l - Video conferencing - An
in-camera trial is contemplated under s.11 in two situations: first
where the Family Court so desires; and second if either of the parties
so desires - There is a fallacy in the hypothesis that an in-camera
trial is inconsistent with the usage of video conferencing techniques
- A trial in-camera postulates the exclusion of the public from the
courtroom and allows for restraints on public reporting - Video
conferencing does not have to be recorded nor is it accessible to
the press or the public - The proper adoption of video conferencing
does not negate the postulates of an in-camera trial even if such a
trial is required by the court or by one of the parties under s.11.
(Dr. D. Y. Chandrachud, J.)
Family Courts Act, 1984 -
ss.10(3), II - Use of technology
561
A
B
c
in settlement process - Video conferencing - Family Courts Act
envisages an active role for the Family Court to foster settlements -
Under the provisions of s.11, the Family Court has to endeavour to
"assist and persuade" parties to arrive at a settlement - In the
D
process of settlement, s.10(3) enables the Family Court to lay down
its own procedure - The Family Court is entitled to take the benefit
of counsellors, medical experts and persons professionally engaged
in promoting the welfare of the family - These provisions - far from
excluding the use of video conferencing - are sufficiently enabling
to allow the F amity Court to utilise technological advances to
facilitate the purpose of achieving justice in resolvingfami(v conflicts
- There may arise a variety of situations ·where in today'.~ age and
time parties are unable to come face to face for counselling or can
do so only at such expense, delay or hard~hip which will defeat
justice - It would be inappropriate to deprive the Family Court
which is vested with such wide powers and procedural flexibility to
adopt video conferencing as a fi1cilitative tool, where it is convenient
and readily available - Whether video conferencing should be
allowed mus/ be determined on a case to case analysis to best
effectuate the concern of providing just solutions - Far from such
a procedure being excluded by the law, it will sub serve the purpose
of the law -
Video conferencing allows things to be resolved from
the safety of a place which is not accessible to the other spouse
against whom there is a serious allegation of misbehaviour of a
psychiatric nature or in a case of substance abuse.
(Dr. D. Y. Chandrachud. J.)
E
F
G
H
562
SUPREME COURT REPORTS
[2017] 12 S.C.R.
A
Family Courts Act, 1984 -
s.11 - Video conferencing- Video
B
conferencing is gender neutral - In fact it ensures that one of the
spouses cannot procrastinate and delay the conclusion of the trial
- Delay generally defeats the cause of a party which is not the
dominant partner in a relationship - Imposing an unwavering
requirement of personal and physical presence (and exclusion of
facilitative technological tools such as video conferencing) will
result in a denial of justice - Constitution of India - Art.14 -
Administration of justice. (Dr. D. Y. Chandrachud, J.)
Family Courts Act, 1984 - s.11 - Video conferencing -
Exclusion of video conferencing in the settlement process - The
C proposition that video conferencing can be permitted only after the
conclusion of settlement proceedings (resultantly excluding it in the
settlement process), and thereafter only when both parties agree to
it does not accord either with the purpose or the provisions of the
Family Co11rts Act 1984 - Exclusion of video conferencing in the
D
settlement process is not mandated either expressly or by necessary
impl(cation by the legislation - On the contrary the legislation has
enabling provisions which are sufficiently broad to allow video
conferencing - Confining it to the stage after the settlement process
and in a situation where both parties have agreed will seriously
impede access to justice - It will render the Family Court helpless
E
to deal with human sit11ations which merit flexible solutions.
(Dr. D. Y. Chandrachud, J.)
F
G
H
Family Courts Act, 1984 -
s.11 - Video conferencing -
Footage of Video conferencing, fear of misuse - The premise that
''the footage in video conferencing becomes part of the record'' is
incorrect - It does not necessarily become a part of the record -
Discussions relayed through video confere11ci11g in the course of
settleme11t will of course 11ot be recorded - s. 10(3) of the 1984 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 - This provision gives the Family Court ample powers
to use video conferencing in matrimonial disputes, where
· appropriate. (D1: D. Y. Chandrachud, J.)
