Mr. Mithun Kishore Patadia vs Mrs. Sheetal Mithun Patadia
2016 Latest Caselaw 300 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION




                                                                                
                           WRIT PETITION NO. 9290 OF 2015
                                        WITH




                                                        
                           WRIT PETITION NO. 12862 OF 2015


            Mr. Mithun Kishore Patadia                   ..      Petitioner




                                                       
                  vs.
            Mrs. Sheetal Mithun Patadia                  ..      Respondent


            Mr. Rohan Cama with Ms Sapana Rachure for Petitioner.




                                             
            Mr. R. T. Lalwani i/b. Rizwan Merchant & Associates for
            Respondent.             ig   CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 26 February 2016

Date of Pronouncing the Judgment : 03 March 2016

JUDGMENT :-

1] The learned counsel for the parties agree that these two

petitions can be disposed of by a common judgment and order.

2] Accordingly, Rule in each of the petitions. With the consent of

and at the request of the learned counsel for the parties, Rule is

made returnable forthwith.

3] In writ petition no. 9290 of 2015 challenge is to the following

orders made by the Family Court at Bandra:

(a) Order dated 30 July 2015 below Exhibits 149 and 155

directing the petitioner to remain personally present for purpose of

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cross-examination and consequently rejecting the petitioner's

application for cross-examination through the facility of video

conferencing;

(b) Orders dated 20 August 2015 and 23 November 2015 closing

the petitioner's evidence in the matter for failure to comply with the

directions in the aforesaid order dated 30 July 2015.

4] In writ petition no. 12862 of 2015 the challenge is to the order

dated 23 November 2015 made by the Family Court at Bandra

rejecting petitioner's application for issuance of summons to some

witnesses to produce documents. The rejection is mainly on the

ground that the Family Court, by the aforesaid orders dated 20

August 2015 and 23 November 2015 has already closed the

evidence of the petitioner in petition nos. C-155 of 2007 and B-86 of

2008.

5] The orders dated 20 August 2015 and 23 November 2015

challenged in the two petitions, are really, consequential to the order

dated 30 July 2015. This means that if the order dated 30 July 2015

is to be interfered with, then, even the orders dated 20 August 2015

and 23 November 2015 will have to be set aside and opportunity

shall have to be granted to the petitioner to lead evidence in the two

petitions pending before the Family Court. Rightly therefore, the

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learned counsel for the parties focused upon their challenge and

defence to the order dated 30 July 2015.

6] The impugned orders, have been made in petition no. C-155

of 2007 instituted by the respondent wife claiming maintenance

and return of her belongings. The petition no. B-86 of 2008 has also

been instituted by the respondent wife seeking declaration and

injunction, in respect of certain immovable properties. Although the

impugned order dated 30 July 2015 has been made in petition no.

C-155 of 2007, the orders dated 20 August 2015 and 23 November

2015 have been made in both the petitions by the Family Court at

Bandra.

7] The petitioner, by application at Exhibit 149 had prayed for

record of his cross-examination through video conferencing. The

respondent wife, vide application at Exhibit 155, in turn, had prayed

for directing the petitioner to remain personally present for cross-

examination, failing which for closure of the petitioner's evidence in

the matter. By the impugned order dated 30 July 2015, the Family

Court, has dismissed the application below Exhibit 149 but allowed

the respondent's application below Exhibit 155, thereby, issuing

directions to the petitioner to remain personally present in order to

face cross-examination.

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            8]      If impugned order dated 30 July 2015 is perused, the Family




                                                                                

Court, it appears, has premised the same on the basis of the

following:

(A) That the matter is very old and there are directions for

expeditious disposal of the petitions. If permission for cross-

examination through video recording is granted, the same might

entail delay;

(B)

That the petition involves serious disputes, inter alia

concerning paternity. Therefore, the demeanor of the petitioner is

vital. The cross-examination of the petitioner in person will enable

the Family Court to witness the conduct and demeanor of the

petitioner;

(C) The reason stated by the petitioner that he might not be

permitted by his employer in Dubai to leave Dubai is untenable. This

is because the contract of employment on record indicates that the

petitioner is entitled to 30 days leave each year, which he can

always avail in order to face cross-examination;

(D) The reason stated by the petitioner that he is not permitted to

leave Dubai since, he has obtained a loan from his employer is

untenable and stands demolished by the passport record produced

by the petitioner himself evidencing his travel out of Dubai on 8 April

2015 and 10 July 2015;

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            (E)     The apprehensions that the respondent wife could arrange

to have the petitioner's passport impounded, in connection with the

criminal cases instituted by her against the petitioner, are

untenable, as, it is always open to the petitioner to take recourse to

the legal provisions to redress such apprehensions.

