Madras High Court

Aishwarya Sridhar vs Mr.Harihara Venkataraman ... on 17 October, 2023

                                                                                      C.R.P.No.2310 of 2023


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 17.10.2023

                                                             CORAM

                          THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                     C.R.P.No.2310 of 2023

                     Aishwarya Sridhar
                     Rep. by her mother as her power of attorney holder
                     S.Bhuvaneswari
                     21/9, Shanthiniketan Apartment,
                     Eshwardoss Street,
                     Triplicane, Chennai - 600 005.                                  ... Petitioner


                                                                Vs.


                     Mr.Harihara Venkataraman Balasubramanian
                     Rep. by his father as his Power of Attorney Holder
                     N.Balasubramanian,
                     No.103, Balaji Illam
                     Srinivasa Nagar,
                     1st East Street,
                     Palayamkottai, Tirunelveli - 627 011.                           ... Respondent


                                  Civil Revision Petition is filed under Article 227 of the Constitution
                     of India, to direct the Learned Presiding Officer, Principal Family Court,
                     Chennai, to receive the petitioner's and respondent's joined petition for
                     dissolution of their marriage under Section 13B of the Hindu Marriage
                     Act 1955 that was solemnized on 10.07.2016 under mutual consent and
                     for implementing the terms of compromise on 13.12.2022 and ascertain
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                     the consent of the parties hereto virtually, with the parties being identified
                     by respective counsel and to pass a decree in terms of the compromise
                     dissolving the marriage between the petitioner and the respondent
                     dispensing with the 6 months waiver period.


                                              For Petitioner   : Mr.V.Prakash
                                                                 Senior Counsel
                                                                 For M/s.M.Karthikeyani

                                              For Respondent : Mr.B.Vijay
                                                               For Mr.A.R.Balaji


                                                           ORDER

This Civil Revision Petition is filed seeking a direction to the

Learned Presiding Officer, Principal Family Court, Chennai, to receive

the petitioner's and respondent's joined petition for dissolution of their

marriage under Section 13B of the Hindu Marriage Act 1955 that was

solemnized on 10.07.2016 under mutual consent and for implementing

the terms of compromise on 13.12.2022 and ascertain the consent of the

parties hereto virtually, with the parties being identified by respective

counsel and to pass a decree in terms of the compromise dissolving the

marriage between the petitioner and the respondent dispensing with the 6

months waiver period.

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2. The petitioner and respondent are husband and wife. Their

marriage was solemnized on 10.07.2016 at Virugambakam, Chennai -

600 091. Due to misunderstanding between them, they got separated in

the year 2018. Thereafter, the petitioner filed H.M.O.P.No.5026 of 2022

for restitution of conjugal rights, which petition was numbered after the

direction of this Court in C.R.P.No.2553 of 2021. The respondent filed a

petition for divorce after the HMOP filed by the petitioner for restitution

of conjugal rights, but it was numbered earlier and therefore, it was

assigned the number H.M.O.P.No.152 of 2019. The petitioner and

respondent thereafter had arrived at a compromise on 13.12.2022. In

accordance with the terms of the compromise, they withdrew the

respective petitions before the Family Court namely H.M.O.P.No.152 of

2019 and H.M.O.P.No.5026 of 2022 through their above said power of

attorneys respectively. Thereafter, on 16.06.2023, the power of attorney

of the respondent namely his father and the power of attorney of the

petitioner namely her mother appeared before the Family Court and filed

an application for divorce by mutual consent under Section 13B of the

Hindu Marriage Act. However, the Learned Presiding Officer, Family

Court has stated that at least one of the parties should be present while

the other can appear on virtual mode. Since the petitioner is residing in https://www.mhc.tn.gov.in/judis

C.R.P.No.2310 of 2023

USA, she is constrained to move this revision petition before this Court.

3. Learned counsel for the petitioner submitted that, both the

petitioner and respondent are residing in USA. If they travelled to India to

present the petition for divorce by mutual consent, they may lose their

job. He further submitted that, after 5 years of separation, due to

intervention of elders, the parties have resolved the issue and entered into

a memorandum of compromise and therefore, it is necessary that the

consent petition be received through the respective power of attorneys of

the parties and consent of the parties be recorded on the virtual mode.

4. In support of his case, the learned counsel for the petitioner has

relied upon the decision of the Hon'ble Supreme Court in Santhini v.

Vijaya Venketesh [(2018) 1 SCC 1] and also the decision of the Hon'ble

High Court of Karnataka in Mr.Aditya Jagannath v. Nil

[M.F.A.No.4453/2020 (FC) dated 10.11.2020.

5. Heard the learned counsel for the petitioner and learned counsel

for the respondent, and perused the materials on record.

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6. The petitioner and respondent decided to dissolve the marriage

that was held on 10.07.2016. They are living separately for nearly five

years. They filed an application under Section 13B of the Hindu Marriage

Act, for mutual divorce through their respective power of attorney holders

as both are residing abroad, which was refused by the Learned Presiding

Officer at Family Court stating that at least one of the parties should be

present before the Court. Hence, this petition.

7. Now, the issue to be decided in this case is as to whether the

physical appearance of the parties is necessary for receiving the

application filed under Section 13B of the Hindu Marriage Act, through

the Power Agents of the parties, for mutual divorce.