F amity Courts Act, 1984 - s. ll - Video conferencing - Misuse,
apprehension of - Video conferencing and in-camera proceedings
are not irreconciliable - Video conferencing. in itself, is a private
interaction - It does not involve third perso11s or spectators apart
SANTHINI v. VDAYA VENKETESH
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
s.11, which is to maintain privacy - The same level of privacy that
563
A
is afforded to parties during in-camera proceedings which take
place in the same physical space, can be maintained over the virtual
space of video conferencing - Technology also allows to ensure
that there is 110 record of the conversation which took place through
video conferencing, once the conversation is over - Technology
provides flexibility - Discussions across an audio-visual link in the
course of counselling or conciliation will not be recorded so as to
maintain privacy and intimate confidences - On the other hand,
where in the course of a trial, a judge requires that a record of the
deposition be maintained, technology will facilitate it -
Even· if a
video conference is recorded for this purpose, the records can be
destroyed after the judgment is delivered or once the purpose of D
recording
by
the
judge
has
been
served.
B
c
(Dr. D. Y. Chandrachud, J.)
Video conferencing -
Importance of -
Held: Video
conferencing must be in the interest of justice, - Video conferencing
facilities allow parties to communicate with each other in situations
where it would bl! expensive, inconvenient or otherwise not desirable
for a person to attend the court procedure - Given the delays in
judicial proceedings, which are ojien due to the wilful
procrastination of one of the parties, video conferencing serves the
purpose of safeguarding the interests ofjustice by preventing undue
delay - The massive pendency of cases in India and issues related
to access to justice will require a careful deployment of appropriate
technologies. (Dr. D. Y. Chandrachud, J.)
Foreign jurisprudence - Video conferencing - With the
advancement of teclinology, many countries have applied video
conferencing
in
matrimonial
proceedings.
(Dr. D. Y. Chandrachud, J.)
In Krishna Veni Nigam case, a two-Judge Bench of Supreme
Court while dealing with. transfer petition seeking transfer of
divorce matter from Family Court Jabalpur to Family Court
Hyderabad took note of grounds of transfer and the approach of
E
F
G
the Courts to normally allow the transfer of proceedings keeping
H
564
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017) 12 S.C.R.
in view convenience of the wife expressed concern for difficulties
faced by litigants travelling to Supreme Court and posed the
question whether there was possibility to avoid the same. The
question formulated therein was whether the court should
entertain such transfer petition only on the condition that the
husband makes appropriate deposit to bear the expenses of the
wife as may be determined by the Court so that the wife is not
handicapped to defend the proceedings. The pivotal concern of
the Court was whether an order could be passed so as to provide
a better alternative to each individual who is compelled to move
Supreme Court. The Court made certain references to the
doctrine of 'forum non conveniens' and held that it can be applied
to matrimonial proceedings for advancing the interest of justice.
The Court further observed that if the proceedings are transferred
to place which is convenient to the woman, the problem which
are then faced by the husband cannot be ignored and thus, transfer
is not always a solution acceptable to both the parties. The Court
further noted that it may be appropriate that available technology
of video conferencing is used where both parties h.ave equal
difficulty and there is no place which is convenient to both the
parties.
The Krishna Veni Nigam case was brought to the notice of
the two-Judge Bench in the instant case titled Santlti11i v. Vijaya
Venketesh. The two-Judge Bench held that to what an extent the
confidence and confidentiality will be safeguarded and protected
in video conferencing, particularly when efforts are taken by the
counsellors, welfare experts, and for that matter, the court itself
for reconciliation, restitution of conjugal rights or dissolution of
marriage, ascertainment of the wishes of the child in custody
matters, etc., is a serious issue to be considered; that it is certainly
difficult in video conferencing to maintain confidentiality; that
footage in video conferencing becomes part of the record whereas
the reconciliatory efforts taken by the duty-holders are not meant
to be part of the record. The two-Judge Bench held that the
directions issued by the Court in Krishna Veni Nagam case needed
reconsideration on the aspect of video conferencing in
matrimonial disputes. The matter was referred to larger bench
and that is how matter was placed before this three-Judge Bench.
SANTHINI v. VUAYA VENKETESH
Answering the reference, the Court
HELD:
Per Dipak Misra, CJI (For himself and Khanwilkar, J.)