9] Mr. Cama, the learned counsel for the petitioner has

submitted that the decision of the Hon'ble Apex Court in the case of

State of Maharashtra vs. Dr. Praful B. Desai 1, affords a complete

answer to the contentions with regard to delay or demeanor. He

submitted that the said decision of the Hon'ble Supreme Court has

been followed by this Court in several decisions concerning matters

in Family Court. Mr. Cama submitted that the circumstance of the

petitioner leaving Dubai on two occasions has been taken into

consideration by the Family Court without afford of any opportunity

to the petitioner to explain the same. Mr. Cama submitted that on

both the occasions, the petitioner, had accompanied his employer

and therefore, there was no question of the bar against travel

outside Dubai applying to the said visits. Mr. Cama submitted that

the petitioner has obtained a loan from his employer, the petitioner

is not permitted to travel outside Dubai, even though, the contract of

his employment, entitles him to leave of 30 days. Besides, Mr.

Cama submitted that even though, the petitioner was not resisting 1 AIR 2003 SC 2053

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the legal processes in the criminal proceedings instituted by the

respondent wife, the apprehensions expressed by the petitioner

were not unfounded, particularly considering the circumstance that

the respondent was bent upon destroying the petitioner's career in

Dubai, through such means. For all these reasons, Mr. Cama

submitted that the impugned order dated 30 July 2015 warrants

interference in the interest of justice and fair play. The other

impugned orders, being consequential to this impugned order, also

warrant interference on the same grounds.

10] Mr. Cama also pointed out that the respondent wife had

initially endorsed her no objection to the record of cross-

examination through video conferencing. However, after lapse of

considerable time and only with a view to harass the petitioner, has

sought to resile from her earlier representation. Mr. Cama submitted

that since this aspect has been completely ignored whilst making

the impugned order, the impugned order warrants interference.

11] Mr. Lalwani, the learned counsel for the respondent submitted

that the petitioner, cannot, as a matter of right, insist upon the cross-

examination through video conferencing. He submitted that such

facility can be granted by the Court in its discretion. He submitted

that the petitioner in the present case having put-forth a false and

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contradictory case, discretion was rightly exercised against him. He

submitted that the petitioner came with false case with regard to

inability to leave Dubai without permission. However, in the course

of documents produced by the petitioner's constituted attorney i.e.

the petitioner's mother, the petitioner's passport was produced

which indicated very clearly that the petitioner had in fact left Dubai

on two occasions. He submitted that such conduct was rightly

taken into consideration by the Family Court and there is absolutely

no perversity in the exercise of the discretion. He also submitted

that the petitioner is avoiding legal processes and has virtually

made himself scarce. In such circumstances, the Family Court,

has rightly dismissed the petitioner's applications and granted the

respondent's applications by the impugned order. Mr. Lalwani finally

submitted that the petitioner has not made any case warranting

interference under Articles 226 and 227 of the Constitution of India.

12] The rival contentions now fall for determination.

13] The Hon'ble Supreme Court in the case of Dr. Praful Desai

(supra) has held that the term 'presence' in Section 273 of the

Cr.P.C. does not mean actual physical presence in the Court.

Further, considering that advances in science and technology, due

to which, the world has now shrunk, record of evidence through

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video conferencing can always be permitted. In the said decision,

the Hon'ble Apex Court has answered the issue of delay and

examination of demeanor, when, evidence is requested to be

recorded through video conferencing. The observations relevant in

this regard are reproduced for sake of convenience :

"Video conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear

events, taking place far away, as they are actually taking

place. To take an example today one does not need to go to South Africa to watch World Cup matches. One can watch

the game, live as it is going on, on one's TV. If a person is sitting in the stadium and watching the match, the match is being played in his sight/presence and he/she is in the

presence of the players. When a person is sitting in his drawing-room and watching the match on TV, it cannot be

said that he is in presence of the players but at the same time, in a broad sense, it can be said that the match is being

played in his presence. Both, the persons sitting in the stadium and the person in the drawing-room, are watching what is actually happening as it is happening. This is not virtual reality, it is actual reality. One is actually seeing and

hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen.

