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.
(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
“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
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
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
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……………
Addendum / correction / advise / suggestions from ld. brothers welcome on this brief article.