1. The Supreme Court has been conferred with the power
by the Constitution under Article 139A(2) to transfer the cases
and has also been conferred statutory jurisdiction to transfer the
cases. The Court has the power to allow the petition seeking
transfer. or to decline the prayer and indubitably, it is on
consideration of the merits of the case and satisfaction of the
Court on that score. [Para 10](591-F-G]
2.1 Legislative purpose behind Family Courts Act, 1984:
The preamble of the 1984 Act provides for the establishment of
Family Courts with a view to promote conciliation in, and secure
speedy settlement of disputes relating to marriage and family
affairs and for matters connected therewith. [Para 12][594-D]
2.2 Role of Family Court .Judge: A Family Court Judge has
565
A
B
c
D
to be very sensitive to the cause before it and he/she should be
conscious about timely delineation and not procrastinate the
matter as delay has the potentiality to breed bitterness that
eventually corrodes the emotions. The Court has been extremely
cautious while stating about patience as a needed quality for
E
arriving at a settlement and the need for speedy settlement and,
if not possible, proceeding with meaningful adjudication. There
must be efforts for reconciliation, but the time spent in the said
process has to have its own limitation. The legislative intent, the
schematic purpose and the role attributed to the Family Court
have to be perceived with a sense of sanctity. [Paras 14, 16](595E-F; 596-E-F]
Bhuwan Mohan Singh v. Meena and others (2015) 6
SCC 353 : [2014) 8 SCR 858 - relied on.
F
K.A. Abdul Jaleel v. T.A. Shahida (2003) 4 SCC 166 :
G
[2003] 3 SCR 498; Shamima Farooqui v. Shahid Khan
(2015) 5 sec 705 - referred to.
2.3 Fundamental intent of scheme of the 1984 Act: The
1984 Act, to achieve its purpose, conceives of involvement of
institutions or organizations engaged in social welfare or their H
566
SUPREME COURT REPORTS
(2017) 12 S.C.R.
A representatives and professionals engaged in promoting the
welfare of the family so that, if required, the Family Court can
take their assistance to exercise its jurisdiction in an effective
manner. (Para 17) [596-G-H; 597-A-B)
B
2.3 Jurisdiction of Family Court: The jurisdiction conferred
on the Family Court is quite extensive. It confers power in a
Family Court to exercise jurisdiction exercisable by any district
court or any subordinate civil court under any law relating to a
suit or a proceeding between the parties to a marriage or a decree
of a nullity of marriage declaring the marriage to be null and void
or annulling the marriage, as the case may be, or restitution of
C conjugal rights or judicial separation or dissolution of marriage
and also the power to entertain a proceeding with respect to the
property of the parties to a marriage or either of them. The Family
Court has the jurisdiction to pass an order or injunction in
D
E
F
circumstances arising out of a marital relationship, declare
legitimacy of any person and deal with proceedings for grant of
maintenance, guardianship of the person or the custody of or
access to any minor. That apart, it has also been conferred the
authority to deal with the applications for grant of maintenance
for wife and children and parents as provided under the CrPC.
Section 9 prescribes the duty of the Family Court to make efforts
for settlement by rendering assistance and persuading the parties
for arriving at a settlement in respect of the subject matter of the
suit or proceeding. For the said purpose, it may follow the
procedure laid down by the High Court. If in any suit or
proceeding, at any stage, it appears to the Family Court that there
is a reasonable opportunity of settlement between the parties, it
may adjourn the proceedings for such period as it thinks fit to
enable attempts to be made to effect such a settlement. [Paras
18, 19)(597-C-H]
3.1 Section 11 provides for proceedings to be held in
G camera. A plain reading of Section 11 shows that if the Family
Court desires, the proceedings should be held in camera and it
shall be so held if either of the parties so desires. A reading of
the said provision indicates that, once one party makes a prayer
for holding the proceedings in camera, it is obligatory on the part
of the Family Court to do so. (Para 20)(598-A-C]
H
SANTHINI v. VIJAYA VENKETESH
567
3.2 Section 22 of the Hindu Marriage Act, 1955 provides A
for proceedings to be in camera and stipulates that the proceeding
may not be printed or published. Section 23(2) of the 1955 Act
enjoins that before proceeding to grant any relief under this Act,
it shall be the duty of the court in the first instance, in every case
where it is possible to do so consistently with the nature and B
circumstances of the case, to make every endeavour to bring
about a reconciliation between the parties. The said provision is
not applicable to any proceeding wherein relief is sought on any
of the grounds specified in clause (ii), (iii), (iv), (v), (vi) or (vii) of
sub-section (1) of Section 13. Sub-section (3) of Section 23 permits
the Court to take aid of a person named by the parties or of any
C
person nominated by the Court to bring out a resolution. [Paras
22, 23J(598-D-H; 599-A]
3.3 Section 26 of the 1955 Act deals with custody of children.
It empowers the court, from time to time, to pass such interim
orders and make such provisions in the decree as it may deem
D
just and proper with respect to the custody, maintenance and
education of minor children consistently with their wishes, ·
.wherever possible. In a matter relating to the custody of the child,
the welfare of the child is paramount and seminal. The interest
of the child in all circumstances remains vital and the Court has a
very affirmative role in that regard. [Paras 24-25] [599-B, E]
Malthesh Gudda Pooja v. State of Karnataka (2011)
15 SCC 330 : [2011] 11 SCR 870 - distinguished
Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7
SCC 673 : [2008] 8 SCR 260; Rosy Jacob v. Jacob A.