Except for touching, one can see, hear and observe as if the party is in the same room. In video conferencing both parties

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are in presence of each other. The submissions of respondents counsel are akin to an argument that a person

seeing through binoculars or telescope is not actually seeing what is happening. It is akin to submitting that a person seen

through binoculars or telescope is not in the "presence" of the person observing. Thus it is clear that so long as the accused

and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the

requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure

established by law".

"Recording of evidence by video conferencing also

satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the

witness was actually sitting before them. In fact the accused

may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to

play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if

not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the accused. Of course, as set out

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hereinafter, evidence by Video Conferencing has to be on some conditions."

"Reliance was then placed on Sections 274 and 275 of

the Criminal Procedure Code which require that evidence be taken down in writing by the Magistrate himself or by his dictation in open Court. It was submitted that video

conferencing would have to take place in the studio of VSNL. It was submitted that that this would violate the right of the accused to have the evidence recorded by the Magistrate or

under his dictation in open Court. The advancement of science and technology is such that now it is possible to set

up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under

his dictation in open Court. If that is done then the requirements of these Sections would be fully met. To this method there is however a draw back. As the witness is now

in Court there may be difficulties if he commits contempt of

Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore as a matter of prudence evidence by video-conferencing in open Court should be only

if the witness is in a country which has an extradition treaty with India and under whose laws Contempt of Court and perjury are also punishable."

"Thus in cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendance and issue a commission for examination of the witness. As indicated earlier Dr. Greenberg has refused to

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come to India to give evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot

procure his attendance. Even otherwise to procure attendance of a witness from a far of country like USA would

generally involve delay, expense and/or inconvenience. In such cases commission could be issued for recording

evidence. Normally a commission would involve recording evidence at the place where the witness is. However advancement in science and technology has now made it

possible to record such evidence by way of video conferencing in the town/city where the Court is. Thus in

cases where the attendance of a witness cannot be procured without an amount of delay, expense or inconvenience the

Court could consider issuing a commission to record the evidence by way of video conferencing."

"In this case we are considering whether evidence can

be recorded by Video-Conferencing. Normally when a

Commission is issued, the recording would have to be at the place where the witness is. Thus Section 285 provides to whom the Commission is to be directed. If the witness is

outside India, arrangements are required between India and that country because the services of an official of the country (mostly a Judicial Officer) would be required to record the

evidence and to ensure/compel attendance. However new advancement of science and technology permit officials of the Court, in the city where video conferencing is to take place, to record the evidence. Thus where a witness is willing to give evidence an official of the Court can be deported to record evidence on commission by way of video-conferencing. The evidence will be recorded in the studio/hall where the video- conferencing takes place. The Court in Mumbai would be

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issuing commission to record evidence by video conferencing in Mumbai. Therefore the commission would be addressed to

the Chief Metropolitan Magistrate, Mumbai who would depute a responsible officer (preferably a Judicial Officer) to proceed

to the office of VSNL and record the evidence of Dr. Greenberg in the presence of the respondent. The officer

shall ensure that the Respondent and his counsel are present when the evidence is recorded and that they are able to observe the demeanour and hear the deposition of Dr.

Greenberg. The officers shall also ensure that the Respondent has full opportunity to cross-examine Dr.

Greenberg. It must be clarified that adopting such a procedure may not be possible if the witness is out of India

and not willing to give evidence."

