Sreejith Raveendran v. Soorya P.R.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 14[TH] DAY OF SEPTEMBER 2022 / 23RD BHADRA, 1944** **O.P.(FC) NO. 243 OF 2022** **AGAINST THE ORDER DATED 01.04.2022 IN I.A.NO.2 OF 2021 IN O.P.(HMA) 57/2018 OF FAMILY COURT, CHAVARA PETITIONER:** ## **SREEJITH RAVEENDRAN** **AGED 39 YEARS, S/O. RAVEENDRAN, MOOLASSERIL HOUSE, KUTHIRAPANTHY PO, THAZHAVA, KARUNAGAPALLY, NOW RESIDING AT AUSTRALIA, REPRESENTED THROUGH HIS POWER OF ATTORNEY SUJATHA, W/O. RAVEENDRAN, MOOLASSERIL HOUSE, KUTHIRAPANTHY PO, THAZHAVA, KARUNAGAPALLY, PIN – 690523.** **BY ADVS. UTHARA A.S C.UNNIKRISHNAN (KOLLAM) ANANDA PADMANABHAN MAHESH CHANDRAN VIJAYKRISHNAN S. MENON** ## **RESPONDENT:** **SOORYA P.R., AGED 30 YEARS, D/O. RAJENDRAN, MYLAMOOTTU VEEDU, PARUTHIPALLI PO, MANNORKKARA VILLAGE, KATTAKKADA, THIRUVANANTHAPURAM, NOW RESIDING AT AJOYVILLA, POONKOODU, MEPPUKADA PO, MALAYINKEEZHU, THIRUVANANTHAPURAM, PIN – 695571.** **2** O.P.(FC) No.243 of 2022 **BY ADVS.** **SAJU S** **A.V.SAJAN ANJANADEVI.G SAI NIKHITHA M.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 14.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** O.P.(FC) No.243 of 2022 ## **JUDGMENT** Ajithkumar, J. The petitioner is the husband. He challenges, in this Original petition filed under Article 227 of the Constitution of India, Ext.P3 order of the Family Court, Chavara in I.A.No.2 of 2021 in O.P.(HMA) No.57 of 2018. 2. I.A.No.2 of 2021 was filed by the petitioner for permission to adduce his evidence through video linkage facility. That petition was dismissed holding that the presence of parties is desirable in matrimonial disputes; since counselling and mediation are involved, besides the recording of evidence. 3. Along with this Original Petition, the petitioner has also filed O.P.(FC) No.370 of 2022. On 08.07.2022, when the matters came up for consideration, this Court passed the following order: “The petitioner in both cases is currently in Australia His petition to examine him on the videoconferencing platform has been rejected. He also challenges an order granting interim maintenance from the date of **4** O.P.(FC) No.243 of 2022 the petition as well as the cost of litigation. The respondent would contend that the entire exercise to adduce evidence through the videoconferencing platform is to avoid the petitioner's presence before the court as he has a huge liability to pay maintenance. In such circumstances, we are of the view that to prove the bona fide of the petitioner to examine him through the videoconferencing platform, he shall deposit Rs.3,00,000/- (Rupees three lakhs only), within a period of four weeks, before the Family Court, Chavara.” 4. In obedience to the said order, the petitioner has deposited Rs.3 lakhs before the Family Court, Chavara. 5. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. ## 6. In **Santhini v. Vijaya Venketesh [(2018) 1 SCC** ## **1]** , the Apex Court held,- “54. We have already discussed at length with regard to the complexity and the sensitive nature of the controversies. The statement of law made in **Krishna Veni Nagam v. Harish Nagam [(2017) 4 SCC 150]** that if either of the parties gives consent, the case can be transferred, is absolutely unacceptable. However, an **5** O.P.(FC) No.243 of 2022 exception can be carved out to the same. We may repeat at the cost of repetition that though the principle does not flow from statutory silence, yet as we find 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. We are absolutely conscious that the enactment gives emphasis on speedy settlement. As has been held in **Bhuwan Mohan Singh v. Meena and others [(2015) 6 SCC 353]** , the concept of speedy settlement does not allow room for lingering the proceedings. A genuine endeavour has to be made by the Family Court Judge, but in the name of efforts to 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, we are disposed to think that 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, that much of discretion, we are inclined to think 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, we would like to add a safeguard. **6** O.P.(FC) No.243 of 2022 A joint application should be filed before the Family Court Judge, who shall take a decision. However, we make it clear that in a transfer petition, no direction can be issued for video conferencing. We reiterate that 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.” 