Chakramakkal (1973) 1 SCC 840 : [1973] 3 SCR 918;
Vikram Vir Vohra v. Shalini Bhalla (2010) 4 SCC 409 :
[2010) 3 SCR 775 - referred to.
Halsbury's Laws of England (4 1h Edn., Vol. J 3) - ·
referred to.
4.1 The "constitutional identity", "freedom of choice",
"dignity of a woman" and "affirmative rights conferred on her by
the Constitution" cannot be allowed to be abrogated even for a
moment. Section 11 of 1984 Act mandates the proceedings to. be
E
F
G
H
568
SUPREME COURT REPORTS
[2017] 12 S.C.R.
A
held in camera if one of the parties so desires. Equality of choice
has been conferred by the statute. That apart, Section 22 of the
1955 Act lays down the proceedings to be held in camera and any
matter in relation to any such proceeding may not be printed or
published except a judgment of the High Court or of the Supreme
B
Court with the previous permission of the Court. The expression
of desire by the wife or the husband is whittled down and
smothered if the Court directs that the proceedings shall be
conducted through the use of video conferencing. To say that if
one party makes the request, the proceedings may be conducted
by video conferencing mode or system would be contrary to the
C
language employed under Section 11 of the 1984 Act. The said
provision is in consonance with the constitutional provision which
confer affirmative rights on women that cannot be negatived by
the Court. [Paras 43-44)(607-F-G; 608-A-E]
D
E
F
G
H
State of Maharashtra v. Praful B. Desai (2003) 4 SCC
601 : (2003] 3 SCR 244; Kalyan Chandra Sarkar v.
Rajesh Ranjan (2005) 3 SCC 284; Budhadev
Karmaskar (4) v. State of W.B. (2011) 10 SCC 283 :
[2011] 10 SCR 577; Mackinnon Mackenzie & Co. Ltd
v. Audrey D'costa and another (1987) 2 SCC 469 :
(1987] 2 SCR 659; Vishaka and others v. State of
Rajasthan and others (1997) 6 SCC 241 : [1997] 3
Suppl. SCR 404; Anin Kumar Agrawal and another v.
National Insurance Company Limited and others (2010)
9 'sec 218 : [2010] 9 SCR 303; Voluntary Health
Association of Punjab v. Union of India and others
(2013) 4 SCC 1 : (2013] 5 SCR 111; State of H.P. v.
Nikku Ram (1995) 6 SCC 219 : (1995] 3 Suppl. SCR
177; MC. Mehta v. State of T.N. (1996) 6 SCC 756 :
[1996] 9 Suppl. SCR 726; Charu Khurana and others
v. Union of India and others (2015) 1 SCC 192 : (2014]
12 SCR 259; Voluntary Health Association of Punjab
v. Union of India .and Ors (2016) 10 SCC 265 : [2016]
8 SCR 192; Vikas Yadav v. State of Uttar Pradesh and
others (2016) 9 SCC 541 : [2016] 8 SCR 872; Lata
Singh v. State of U.P. (2006) 5 SCC 475 : [2006) 3
Suppl. SCR 350; Maya Kaur Baldevsingh Sardar v.
SANTHINI v. VIJAYA VENKETESH
569
State of Maharashtra (2007) 12 SCC 654 : [2007] 10
A
SCR 752 -
referred to.
5.2 Section 11 of the 1984 Act provides that if one of the
parties desires that the proceedings should be held in camera,
the Family Court has no option but to so direct. This Court, in
exercise of its jurisdiction, cannot take away such a sanctified
right that law recognizes either for the wife or the husband. That
apart, the Family Court has the duty to make efforts for
settlement. Section 23(2) of the 1955 Act mandates for
reconciliation. The language used under Section 23(2) makes it
B
an obligatory duty on the part of the court at the first instance in
every case where it is possible, to make every endeavour to bring C
about reconciliation between the parties where it is possible to
do so consistent with the nature and circumstances of the case.