"To be remembered that what is being considered is recording evidence on commission. Fixing of time for

recording evidence on commission is always the duty of the

officer who has been deputed to so record evidence. Thus the officer recording the evidence would have the discretion to fix up the time in consultation with VSNL, who are experts

in the field and who , will know which is the most convenient time for video conferencing with a person in USA. The respondent and his counsel will have to make it convenient to

attend at the time fixed by the concerned officer. If they do not remain present the Magistrate will take action, as provided in law, to compel attendance. We do not have the slightest doubt that the officer who will be deputed would be one who has authority to administer oaths. That officer will administer the oath. By now science and technology has progressed enough to not worry about a video image/audio interruptions/distortions. Even if there are interruptions they

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would be of temporary duration. Undoubtedly an officer would have to be deputed, either from India or from the

Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence

is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the

evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to

give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will

subsequently be read into Court. Thus no question arises of the witness insulting the Court. If on reading the evidence the

Court finds that the witness has perjured himself, just like in any other evidence on commission, the Court will ignore or disbelieve the evidence. It must be remembered that there

have been cases where evidence is recorded on commission

and by the time it is read in Court the witness has left the country. There also have been cases where foreign witness has given evidence in a Court in India and that then gone

away abroad. In all such cases Court would not have been able to take any action in perjury as by the time the evidence was considered, and it was ascertained that there was perjury, the witness was out of the jurisdiction of the Court.

Even in those cases the Court could only ignore or disbelieve the evidence. The officer deputed will ensure that the respondent, his counsel and one assistant are allowed in the studio when the evidence is being recorded. The officer will also ensure that the respondent is not prevented from bringing into the studio the papers/documents which may be required by him or his counsel. We see no substance in this

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submission that it would be difficult to put documents or written material to the witness in cross-examination. It is now

possible, to show to a party, with whom video conferencing is taking place, any amount of written material. The concerned

officer will ensure that once video conferencing commences, as far as possible, it is proceeded with without any

adjournments. Further if it is found that Dr. Greenberg is not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording

of evidence by video conferencing. If the officer finds that Dr. Greenberg is not answering questions, the officer will make a

memo of the same. Finally when the evidence is read in Court, this is an aspect which will be taken into consideration

for testing the veracity of the evidence. Undoubtedly the costs of video conferencing would have to be borne by the State."

[Emphasis supplied]

14] In my judgment, the aforesaid decision of the Hon'ble

Supreme Court does afford an answer to the issues of delay and

witnessing of the demeanor and conduct of the petitioner. Relying

upon this decision of the Hon'ble Apex Court, this Court, in the case

of Mrs. Suvarna Rahul Musale vs. Rahul Prabhakar Musale 2 has

permitted the record of evidence by way of conference. To the same

effect, is the decision of the Calcutta High Court in the case of

Amitabh Bagchi vs. Ena Bagchi3. Mr. Cama is therefore right in

his submission that certain irrelevant considerations have seeped

2 Writ Petition No. 6514 of 2014 decided on 9 September 2014.

    3 AIR 2005 Calcutta 11



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into the decision making process, which has led to the making of

the impugned order.

15] The record also bears out that the petitioner was not afforded

adequate opportunity to explain his travel outside Dubai on two

occasions, notwithstanding his contention that there is a bar to said

travel, on account of his having obtained a loan from his employer.

The explanation now tendered that said travel on two occasions

was along with his employer and for the purposes of employment,

does not appear to be unreasonable or fanciful in the facts and

circumstances of the present case. The material on record, indeed

establishes that the petitioner, cannot, attend the proceedings

before the Family Court without amount of delay, expenses and

inconvenience, particularly, in the context of his employment in

Dubai. At this stage, there is no material on record to condemn the

petitioner as some fugitive, on the run. In any case this does not

appear to be the basis for making the impugned order dated 30 July

2015. Therefore, in the facts and circumstances of the present

case, there was no warrant to make the impugned order.

16] The record also bears out the application at Exhibit 149,

seeking leave to record cross-examination through video

conferencing was made by the constituted attorney of the petitioner

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on 17 June 2015. Copy of this application was served upon the

respondent, on whose behalf a no objection was endorsed thereon.

17] However, on 14 July 2015, i.e. after almost a lapse of one

month, the respondent wife chose to file application at Exhibit 155

seeking direction to the petitioner to personally remain present for

cross-examination and failing which, a prayer was made that the

petitioner's evidence must be closed. The petitioner, in his reply

dated 15 July 2015 to the application at Exhibit 155 pointed out that

the respondent had already consented to the petitioner's application

at Exhibit 149. The respondent even made an attempt to withdraw

her consent, which attempt, failed. In order to get over the consent

already recorded, the application at Exhibit 155 came to be made

by the respondent wife. The respondent wife has explained that the

consent granted was without understanding the implications and

with a view to avoid any further delay in the proceedings. Mr.

