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Tajobsindia (Senior Partner )     10 September 2011

Video conferencing justice to persons of indian origins

Video – conferencing justice to persons of Indian origins living overseas


This article is to help people of Indian origin struck in gender Laws of the land and though want a quick way out but are struck in maze of LOC / Passport impounding fears and Red Corner Notices.


Many take them for ride due to their distance from their motherland and bottom of their heart I hear many PIO's / OCI's cursing their own motherland. However now with tech. advancement catching up with alloting tech. and gadgetries to several Indian Courts pan India especially Family Courts are getting equipped with VIDEO - CONFERENCING facilities and to understand how all these works let us refresh the recent history and legitimate applicability / acceptance bestowed to such advancement by Hon’ble SC of India.


The Supreme Court in Sakshi vs.
Union of India: 2004 (6) SCALE 15 (26.5.2004) accepted ‘video conferencing’ and ‘written questions’ in trials in the absence of a Statute.



The
Apex Court accepted three of the suggestions made by SAKSHI (supra) before the Law Commission of India, namely,


(i) video-conferencing procedure, and

(ii) putting written questions to the witnesses.

(iii) sufficient break to be given while recording evidence



These were in addition to the ‘screening’ method suggested by the Law Commission in its Report # 198.



By the date the Supreme Court decided SAKSHI (supra), on 26.5.2004, the Court had in another case, the State of Maharashtra vs. Dr. Praful B. Desai: 2003 (4) SCC 60 (which concerned allegations as to medical negligence), permitted the evidence of a foreign medical expert to be received by videoconferencing.


In that case, the Supreme Court followed Maryland vs. Craig : (1990) 497 US 836 decided by the US Supreme Court. In Sakshi (supra), the Supreme Court, while following Praful B. Desai case, accepted that such evidence by video conference must be treated to be in compliance with requirements of S. 273 CrPC which states that all evidence in the course of the trial or other proceedings shall be taken “in the presence of the accused” and it does not mean that the accused should have full view of the witness. The Supreme Court observed in Sakshi (supra)(p 34):



“Section 273 CrPC merely requires the evidence to be taken in the presence of the accused. The section, however, does not say that the evidence should have been recorded in such a manner that the accused should have full view of the victim or witnesses. Recording of evidence by way of video conferencing vis-à-vis sec 273 has been held to be permissible in a recent decision of this Court in State of Maharashtra vs. Dr. Praful B. Desai 2003(4) SCC 601.”

 

Applicability in matrimonial cases:-

However, very recently, civil judges have been receptive of taking depositions in matrimonial cases also through video conferences even from people based overseas. There are instances of Family Courts in Chennai and Delhi were Courts conducted proceedings in a divorce case for a couple based in two different countries through video-conferencing.


The first divorce through video-conferencing in Delhi took place at Karkardooma courts in September 2006, almost a year after the technology was introduced in trial courts. It was a petition for divorce through mutual consent. Since the wife worked at a multinational company in the US, she faced difficulties in flying down to India for every hearing. As a result, the case could not proceed expeditiously. Ld. ADJ Sh. Deepak Jagotra then suggested video-conferencing. The hearing was fixed for September 25, 2006, and the court passed the decree of divorce the same day. The woman had given the power of attorney to her father, who signed on various documents on her behalf.


Cases under family laws adjudicated down South India  the first breakthrough using such tech. advancement in Indian Courts to the best of authors knowledge happened in a
 family court in Chennai which conducted proceedings in divorce for a couple based in two different countries in the year April 2008 through video-conferencing. Despite the practical and infrastructural difficulties of arranging a videoconference connecting people in different time zones, the courts have shown a willingness to schedule hearings to accommodate the unusual timings. This path breaking mode of deposition was unusual as in the case before the Chennai family court, neither of the parties was present during the hearing; they were in Australia and the US
while the case was being heard in Chennai.


While in the same year April / May 2008
at Tis Hazari Court, Delhi’s ld. ADJ Sh. V.K. Khanna suggested that the deposition of the husband could be obtained through video-conference in a divorce case in Delhi after the husband failed to make an appearance on three occasions. The husband lived in Boston (USA) and was unwilling to come to India. Under the statutory effort for resettlement between the couple, the court had asked for the video-conference in order to decide whether to call the husband for a personal appearance.


Further in the same year in yet another family law case at the Tis Hazari courts in Delhi, ld. ASJ Dr. Kamini Lau held the hearing of a child custody case (GWA, 1890) through video-conference with the Dr. father then living in New Jersey, USA.


In each of the above cases th epeculiar facts emerging is that the dependence of video-conferencing has been resorted to either on the suggestion of the Court or with the active assistance of the Court, even to the extent of giving directions to the external affairs ministry to make arrangements for the video-conference facility.


Law in hand: -


In India, the provision for in camera proceedings is given in S. 11 of the FCA, 1984 so that there is no ambiguity to prevent the parties from seeking video conferencing option in Family Courts.

Well O 32 / R 2 CPC, 1908 also allows for proceedings to be held in camera.

Further, S. 45 of the IDA, 1869 applies all the proceedings of the Civil Procedure Code to apply to proceedings held under this Act ! Is it not so !!!!


Persuasive precedents in hand: -

i.e. Citations
from above family Courts such unique path breaking initiatives touching family laws are now available in public domains and any smart Lawyer now can extend his professional capabilities to several unfortunate NRI’s struck in gender biased Laws of the land !
J


In my next article I will try to put my views on “performa parties” and its usage in Mutual Consent Divorce applicable to overseas affected persons hit by bouquet of crl. / civil family cases and looking for quick way out without touching Indian soil……………


PS.:
Addendum / correction / advise / suggestions from ld. brothers welcome on this brief article.



Learning

 4 Replies

Arjun (IT)     10 September 2011

@ Author

 

This is what i was looking for......thanks a lot

revolutionary (NA)     10 September 2011

@ Tajobsindia

Dear Sir

    I have been through a few of your posts and feel that you have the requisite knowledge to advice me. I believe that my wife is going to file DV and 498a against me and my family. I would like to understand  as to what are the proofs that would be admissible in court or for filing and FIR. Can the police carry out arrests just on her statement only, would she not have to provide any proof of her allegations?

 

Your comments would be much appreciated.

 

regards

 

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     10 September 2011

Revolutionary,

 

Please understand that 498-a is a COGNIZABLE, NON-BAILABLE and NON-COMPOUNDABLE crime.

 

COGNIZABLE means that the girl's statement is sufficient to start the case.

NON-BAILABLE means that only Court can enlarge a person on bail, Police cannot grant bail.

NON-COMPOUNDABLE means that it can not be withdrwan by the complainant.

 

Now, she can start 498-a and DV and no proofs are required except her statement that she has been harassed and treated with cruelity.

 

Now, arrest and bail depends on which state you are in.

 

In Delhi/ Haryana/ Punjab: The complaint first goes to Women Cell/ Mahila Thana etc. where they try to reconcile the matter and you get ample time to get Anticipatory Bail

 

In UP/ Uttranchal: There is no provision of Anticipatory Bail and hence a stay on arrest has to be gotten from concerned High Court, but the possibilty of arrest is very high.

 

In Other states: I am not completely aware of the status, but arrest is possible.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Tajobsindia (Senior Partner )     10 September 2011

@ Revolutionary,

I could not have been more chrisp than @ Shonee hence I agree to his complete take on your que. asked to me.


Thanks @ Shonee for once releaving me ;-)


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