High Court of KeralaDivision Bench2023-04-13Dismissed with observations

Athira Mohanan v. Abijith E.S.

Case / Petition Number:O.P.(FC) No.149 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
P. G. Ajithkumar
Judgment Date: 2023-04-13
Court Decision / Holding: This Original Petition is dismissed with the above observations. The court held that counselling may be conducted through electronic video linkage in appropriate cases, directing that counselling be conducted via a video conferencing platform (e.g., Google Meet, Zoom) rather than WhatsApp, and that the reconciliation process may proceed using electronic linkage after proper consent and written reasons if one party cannot attend in person.
Final Disposition: Dismissed with observations

Parties to the Case

Appellants / Petitioners

Athira Mohanan

Respondents

Abijith E.S.

Legal Representation & Advocates

Counsels for Petitioners

• Luke J Chirayil
• Amal Jose
• Elsa Mary Thomas

Case Synopsis & Summary

Athira Mohanan filed O.P.(FC) No.149 of 2023 in the Kerala High Court challenging the Family Court, Thodupuzha’s order dated 12 January 2023 allowing I.A. No.1 of 2022 in O.P.(HMA) No.184/2022 to be conducted through electronic video linkage for counselling. The respondent sought to attend counselling via video call due to his employment in Malaysia, while the petitioner insisted on in-person counselling as essential for effective reconciliation. The petitioner relied on Santhini v. Vijaya Venketesh to argue that video conferencing in matrimonial proceedings is permissible only with mutual consent, and that personal interaction between spouses is necessary for genuine reconciliation. The court discussed the scheme of the 1984 Act, particularly Section 11, the constitutional Article 227, and Rule 6(2) of the Electronic Video Linkage Rules for Courts (Kerala), 2021, which permits electronic linkage after reconciliation and with written consent if a party cannot attend in person. It held that video counselling can be permitted when it subserves justice and after considering the facts, and that modern platforms (Google Meet/Zoom) are preferred over WhatsApp. Ultimately, the petition was dismissed with observations, upholding the Family Court’s course and endorsing the use of video conferencing under appropriate conditions to facilitate reconciliation.

Provisions of Law Cited

Section 11 (of the 1984 Act)Article 227 of the Constitution of IndiaRule 6(2) of the Electronic Video Linkage Rules for Courts (Kerala), 2021

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner argued that personal presence of the respondent is essential for effective counselling in matrimonial disputes; relying on Santhini v. Vijaya Venketesh, they contended that video conferencing should be allowed only with mutual consent and face-to-face interaction is necessary for sincere reconciliation. They emphasized that there were no serious issues requiring remote counselling and urged that in-person counselling best serves the aim of reunification. They also asserted that use of video linkage should not undermine the counsellor’s direct engagement with both parties.