Lalwani submitted that although, an order was made for payment of

maintenance, the same was ultimately set aside by this Court with

directions to the petitioner to deposit an amount of Rs.20,00,000/-

before the Family Court. Out of this amount, the respondent wife

has been permitted to withdraw Rs.15,00,000/- and application is

still pending for permission to withdrawn the balance Rs.5,00,000/-.

Mr. Lalwani pointed out that the proceedings are quite old and till

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date, the respondent wife is in receipt of hardly any maintenance

amount. In contrast, the petitioner, is bent upon delaying the

proceedings unreasonably, to the utmost prejudice of the

respondent wife. Mr. Lalwani submitted that even this is a factor

which is required to be taken into consideration, before the

petitioner's application for leave to be cross-examined through

facility of video conferencing is taken into consideration.

18]

Mr. Cama, the learned counsel for the petitioner, on basis of

instructions, has made a statement that the petitioner will have no

objection whatsoever to the respondent wife withdrawing the

balance amount of Rs.5,00,000/- deposited in the Family Court by

the petitioner in pursuance of the order made by the Division Bench

of this Court. He submitted that the petitioner will indicate that he

has no objection to the respondent withdrawing an amount of

Rs.5,00,000/- upon the same terms and conditions, to which the

respondent was permitted to withdrawn the amount of

Rs.15,00,000/- in the pending application made by the respondent

wife seeking withdrawal. This statement is accepted.

19] Further, even though, the petitioner has made out a case for

interference with the impugned order, it is only appropriate that the

petitioner pays substantial costs to the respondent, because, the

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petitioner, to a certain extent, is responsible for the delay in the

progress of the two petitions, which have already been expedited.

As a result of such delay, the respondent, has been deprived of

making out a case with regard to maintenance and other reliefs.

Further, since, cross-examination is to be held by video

conferencing, the respondent will have to make arrangements to

ensure that her Advocate is available on the date fixed and

proceeds with the cross-examination as per the convenience of the

Court as well as the convenience of the petitioner.

20] The petitioner, in the aforesaid regards, cannot insist upon

any special liberties or concessions. The petitioner should strictly

abide by any reasonable conditions, which the Family Court may

deem it appropriate to impose in the matter of cross-examination

through video conferencing. Further, the petitioner, to pay costs of

Rs.50,000/- (Rupees Fifty Thousand) to the respondent wife, before

the actual date fixed for cross-examination by video conferencing.

This, together with the statement that the withdrawal of

Rs.5,00,000/- will not be objected to at least to some extent, will

redress the grievance of the respondent wife on the aspect of delay

and consequent denial of maintenance. The Family Court is at

liberty to make consequential orders in the context of safeguards

that are necessary for record of cross-examination through the

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facility of video conferencing. In this regard, the Family Court may

refer to the relevant observations in the case of Dr. Praful Desai

(supra).

21] The impugned order dated 30 July 2015 is accordingly set

aside. Since, as noted earlier, the orders dated 20 August 2015 and

23 November 2015 (both the orders) are consequential to the

making of the impugned order dated 30 July 2015, even they are

set aside. The Family Court, to reconsider the petitioner's

application for summons to witnesses to produce documents now

that the order dated 23 November 2015 (which is impugned in writ

petition no. 12862 of 2015) is set aside.

22] Subject to the observations as aforesaid, Rule is made

absolute to this extent in both the petitions. The petitioner to pay

costs of Rs.50,000/- (Rupees Fifty Thousand) to the respondent

within a period of two weeks from today. The Family Court to ensure

that such costs are indeed paid by the petitioner to the respondent

wife. The petitioner's statement that he shall have no objection to

the respondent wife withdrawing the amount of Rs.5,00,000/-

deposited in the Family Court in pursuance of the order made by

the Division Bench and subject to the same terms and conditions,

by which, the respondent wife was permitted to withdraw amount of

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Rs.15,00,000/-, is accepted. The directions for expedition of the

two petitions, are once again reiterated.

23] All concerned to act on basis of authenticated copy of this

order.

(M. S. SONAK, J.)

Chandka