For the second motion and the award of degree of divorce in mutual consent cases, do courts accept deposition via videconferencing? In particular, I am interested in knowing: 1. Whether it is up to the discretion of the court or it is well-established practice to accept deposition via videoconferencing. 2. Whether courts accept Skype over laptop/mobile provided by lawyer at family courts where videoconferencing facility is not available. Please provide citations wherever possible. So far, I have just found two and they are not conclusive Bombay High Court Mr. Mukesh Narayan Shinde vs Mrs. Palak Mukesh Shinde on 28 March, 2012 wp-2521.12 https://indiankanoon.org/doc/25195214/ Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent. the learned Judge of the Family Court shall verify and record on-line consent with the help of webcam and laptop/computer. Andhra High Court Dasam Vijay Rama Rao vs M.Sai Sri on 17 June, 2015 C.R.P.No.1621 of 2015 https://indiankanoon.org/doc/123683887/ if one of the parties, like in the present case, appears before the Family court and expresses no objection for 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 move/application. 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.
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1) is well-established practice to accept deposition via video conferencing.at least in Bombay
2) family court accept skype over laptop provided by lawyer
3) in 2 of my recent cases my client is staying abroad
4) court has accepted deposition via skype over laptop for confirmation of the mutual consent
article in hindu 2nd December 2014
The Madras High Court’s prior permission is not required to record evidence through video-conference by Family Courts as the discretion was vested with the latter to use the facility, the court has said.
The First Bench, comprising Chief Justice S.K. Kaul and Justice M. Sathyanarayanan, passed the order on a public interest litigation petition by Sudha Ramalingam, an advocate.
The petitioner sought a direction to the court Registrar-General and the State Law Secretary to frame viable rules for appearance of parties through their power of attorneys and video-conference before the Family Courts in the State.
The petitioner said people who lived outside the State or country due to their avocation or other purposes, appeared through power of attorney or video-conference as they could not attend the Family courts in person.
Of late, the Family Courts were reluctant to allow appearance through power holders and also record evidence through video-conference. They expressed their reluctance because the High Court did not permit video-conference appearance due to impersonation in a couple of cases. The judges were not permitting video-conferencing even for cases where parties were seeking divorce by mutual consent. Thus a fair trial process was being denied.
The Bench said the High Court had already observed that there was no legal impediment to grant permission for parties to be represented by power holders, especially when they were residing abroad and having children to look after.
As regards video-conferencing, the High Court had not issued any circular that prior permission should be obtained through the Registrar-General for using the facility. Besides, a Family Court was empowered to lay down its own procedure and arrive at a settlement or to get at the truth of the matter. This being so, it was not possible to issue any general direction in the matter, the Bench said and disposed of the petition.
1. Deposition in and within the personal sight of the court is the norm, whereas to allow one to do so through video conferencing is an exception. The courts do not allow anybody to depose through video conferencing except if he is physically incapacitated to come to the court.
2. The citation of Andhra HC is an exceptional judgment which ignores the law laid down by the Supreme Court in earlier cases. Hence, it may not be followed by the courts in Andhra, let alone courts in other parts of India.
3. You have to come to the court to depose.
In absence of any firm decision from the supreme court , the courts in other states does not follow these decisions as those are not binding on them.
So you can say that in other states online recording of statements for mutual divorce is not accepted as yet.
In India, the provision for in camera proceedings are given in S. 11 of theFCA, 1984 so that there is no ambiguity to prevent the parties from seeking video conferencing option in Family Courts. O 32 / R 2 CPC, 1908 also allows for proceedings to be held in camera.Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent.Despite the practical and infrastructural difficulties of arranging a video conference connecting people in different time zones, the courts have shown a willingness to schedule hearings to accommodate the unusual timings.
if one of the parties, appears before the Family court and expresses no objection for 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 move/application. So file an application for the same through counsel
Hi,
1. it is the discretion of the court to agree for a video conferencing, it is not a common practice for ones choice.
