Madhya Pradesh High Court
Smt. Bheeni W/O Nikit Phadke Thr. ... vs Nikit on 7 December, 2021
Author: Rajendra Kumar (Verma)
M.P. No.4140/2021 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(SINGLE BENCH: HON'BLE SHRI RAJENDRA KUMAR (VERMA))
M.P. No. 4140/2021
(Smt. Bheeni vs. Nikit)
Date: 07/12/2021
Shri Sanjay P. Joshi, learned counsel for the petitioner.
Ms. Meghna Singh, learned counsel for the respondent.
With consent heard finally.
This Petition filed under Article 227 of Constitution of
India is preferred against order dated 11/11/2021 passed by Principal
Judge, Family Court, Indore in HMP No.974/2021, whereby the
parties are directed appear personally for reconciliation proceedings
before the trial Court on 15/03/2022.
02. Brief facts of the case are that, the petitioner /applicant
no.1 is the daughter of Shri Anoop Garg and has executed a special
power of attorney in his favour at U.S.A on 26/02/2021 for filing
petition on behalf of the petitioner against the respondent/applicant
no.2 under Section 13-B of Hindu Marriage Act before the Family
Court. On 14/06/2021, a petition for divorce u/S.13-B of Hindu
Marriage Act 1955 (for short 'The Act, 1955') has been filed before
the Family Court the petitioner /applicant no.1 through her father.
Thereafter, on 01/09/2021, the petitioner has submitted an
application for recording her evidence through video conferencing on
the ground that the petitioner is residing in USA permanently and
due to Covid 19 and Visa conditions she is not able to come to Indore
for recording her evidence. This application has been allowed by
learned trial Court vide order dated 07/10/2021 (Annexure-P/4),
thereby directing to record the preliminary evidence with
mediation/reconciliation through video conferencing.
03. On 10/11/2021 preliminary statement of the
SUMATHI
Digitally signed by SUMATHI JAGADEESAN
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=JUDICIAL,
postalCode=452001, st=Madhya Pradesh,
JAGADEES
2.5.4.20=2c031063fea95cabb51a5432c9ce6df4c
49ae556251c6a1b1fca11a86643b2a2,
pseudonym=BEF252392AFC4F748B6F8C1E18D
805F7FACD91F2,
AN
serialNumber=28E58B6FE482FD4DF2469FAAFF
13E836178C3C81533BF4D0F8641FFAB3DD337B
, cn=SUMATHI JAGADEESAN
Date: 2021.12.13 10:35:36 +05'30'
respondent /applicant no.2 has been recorded before the Court in
person and the statement of the petitioner has also been recorded
through video conferencing from USA. By the impugned order the
learned trial Court rejected the prayer of recording evidence and to
conduct the mediation/reconciliation proceedings through video
conferencing and directed the parties to present in person. Being
aggrieved by the aforesaid order the petitioner/applicant no.1 has
filed the present petition.
04. Learned counsel for the petitioner submits that the trial
Court has refused to exercise its discretion vested in it by law and
passed the order contrary to the guidelines issued by Hon'ble High
Court of Bombay in the case of Harshada Deshmukh vs. Bharat
Appa Saheb Deshmukh decided on 06/04/2018 prior to
commencement of Covid 19 Pandemic. Hence prayed for quashing
the order dated 11/11/2021.
05. Learned counsel for the respondent has not opposed the
submissions made by other side and supported the prayer.
06. Heard learned counsel for the parties and perused the
record.
