Smt. Kishori Ravi Venkat Sai vs Rajeev Kumar Dubey
2024 Latest Caselaw 12830 MP

Madhya Pradesh High Court

Smt. Kishori Ravi Venkat Sai vs Rajeev Kumar Dubey on 7 May, 2024

Author: Pranay Verma

Bench: Pranay Verma

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE PRANAY VERMA
                                                   ON THE 7 th OF MAY, 2024
                                              MISC. PETITION No. 2453 of 2024

                           BETWEEN:-
                           SMT. KISHORI RAVI VENKAT SAI W/O RAJIV KUMAR
                           DUBEY, AGED ABOUT 47 YEARS, OCCUPATION:
                           SERVICE PERMANENT ADDRESS- BUILDING A/1.
                           KRISHNA GARDEN, PHASE 1 JAGAMARA, BARABAI,
                           KHANDAGIRI, BHUBNESHWAR (ODDISA) PRESENT
                           ADDRESS- 4872 MINTWOOD CT SAN JOSE, CA 95129,
                           USA. (OTHER COUNTRY)

                                                                                         .....PETITIONER
                           (BY SHRI ADITYA SHRIVASTAVA - ADVOCATE)

                           AND
                           RAJEEV KUMAR DUBEY S/O LALLANJI DUBEY, AGED
                           ABOUT 47 YEARS, R/O: D.2-403, RAMKI VAN NORTH,
                           YELAHANKA, BENGLORE (MADHYA PRADESH)

                                                                                       .....RESPONDENT


                                 This petition coming on for admission this day, th e court passed the

                           following:
                                                              ORDER

This petition under Article 227 of the Constitution of India has been preferred by the petitioner/wife challenging the order dated 11.10.2023 passed

in RCS HMA No.1323/2022 by the III rd Additional Principal Judge, Family Court, District Indore, whereby the application preferred by her for permitting appearance through video conferencing for the purpose of mediation proceedings has been rejected.

02. The facts in brief are that the respondent has filed a petition under

Section 13 of Hindu Marriage Act, 1955 before the Family Court for dissolution of marriage between the parties by grant of a decree of divorce. Admittedly, the petitioner is a resident of U.S.A. whereas respondent is residing at Bengaluru.

03. During course of proceedings before the Family Court an application was filed by the petitioner for permitting her to participate in the conciliation proceedings through video conferencing submitting that she is residing in U.S.A. and is not able to come to Indore for the said purpose. She is having responsibility of taking care of her child, who is aged about 11 years and who is not having a passport for him to travel to India. The petitioner cannot leave him at U.S.A. and travel alone to India.

04. The application has been rejected by the Family Court on the ground that a similar application preferred by the petitioner earlier has already been rejected by order dated 05.07.2022.

05. Learned counsel for the petitioner has submitted that the Family Court has refused to exercise the discretion vested in it by law and has passed the order contrary to the guidelines issued by the High Court of Bombay in Harshada Deshmukh Vs. Bharat Appasaheb Deshmukh, W.P. No. 1788/2018 decided on 06.04.2018. Reliance has also been placed by him on the decision of the Hon'ble Supreme Court in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1. It is hence submitted that the impugned order be set aside.

06. I have heard the learned counsel for the petitioner and have perused the record.

07. In Harshada Deshmukh (Supra) the Bombay High Court has held as under:

"11. xxxxxxx In peculiar circumstances, like where one of the parties cannot remain present due to certain 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."

08. Even in the case of Santini (Supra) the Supreme Court has not prohibited recording of preliminary evidence on an application under Section 13-B of the Act, 1955 through video conferencing. On the contrary, from a careful reading of the entire decision it is evident that it has been held that such recording of preliminary evidence is permissible under special circumstances.

09. In the present case, the petitioner is residing at U.S.A. and is having a child aged about 11 years residing along with her. The child is stated not to be having a passport due to which he cannot undertake the journey to India. The petitioner cannot be expected to leave her child alone at U.S.A. and to travel to India for the purpose of these proceedings and for personally participating in

the proceedings. The Family Court has failed to exercise its discretionary powers and has illegally directed the petitioner to appear personally for reconciliation proceedings. Exceptional circumstances have been pointed out by the petitioner whereby she is not able to come to Indore which circumstances have been failed to be taken into consideration by the Family

Court which has merely rejected the application of the petitioner on the ground that a similar application has already been rejected earlier. Since the same would also be in derogation to the principles as laid down in the judgments as aforesaid, rejection of application of petitioner earlier would not make any difference.

10. In my opinion, the Family Court ought not to have insisted upon the personal presence of the petitioner for reconciliation proceedings. The impugned order passed by the Family Court deserves to be and is accordingly set aside and it is directed not to insist upon personal presence of the petitioner before the Court and would arrange for reconciliation proceedings to be conducted by adopting any technology as may be available for presence of the petitioner as well as the respondent through video conferencing.

11. With the aforesaid directions, the petition stands allowed and disposed off.

(PRANAY VERMA) JUDGE Shilpa