7. In view of the law laid down by the Apex Court, recording of evidence through video conferencing shall not ordinarily be allowed in cases before the Family Court unless both sides consent the same. Ext.P2 is a copy of the objection filed by the respondent in I.A.No.2 of 2021. The main contention raised in Ext.P2 is that the attempt of the petitioner is to avoid payment of maintenance and in order for that end, he seeks to record evidence through online mode. Of course, she also contended that voluminous evidence is involved, both oral and documentary, and therefore, recording evidence through video conferencing would not be feasible. **7** O.P.(FC) No.243 of 2022 8. It may be noted that the petitioner is in Australia and his presence there is required since the process on his application for permanent residence is in progress. The fact that the petitioner is in Australia is not a disputed fact. Needless to say that if his physical presence is insisted in court for the trial, the result will be delay. The respondent’s objection for resorting to video linkage facility for recording evidence is not regarding its impracticability. On the other hand, in order to avoid payment of maintenance amount he is trying to avoid attendance in person. The further objection is that the evidence is voluminous. 9. In **Santhini** (supra) the Apex Court held that when the parties give consent that it is necessary in a specific factual matrix, and having regard to the convenience of the parties, the Family Court may allow the prayer for video conferencing. The objection of the respondent is two pronged. The first objection that the petitioner evades payment of maintenance no longer exists since the petitioner already made a deposit of Rs.3 lakhs and the respondent is allowed to withdraw the same. **8** O.P.(FC) No.243 of 2022 10. After implementation of the Electronic Video Linkage Rules for Courts, 2021, there is enough facility and sufficient safeguards for recording evidence through video conferencing. Now, the facts that the evidence is voluminous and documents, both physical or electronic, are to be confronted with the witness are no reasons for not resorting to video linkage facility. Considering all such matters, we are of the view that the second objection being with respect to the practical difficulties and not to use video linkage facility as such, the same also need not be reckoned with. Hence we hold that the petitioner can be allowed to give evidence through video linkage facility. That will avoid any further delay in conclusion of the trial, regarding which the respondent also has serious concern. The impugned order is therefore liable to be set aside. 11. Hence, the order dated 01.04.2022 in I.A.No.2 of 2021 in O.P.No.57 of 2018 is set aside. The Family Court, Chavara is directed to allow recording of evidence of the petitioner through video linkage following the provisions in the **9** O.P.(FC) No.243 of 2022 Electronic Video Linkage Rules for Courts, 2021. The Original Petition is disposed of accordingly. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr **10** O.P.(FC) No.243 of 2022 ## **APPENDIX OF OP (FC) 243/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE IA NO: 2/2021 IN OP(HMA) NO. 57/2018.** **EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO IA NO: 2/2021.** - **EXHIBIT P3 CERTIFIED COPY OF THE ORDER DATED 1/4/2022 IN IA NO: 2/2021.** - **EXHIBIT P4 TRUE COPY OF THE LIST OF DOCUMENTS FILED BY THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE LIST OF DOCUMENTS FILED BY THE RESPONDENT.** ## **RESPONDENT EXHIBITS** - **EXHIBIT R1 (A) THE TRUE COPY OF THE COMMON JUDGMENT IN OP(F.C) NO 206/2020 AND O.P(F.C) 207/2020 DATED 23.06.2020** - **EXHIBIT R1 (B) THE TRUE COPY OF THE MEMORANDUM OF REVIEW PETITION FILED BY THE PETITIONER DATED 16.11.2020 IN O.P (F.C) 207/2020** - **EXHIBIT R1 (C) THE TRUE COPY OF THE COMMON ORDER PASSED BY THIS COURT IN R.P.NO.911/2020 AND R.P.NO.913/2020 DATED 27.11.2020.** - **EXHIBIT R1 (D) THE TRUE COPY OF THE CASE HISTORY WITH RESPECT TO O.P NO.809/2018 DOWNLOADED FROM E-COURTS STATUS OF HON'BLE FAMILY COURT, CHAVARA** - **EXHIBIT R1 (E) THE TRUE COPY OF THE ORDER BY THE FAMILY COURT CHAVARA IN I.A 1/2020 IN** **11** O.P.(FC) No.243 of 2022 **EXHIBIT R1 (F)** **THE O.P 57/2018 DATED 25.02.2022. THE TRUE COPY OF THE EXECUTION PETITION E.P NO.8 /2022 DATED 24.03.2022 FILED BY THE RESPONDENT**