07. On perusal of record, it is clear that the learned trial
Court relying upon the judgment of Santini vs. Vijay Venkatesh AIR
2017 SC 5745 allowed the application of the petitioner/applicant
no.1 to record her preliminary evidence through video conferencing
vide order dated 07/10/2021 and the preliminary evidence has been
recorded through video conferencing on 10/11/2021. Hon'ble High
Court of Bombay in the case of Harshada Deshmukh vs. Bharat
Appa Saheb Deshmukh, (Writ petition No.1788/2018 order dated
06/04/2018), has held as under:
" In peculiar circumstances, like where one of
the parties cannot remain present due to certain
SUMATHI Digitally signed by SUMATHI JAGADEESAN
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=JUDICIAL,
postalCode=452001, st=Madhya Pradesh,
JAGADEE
2.5.4.20=2c031063fea95cabb51a5432c9ce6
df4c49ae556251c6a1b1fca11a86643b2a2,
pseudonym=BEF252392AFC4F748B6F8C1E
18D805F7FACD91F2,
serialNumber=28E58B6FE482FD4DF2469FA
SAN
AFF13E836178C3C81533BF4D0F8641FFAB3
DD337B, cn=SUMATHI JAGADEESAN
Date: 2021.12.13 10:36:52 +05'30'
practical difficulties i.e. job, leave, visa etc. Due to
globalization and since noticeable educated young
persons are crossing the borders of India and it is not
possible to remain present. This Court had observed
that there is no illegality to solve such difficulty by
adopting novel and available ways by use of
advanced technology of communication and new
scientific method. In the peculiar circumstances of
the case, the Court had directed online counselling to
be done with the help of web-cam and online
consent through the web-cam and laptop/computer.
12 In view of the aforesaid circumstances,
whether the issue involved in the present case was at
a more preliminary level i.e. at the stage of filing of
the petition through a Power of Attorney holder, it
can be seen that there is no legal lacunae in filing of
the petition through a registered Power of Attorney,
and the said petition needs to be accepted by setting
aside the impugned order by the Family Court.
Further, in the light of the Tilak 12/17 wp-1788-18
said legal position, Family Court will not insist upon
the presence of the parties before the Court and
would arrange for the consent terms to be recorded
either through skype or adopting any other
technology and the proceedings contemplated
under Section 13-B of the Hindu Marriage Act in the
time schedule specified therein.
13 The impugned order passed by the Family Court
is quashed and set aside."
08. In the present case, the petitioner, a permanent resident
of USA, has executed special power of attorney in favour of her
father and due to Covid 19 & Visa conditions she is not able to come
to Indore for recording her evidence and her preliminary evidence
has been recorded through video conferencing. It appears that
learned trial Court has failed to exercise its discretionary powers and
Digitally signed by SUMATHI JAGADEESAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
SUMATHI
INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya
Pradesh,
2.5.4.20=2c031063fea95cabb51a5432c9ce6df4c49ae556
251c6a1b1fca11a86643b2a2,
JAGADEESAN
pseudonym=BEF252392AFC4F748B6F8C1E18D805F7FA
CD91F2,
serialNumber=28E58B6FE482FD4DF2469FAAFF13E8361
78C3C81533BF4D0F8641FFAB3DD337B, cn=SUMATHI
JAGADEESAN
Date: 2021.12.13 10:37:10 +05'30'
directed the petitioner to appear personally for reconciliation
proceedings, therefore, in view of the aforementioned decision, this
Court is of the view that present petition needs to be accepted by
setting aside the impugned order by the Family Court. Further, in the
aforesaid legal position, Family Court will not insist upon the
presence of the parties before the Court and would arrange for the
reconciliation proceedings to be recorded either through skype or
adopting any other technology. Accordingly, the impugned order
passed by the Family Court is quashed and set aside.
09. With the aforesaid, M.P. No.4140/2021 stands allowed.
(RAJENDRA KUMAR (VERMA))
JUDGE
sumathi
Digitally signed by SUMATHI JAGADEESAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
SUMATHI
INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya
Pradesh,
2.5.4.20=2c031063fea95cabb51a5432c9ce6df4c49ae556
251c6a1b1fca11a86643b2a2,
JAGADEESAN
pseudonym=BEF252392AFC4F748B6F8C1E18D805F7FA
CD91F2,
serialNumber=28E58B6FE482FD4DF2469FAAFF13E8361
78C3C81533BF4D0F8641FFAB3DD337B, cn=SUMATHI
JAGADEESAN
Date: 2021.12.13 10:38:53 +05'30'