2.Yes video conferencing is allowed with the permission of the court.
3. it is the discretion of the court ,most often when a party convince the court, the courts agree to it.
Mr. Davessar, Could you please specify, in which cases Supreme Court has laid down the law that "physical presence" of the party is required? Please provide citations. I hope you will not quote Smruti Pahariya vs Sanjay Pahariya on 11 May, 2009 - I have seen some lawyers try to use this to prove that Supreme Court has said physical presence is required. In reality there is nothing in the case or Supreme Court's decision on it that would indicate anything of that sort. The defendant in this case was unwilling to be present in the court at all - no Power of Attorney, no videoconferencing, nothing. All the Supreme Court said was that to ascertain acceptance, presence is needed. Anyone who interprets the case to mean "physical presence" is needed is either a con-artist, a moron or completely ignorant. High Courts have consistently held that doesn't make sense for the court to refused evidence or to refuse to grant relief merely because a petitioner wasn't physically present. All that the court has to do is satisfy itself that the case is genuine, there is no collusion, fraud, or coersion. If videoconferencing is allowed in criminal cases, which are way more serious, why would it not be allowed in civil and family cases? It doesn't make sense. Calcultta High Court Annalie Prashad vs Romesh Proshad on 2 March, 1967 AIR 1968 Cal 48 https://indiankanoon.org/doc/1518969/ The learned trial Judge relied for the purpose upon the following words in the statute (Section 28(2)) namely, "the District Court shall be satisfied after hearing the parties" and he seems to have been of the opinion that, when the statute says "hearing the parties", the parties should be personally present in Court and, that being his view of the position under the statute, he ruled out affidavit evidence. The learned trial Judge does not say that there is anything in the statute or in the rules, which would conflict with the view that affidavit evidence would be permissible, unless we agree with him that the Act, having prescribed that the parties should be heard, would necessarily require their personal appearance or presence before the Court. We do not, however, think that that is the consequence of the words "hearing the parties" and, accordingly, the reason given by the learned trial Judge in that behalf cannot be accepted. We are also unable to agree that, in a case of divorce by mutual consent, affidavit evidence should be excluded on the ground that in such a case, it is desirable that the parties themselves should be present in Court. Delhi High Court Neelima Chopra vs Anil Chopra on 17 March, 1986 (11) DRJ 188 https://indiankanoon.org/doc/1471809/ It is no doubt true that Sub-section (2) of Section 13B requires the Court being satisfied "after hearing the parties and after making such inquiry as it thinks fit". What is the satisfaction which is to be arrived at by the court is provided by the said provision itself. The satisfaction which has to be arrived at by the court has to be that firstly a marriage had been solemnized and secondly that the averments in the petition are true. For arriving at such a satisfaction, I fail to understand the need for the parties to appear in person. In order to arrive at this satisfaction it is open to the parties to file affidavits or authorize some one to make a statement testifying to the correctness of the contents of the petition. Delhi High Court Vinay Jude Dias vs Renajeet Kaur, CM(M) 1030/2008 Where the parties are living far away from the jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The attorney can also act in matrimonial cases as per instructions of their principal. The order of the Trial Court insisting on the personal appearance of the parties is set aside. High Court of Punjab and Haryana Navdeep Kaur vs Maninder Singh Ahluwalia, reported in AIR 2010 P&H 90...on March 02,2010 Such a petition, it was held could not be rejected merely on the ground that one of the parties did not appear in person. It was held that the provisions of Section 13-B of the Act cannot be read to mean that personal appearance of the parties is mandatory. Appearance of parties would include appearance through duly constituted attorneys. The paramount thing which was required to be considered by the learned court below it was held was the correctness of the contents of the petition filed and also to see that the consent of either of the parties had not been obtained by way of force, fraud or undue influence. Bombay High Court Mr. Mukesh Narayan Shinde vs Mrs. Palak Mukesh Shinde on 28 March, 2012 wp-2521.12 https://indiankanoon.org/doc/25195214/ Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent. the learned Judge of the Family Court shall verify and record on-line consent with the help of webcam and laptop/computer. Andhra High Court Dasam Vijay Rama Rao vs M.Sai Sri on 17 June, 2015 C.R.P.No.1621 of 2015 https://indiankanoon.org/doc/123683887/ if one of the parties, like in the present case, appears before the Family court and expresses no objection for 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 move/application. 