Contentions of Respondents

The respondent sought permission to attend counselling via video call because of his employment abroad; he argued that video linkage would enable timely participation and progress in reconciliation. He asserted that after two in-person appearances, reconciliation could proceed through electronic linkage in accordance with Rule 6(2) of the Kerala Electronic Video Linkage Rules, 2021, with due consent and written reasons when a party cannot attend in person. The respondents highlighted the Family Court’s objective to facilitate reconciliation while accommodating practical constraints, and urged that the mechanism be available where appropriate to subserve justice.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Santhini v. Vijaya Venketesh	(2018) 1 SCC 1	Positive	Cited to support that video conferencing in matrimonial proceedings can be permissible, particularly after settlement and with consent, aligning with the court’s broader acceptance of electronic linkage under appropriate conditions.
Krishna Veni Nagam v. Harish Nagam	2017 (2) KHC 380	Overruled	The judgment expressly overrules Krishna Veni Nagam to the extent that it constrained the use of video conferencing, allowing such directions in appropriate cases under the Kerala Rules and the 1984 Act framework.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 O.P.(FC) NO. 149 OF 2023** **AGAINST THE ORDER DATED 12.01.2023 IN I.A.NO.1 OF 2022 IN O.P.(HMA) NO.184 OF 2022 ON THE FILE OF THE FAMILY COURT, THODUPUZHA** ## **PETITIONER:** ## **ATHIRA MOHANAN** **AGED 31 YEARS, DAUGHTER OF MOHANAN, CHIRACKALKOZHUPPIL HOUSE CHILAVU P.O, OLICKARNATTOM, ALAKKODU VILLAGE, THODUPUZHA TALUK, IDUKKI, KERALA, PIN – 685588.** **BY ADVS.** **LUKE J CHIRAYIL AMAL JOSE ELSA MARY THOMAS** **RESPONDENT:** **ABIJITH E.S.,** **AGED 33 YEARS, SON OF SHAJU, EDASSERIL HOUSE, AMAYAPRA BHAGAM, PARIYARAM KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK IDUKKI DISTRICT, KERALA, PIN – 685595.** 2 O.P.(FC) No.149 of 2023 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 31.03.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.149 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The respondent filed O.P.(HMA) No.184 of 2022 before the Family Court, Thodupuzha seeking a decree of dissolution of marriage on the ground of cruelty and desertion. He has filed I.A.No.1 of 2022 to attend the counselling through video call. The petitioner opposed it. However, the Family Court as per order dated 12.01.2023 allowed I.A.No.1 of 2022 and the respondent was permitted to attend counselling through video call. The petitioner challenges the said order in this Original Petition filed under Article 227 of the Constitution of India. 2. Heard the learned counsel appearing for the petitioner. 3. Marriage of the petitioner and the respondent was solemnised as per customary rites. Their relationship eventually estranged. Therefore, the respondent filed O.P. (HMA) No.184 of 2022. The respondent has filed I.A.No.1 of 2022 stating that although he attended the court proceedings in person on 13.09.2022 and 16.09.2022, counselling did not 4 O.P.(FC) No.149 of 2023 take place for want of presence of the petitioner. He had to go to Malaysia thereafter, where he is employed. In such circumstances, he has filed the said interlocutory application seeking permission of the court to attend counselling through video call. 4. The petitioner filed objection, a copy of which is Ext.P3. She contends that personal presence of the respondent is necessary for an effective counselling. It is her contention that there was no serious issues between the parties and if both parties attend the counselling in person, the differences of opinion between them can certainly be resolved. In such circumstances, the petitioner sought to refuse permission to the respondent to attend the counselling through video call. 5. The learned counsel appearing for the petitioner by placing reliance in **Santhini v. Vijaya Venketesh [(2018) 1 SCC 1]** would contend that in a Family Court proceedings counselling through video conferencing or such other on-line platform cannot be allowed unless both sides consent for such 5 O.P.(FC) No.149 of 2023 a course. The learned counsel further would submit that in the facts and circumstances of this case, personal interaction between the parties in the presence of the Counsellor is absolutely necessary. The endeavour of the Family Court as well as the Counsellor in a matrimonial dispute shall be to reunite the spouses and in such an attempt, the effort shall be sincere and effective. Unless both parties attend the counselling in person and interact face to face, the dispute which, in fact, is in a narrow compass, cannot be resolved. 6. In **Santhini** (supra) the majority view has been summarised in paragraph No.56 of the judgment, which reads,- “56. In view of the aforesaid analysis, we sum up our conclusion as follows :- (i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera. (ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned 6 O.P.(FC) No.149 of 2023 Family Court, it may exercise the discretion to allow the said prayer. (iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct. (iv) In a transfer petition, video conferencing cannot be directed. (v) Our directions shall apply prospectively. (vi) The decision in Krishna Veni Nagam v. Harish Nagam [2017 (2) KHC 380] is overruled to the aforesaid extent.” 7. Clause (iii) would say that if the Family Court deems it appropriate, having regard to the facts and circumstances of the case, that video conferencing will subserve the cause of justice, it may so direct. Therefore, it cannot be said that video conferencing is totally obviated from the proceedings before the Family Courts. 8. Rule 6(2) of the Electronic Video Linkage Rules for Courts (Kerala), 2021 reads,- “6. Application for Appearance, Evidence and Submission through Electronic Video Linkage:- xx xx (2) In proceedings before the Family Court, Electronic Video Linkage shall be allowed only after completing 7 O.P.(FC) No.149 of 2023 the reconciliation process subject to the condition that both the parties file consent memorandum for Electronic Video Linkage. When either of the party is not able to attend the reconciliation process in person, the Family Court may for reasons to be recorded in writing, allow the reconciliation process to be done through Electronic Video Linkage.” 9. This rule enables the Family Court, for the reasons to be recorded in writing, to allow a party to the proceedings to attend the reconciliation process through electronic video linkage. It cannot be said that the said rule is against the law laid down by the Apex Court in **Santhini** (supra), in the light of clause (iii) in paragraph No.56 of that judgment. In view of that matter, a Family Court can, if sufficient reasons exists, allow one of the parties to attend the counselling process even through electronic video linkage. It may be noted that twice the respondent appeared in person before the court for attending the process of counselling. Since the petitioner did not turn up only at that time, counselling in person could not be taken place. That is a sufficient reason justifying the Family Court in allowing counselling through online platform. 8 O.P.(FC) No.149 of 2023 However, considering that using of an advanced video platform for online counselling would be more effective, we are of the view that instead of WhatsApp video call, parties shall be allowed to attend the counselling process through a video conferencing platform, such as Google Meet, Zoom, etc. In such circumstances, we dismiss this Original Petition with the above observations. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.149 of 2023 ## **APPENDIX OF OP (FC) 149/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **THE TRUE COPY OF THE PETITION FILED BY THE RESPONDENT HEREIN WHICH GOT NUMBERED AS O.P (H.M.A) NO: 184/2022 DATED 26.04.2022, ON THE FILES OF THE FAMILY COURT, THODUPUZHA** ## **EXHIBIT P2** **THE TRUE COPY OF THE PETITION NUMBERED AS I.A. NO: 1/2022 IN O.P (H.M.A) NO: 184/2022 DATED 17.09.2022 ON THE FILES OF THE FAMILY COURT, THODUPUZHA** ## **EXHIBIT P3** **THE TRUE COPY OF THE OBJECTION IN I.A NO: 1/2022 IN O.P (H.M.A) NO: 184/2022 DATED 16.11.2022 ON THE FILES OF THE FAMILY COURT, THODUPUZHA** ## **EXHIBIT P4** - **THE TRUE COPY OF THE UNDATED PETITION NUMBERED AS O.P. NO: 338/2022 ON THE FILES OF THE FAMILY COURT, THODUPUZHA** **EXHIBIT P5** **THE TRUE COPY OF THE ORDER IN I.A. NO: 1/2022 IN O.P (H.M.A) NO: 184/2022 DATED 12.01.2023 ON THE FILES OF THE FAMILY COURT, THODUPUZHA**