There arc certain exceptions carved out by the legislature as
has been enumerated in the proviso which pertain to incurably of
unsound mind or suffering from a virulent and incurable form of D
leprosy or suffering from venereal disease in a communicable
form or has renounced the world by entering any religious order
or has not been heard of as being alive for a period of seven
years, etc. The Court has to play a diligent and effective role in
this regard. [Para 45][608-F-H; 609-A-B]
5.3 The reconciliation rcq uircs presence of both the parties
E
F
at the same place and the same time so as to be effectively
conducted. The spatial distance will distant the possibility of
reconciliation because the Family Court Judge would not be in a
position t.o interact with the parties in the manner as the law
commands. By virtue of the nature of the controversy, it has its
inherent sensitivity. The Judge is expected to deal with care,
caution and with immense sense of worldly experience absolutely
being conscious of social sensibility. This commands a sense of
trust and maintaining an atmosphere of confidence and also
requirement of assurance that the confidentiality is in no way
G
averted or done away with. There can be no denial of this fact. It
is sanguinely private. [Para 46][609-B-D]
Justice K.S. Puttaswamy (Rtd) v. Union of India & others
(2017) 10 SCALE 1 - referred to.
H
570
SUPREME COURT REPORTS
[2017] 12 S.C.R.
A
Schulte Co. v. Gangi 328 U.S. 108, 121-122 (1946);
Hopkins Savings Assn. v. Cleary 296 U.S. 315, 334
(1935) - referred to.
6.1
The procedure of video conferencing which is to be
adopted when one party gives consent is contrary to Section 11
B
of the 1984 Act. There is no provision that the matter can be
dealt with by the Family Court Judge by taking recourse to video
conferencing. When a matter is not transferred and settlement
proceedings take place which is in the nature of reconciliation, it
will be well nigh impossible to bridge the gap. What one party
can communicate with other, if they are left alone for sometime,
C is not possible in video conferencing and if possible, it is very
doubtful whether the emotional bond can be established in a
virtual meeting during video conferencing. Video conferencing
may create a dent in the process of settlement. The statutory
right of a woman cannot be nullified by taking route to
D
technological advancement and destroying her right under a law,
more so, when it relates to family matters; Dignity of women is
sustained and put on a higher pedestal if her choice is respected.
That will be in consonance with Article 15(3) of the Constitution.
[Paras 49, 50][610-E-G; 611-A]
E
F
6.2 The nine-Judge Bench in Naresh Shridhar Mirajkar
case, after· enunciating the universally accepted pl"oposition in
favour of open trials expressed "the primary function of the
judiciary is to do justice between the parties who bring their
causes before it. On principle, it is difficult to accede to the
proposition that there can be no exception to the rule that all
causes must be tried in open court. If principle that all trial must
be held in public was treated as inflexible and universal and it is
held that it admits of no exceptions whatever, cases may arise
where by following the principle, justice itself may be defeated.
The principle of exception therein is founded on the centripodal
G necessity of doing justice to the cause and not to d_efeat it. In
matrimonial disputes that are covered under Section 7 of the 1984
Act where the Family Court exercises its jurisdiction, there is a
statutory protection to both the parties and conferment of power
on the court with a duty to persuade the parties to reconcile. If
the proceedings are directed to be conducted through video
H
SANTHJNI v. VDAYA VENKETESH
571
conferencing, the command of the Section as well as the spirit of A
the 1984 Act will be in peril and further the cause of justice would
be defeated". (Paras 51, 52][611-E-G; 6U-B-C]
Naresh Shridhar Mirajkar and Ors v. State of
Maharashtra and Am: AIR 1967 SC 1 : (1966) SCR
744 - followed
B
6.3 The statement of law made in Krishna Veni Nagam that
if either of the parties gives consent, the case can be transferred,
is absolutely unacceptable. However, an exception can be carved
c
out to the same. Though the principle does not flow from statutory
silence, yet it is found 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. The enactment gives
emphasis on speedy settlement. A genuine endeavour has to be
made by the Family Court Judge, but in the name of efforts to D
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, 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 video conferencing. That much of discretion
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, as a safeguard, a joint application should
E
F
be filed before the Family Court Judge, who shall take a decision.
However, in a transfer petition, no direction can be issued for
video conferencing. The discretion has to rest with the Family
Court to be exercised after the court arrives at a definite G
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 video conferencing.(Para
54)[612-E-H; 613-A-C]
Krishna Veni Nagam v. Harish Nagam (2017) 4 SCC
150 - partly overruled.
H
572
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 12 S.C.R.