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. Allahabad High Court Kanwalijeet Sachdev [U/A-227] vs State Of U.P. Thru Additional ... on 2 May, 2016 https://indiankanoon.org/doc/81866950/ In other words while making inquiry as contemplated in sub-section (2) of Section 13-B, the court concerned has to personally interact with the parties which makes it almost mandatory for the parties to be personally present before the Court. However, in a situation, which has emerged in the present case, where the petitioner-husband is residing abroad i.e. in United States of America and both the parties have arrived at a settlement agreement, a draft of which has already been brought to the notice of the Court, insistence on the personal presence of the petitioner may not be required provided appropriate care and caution is taken by the court to verify the contents of the joint petition which may be presented. On presentation of the joint petition seeking divorce by mutual consent under Section 13-B of Hindu Marriage Act, the learned court below will proceed with the said application in accordance with law after permitting the power of attorney authorized by the petitioner to appear before it.
You have misunderstood and are thus misinterpreting the law. You have confused and confounded two concepts here. There is a difference between deposition through power of attorney and through video conferencing, which you should be aware of if you are a lawyer into active trial practice. Dont make assumptions if you do not have clarity on a concept. Be that as it may, you are free to print the judgments that you have extracted and carry them to court to tell the judge to allow you to depose through skype. I leave it now to your fine wisdom and sense of fairness to decide who is a con-artist, moron or ignorant.
Mr. Davessar, You still haven't provided a citation in which Supreme Court has laid down the "law" that "physical presence of the party is required". I well understand the two different concepts. The citations I provided in the original post are about videoconferencing only. In my follow-up I included citations of Power of Attorney as well because these are also cases where physical presence is not required. So rather than beat about the bush or cast aspersions on my understanding, please back up your claim that "Andhra HC (and by extension Bombay High Court - please see original question) ...ignores the law laid down by the Supreme Court" by allowing videoconferencing in Divorce by Mutual Consent cases.
1) there is no such law laid down by SC that physical presence of party is required . there is no impediment for POA holder to appear on behalf of party in mutual consent divorce cases
2) party can convey its consent through video conferencing
) there is no such law laid down by SC that physical presence of party is required . there is no impediment for POA holder to appear on behalf of party in mutual consent divorce cases
2) party can convey its consent through video conferencing
I am not here to find citations for you. If you want one, do a google search. The lawyers who come here spend a limited time here, so it is naive on your part to expect me or anyone to find citations for you. These idioms like "beat around the bush" that you people use will not help you in the courts. Read the citations again if you think they are on video conferencing. I was the counsel in one. I do not claim or disclaim anything. Whatever I had to say I have said it. Courtroom reality is more than quaint aphorism, so act mature.
Mr. Davessar, In other words, you were talking out of your ass and have nothing to back up your assertion. Stupendous lawyering - your parents must be proud. Also, the people who ask questions here are paying to ask those questions. Nobody is forcing you to reply to any of the questions, but if you do reply then it is incumbent upon you to completely answer the question and it is the least you can do. Nobody cares about your personal opinions regarding the definition of "mature" so keep that to yourself.
i do agree that when any querist raises a question as lawyers we have to substantiate our answers with valid reasoning and if possible judgments applicable to facts and circumstance of the case
Who talks out of his ass is clear from the multiple threads which you have created on this issue. You are clearly looking out for that one comforting answer which you haven't thus far got from anyone. Give your ass some pain if you want more citations. Crapheads who lean in favour of comforting but untrue and impracticable over true but discomforting answers get screwed when they get a reality check in the court, so you should wait for that day if you are going to allow status quo on your legal acumen to continue. Here is somebody who does not know, and bears a gard of laconic autocracy in tandem when an attempt is made to educate him, about the difference between two basic legal concepts. So keep making your parents proud of having brought you in existence.
Further may I add, if you have been able to find so many judgments which you think permit you to do what you have been asking us here, there is no purpose wasting your time and money here. You should print those judgments and carry them to the court to throw those at the judge when my lord asks your goodself about citations in support. The judge can overrule any one of us. If my lord rules against you, your goodself may tell him "Stupendous Justiceship Your Honour...Your parents must be so proud"
Do not forget to tap terrible.. :D
Mr. Davessar, Thin skin, evidence-free arguments, uttering a lot of words without answering the question presented, and ad hominems - congratulations! You have won the b*****d advocate from hell award. Go home and enjoy it.
1) when parties cannot remain present because of practical difficulties such as lack of leave at work, “there is no illegality to solve such difficulty by adopting novel and available ways.”
2) The courts have allowed the parties to use technology such as webcam to solve the problem.
3) “Though physical presence is not possible, the court can rely on the virtual presence of the parties for verification and confirmation of the mutual consent,”
4) The courts have consistently held that even marriage counselling could be facilitated “by a virtual presence.”
1. Whether it is up to the discretion of the court or it is well-established practice to accept deposition via videoconferencing.
In general, if one of the petitioners is opting for video conferencing evidence deposition, and undertakes to bear the expenses, his counsel may petition the court for permitting the party to depose evidence accordingly per court convenient time and date. The has been permitted and provisions has been made in law for this facility.
2. Whether courts accept Skype over laptop/mobile provided by lawyer at family courts where videoconferencing facility is not available.
The citations what you have mentioned itself contains the permission for such facility as sought for.
In other words, you were talking out of your ass and have nothing to back up your assertion. Stupendous lawyering - your parents must be proud.
Also, the people who ask questions here are paying to ask those questions. Nobody is forcing you to reply to any of the questions, but if you do reply then it is incumbent upon you to completely answer the question and it is the least you can do. Nobody cares about your personal opinions regarding the definition of "mature" so keep that to yourself.
Derogatory remarks about a lawyer over his opinions or suggestions that too in such bad language is condemned. Please mind your language when you address learned advocates.
In case any poor soul stumbles upon this thread, here's an update: The Hon'ble Supreme Court has directed that courts *should* allow videoconferencing in divorce cases http://supremecourtofindia.nic.in/jonew/judis/44642.pdf TRANSFER PETITION (CIVIL) NO. 1912 OF 2014 KRISHNA VENI NAGAM ...PETITIONER VERSUS HARISH NAGAM ...RESPONDENT NEW DELHI; MARCH 9, 2017. 14. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing. 18. We, therefore, direct that in matrimonial matters wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:- i) Availability of video conferencing facility. ii) Availability of legal aid service. iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. iv) E-mail address/phone number, if any, at which litigant from out station may communicate. Further reiteration (the question wasn't even presented to the Court; the Court chose to answer regardless) http://sci.gov.in/supremecourt/2017/22782/22782_2017_Judgement_12-Sep-2017.pdf CIVIL APPEAL NO. 11158 OF 2017 (Arising out of Special Leave Petition (Civil)No. 20184 of 2017) Amardeep Singh …Appellant Versus Harveen Kaur …Respondent NEW DELHI; SEPTEMBER 12, 2017. 22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice. Hyderabad has even used Skype in MCD cases http://www.deccanchronicle.com/nation/current-affairs/150817/hyderabad-couple-seeking-divorce-appear-via-skype-in-family-court.html
thanks for the update
it in Bombay Video conferencing facilities are availed of when one of the parties is staying abroad or not in position to attend court
3) further POA executed in favour of family member is accepted by family courts
What do you want to say by posting the above judgment, is there any specific question in that regard?
You may come out with the questions for clarification