Bhuwan Mohan Singh v. Meena and others (2015) 6
SCC 353 : (2014] 8 SCR 858; Anindita Das v. Srijit
Das (2006) 9 SCC 197; Mona Aresh Goel v. Aresh Satya
Goel (2000) 9 SCC 255; Lalita A. Ranga v. Ajay
Champa/al Ranga (2000) 9 SCC 355; Deepa v. Anil
Panicker (2000) 9 SCC 441; Archana Rastogi v. Rakesh
Rastogi (2000) 10 SCC 350; Leena Mukhe1jee v. Rabi
Shankar Mukhe~jee (2002) 10 SCC 480; Nee/am Bhatia
v. Satbir Singh Bhatia (2004) 13 SCC 436 : (2006) 1
sec (Cri) 323; Soma Choudhury
V.
Gourab
Choudhaury (2004) 13 SCC 462 : (2006) 1 SCC (Cri)
341; Rajesh Rani v. Tej Pal (2007) 15 SCC 597;
Vandana Sharma v. Rakesh Kumar Sharma (2008) 11
SCC 768; Anju Ohri v. Varinder Ohri (2007) 15 SCC
556; Premlata Singh v. Rita Singh (2005) 12 SCC 277;
Gana Saraswathi v. H. Raghu Prasad (2000) 10 SCC
277; Ram Gu/am PandU v. Umesh J. Prasad (2002) 10
SCC 551; Rajwinder Kaur v. Ba/winder Singh (2003)
11 sec 726 - referred to.
Per Dr. D. Y. Chandrachud, J.* (Dissenting view)
1.1. The Family Courts Act, 1984 was enacted at a point in
time when modern technology which enables persons separated
by spatial distances to communicate with each other face to face
was not the order of the day or, in any case, was not as fully
developed. That is no reason for any court - especially for this
court which sets precedent for the nation - to exclude the
application of technology to facilitate the judicial process.[Para
1] [617-B-C]
1.2 Appropriate deployment of technology facilitates access
to justice. Litigation under the Family Courts Act 1984 is not an
exception to this principle. This court must be averse to judicially
laying down a restraint on such use of technology which facilitates
G
access to justice to persons in conflict, including those involved
in conflicts within the family. Modern technology is above all a
facilitator, enabler and leveler. [Para 2][617-B-C]
H
• Hon'ble Dr. Justice D. Y. Chandrachud has delivered one judgment recording his
conclusions and another judgment indicating the reasons.
SANTHINI v. VUAYA VENKETESH
1.3 Video conferencing is a technology which allows users
in different locations to hold face to face meetings. Video
conferencing is being used extensively the world over (India being
no exception) in on line teaching, administration, meetings,
negotiation,mcdiation and telemedicine among a myriad other
uses. Video conferencing reduces cost,time, carbon footprint and
the like. [Para 1](617-E-.F]
1.4 An in-camera trial is contemplated under Section 11 in
two situations: the first where the Family Court so desires; and
the second if either of the parties so desires. There is a fallacy in
the hypothesis that an in-camera trial is inconsistent with the
usage of video conferencing techniques. A trial in-camera
postulates the exclusion of the public from the courtroom and
allows for restraints on public reporting. Video conferencing does
not have to be recorded nor is it accessible to the press or the
public. The proper adoption of video conferencing does not negate
the postulates of an in-camera trial even if such a trial is required
by the court or by one of the parties under Section 11. [Para
1)(617-GcH; 618-A)
1.5 The Family Courts Act 1984 envisages an active role
for the Family Court to foster settlements. Under the provisions
of Section 11, the Family Court has to endeavour to "assist and
persuade" parties to arrive at a settlement. Section 9 clearly
recognises a discretion in the Family Court to determine how to
structure the process. It docs so by adopting the words "where
it is possible to do so consistent with the nature and circumstances
of the case". Moreover, the High Courts can frame rules under
Section 9(1) and the Family Court may, subject to those rules,
"follow such procedure as it deems fit". In the process of
settlement, Section 10(3) enables the Family Court to lay down
its own procedure. The Family Court is entitled to take the benefit
of counsellors, medical experts and persons professionally
engaged in promoting the welfare of the family. [Para 1](618-BD]
1.6 These provisions - far from excluding the use of video
conferencing - arc sufficiently enabling to allow the Family Court
to utilise technological advances to facilitate the purpose of
achieving justice in resolving family conflicts. There may arise a
573
A
B
c
D
E
F
G
H
574
SUPREME COURT REPORTS
(2017] 12 S.C.R.
A variety of situations where in today's age and time, parties are
unable to come face to face for counselling or can do so only at
such expense, delay or hardship which will defeat justice.