8. At this juncture, it would be relevant to extract certain principles

laid down by this Court in Madras High Court Video-Conferencing in

Courts Rules 2020. Hence, the same is extracted hereunder :

“..... 4.4 An order permitting the conduct of Judicial Proceedings through Video-Conferencing May :

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(a) fix the date, time and schedule of the Video- Conference;

(b) appoint a co-ordinator at the Court Site and, where appropriate, at the Remote Site;

(d) provide for in-camera hearing at the Court and Remote Site;

(e) direct the payment of costs of Video-Conferencing and fix the time for payment thereof;

(f) where the hearing is for purposes of examining a witness or accused, specify the manner of transmission and authentication of the deposition and documents to and from the Court Site and Remote Site and for the exhibition thereof;

(g) issue further directions as may be considered necessary, incidental or ancillary to the conduct of hearings by Video-Conference.

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13. Residual Provisions: Matter with respect to which no express provision has been made in these Rules, shall be decided by the Court consistent with the principle of furthering the interests of justice.

3. Preparatory Arrangement:

3.3 The Coordinator at the respective Remote Site shall preferably be:



                         Sub Rule      Where the Advocate or Participant is   The Remote Site Coordinator
                                         at the following Remote Site:-               shall be :-
                            3.3.1      Overseas                               An official of an Indian
                                                                              Consulate /the relevant Indian
                                                                              Embassy/the relevant High
                                                                              Commission of India

9. The issue raised before this Court was elaborately discussed in

Santhini v. Vijaya Venketesh [(2018) 1 SCC 1], wherein, the Hon'ble

Supreme Court has held that video-conferencing can be permitted at any

stage of the proceedings and it cannot be excluded by the Court,

especially in the cases, where both parties agreed to settle the issues. The

relevant portions of the judgment are extracted hereunder:

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“The preposition that videoconferencing can be permitted only after the conclusion of settlement proceedings (resultantly excluding it in the settlement process), and thereafter only when both parties agree to it does not accord either with the purpose or the provisions of the Family Courts Act, 1984. Exclusion of videoconferencing in the settlement process is not mandated either expressly or by necessary implication by the legislation. On the contrary the legislation has enabling provisions which are sufficiently broad to allow videoconferencing. Confining it to the stage after the settlement process and in a situation where both parties have agreed will seriously impede access to justice. It will render the Family Court helpless to deal with human situations which merit flexible solutions. Worse still, it will enable one spouse to cause interminable delays thereby defeating the purpose for which a specialised court has been set up (Para 61.10).

Thus as a matter of principle, videoconferencing cannot be excluded from any stage of the proceeding before the Family Court. Whether it should be adopted in a particular case must be left to the judicious view of the Family Court. The High Courts will be well advised to formulate rules to guide the process. The Family Courts must encourage the use of technology to facilitate speedy and effective solutions. Above all, it must be acknowledged that a whole-hearted

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acceptance of technology is necessary for courts to meet societal demands for efficient and timely justice.(Para 117)”

10. The Hon'ble High Court of Karnataka has also dealt with this

issue in W.P.No.7338/2020 dated 03.06.2020, wherein, it has held that

the personal appearance of the parties is not required when a petition is

presented by an advocate as an authorized representative of the party.

The relevant portions of the judgment are as follows:

“..... 9. When a joint petition for divorce by mutual consent is presented by the parties for seeking a decree of divorce by mutual consent before a Family Court, both the husband and wife will be in position of the petitioners and therefore, the same principles which are laid down above will apply.

10. Therefore, we hold that there is no legal basis for the practice adopted by some of the Family Courts in the State when they insist on personal presence of the petitioner or petitioners at the time of filing the cases. Their personal presence is not required when a petition is presented by an advocate as an authorized representative of the petitioner or petitioners. In the same way, when a notice of proceedings filed in the Family Court is served, on the returnable date, the Family Court cannot insist on personal presence of the

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C.R.P.No.2310 of 2023

respondent when the respondent enters appearance through a legal practitioner as an authorized agent.”\

11. Further, the Hon'ble Supreme Court in its recent decision in

Sarvesh Mathur v. The Registrar General, High Court of Punjab and

Haryana [Writ Petition(s) (Criminal) No(s).351/ 2023 dated

06.10.2023] had highlighted the importance of Videoconferencing in

Judicial proceedings, which is as follows :

“.... 16. Above all, it must be noted that technology plays an essential role in securing access to courtrooms and as a result, access to justice for citizens across the country. Lawyers and litigants using electronic gadgets to access files and legal materials cannot be asked to turn the clock back and only refer to paper books. In the march of technology, the Courts cannot remain tech averse. Placing fetters on hybrid hearings, like mandating an age criteria, requiring prior application, and frequent denial of access to virtual participants has the direct effect of discouraging lawyers and litigants to use technology. Not only does this affect the efficiency and access to courts, but it also sends out the misguided message that access to courts can be restricted at whim to those who seek justice.

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17. The use of technology by the Bar and the Bench is no longer an option but a necessity. Members of the Bench, the Bar and the litigants must aid each other to create a technologically adept and friendly environment. The above directions must be implemented by all concerned stakeholders in letter and in spirit.”

12. In view of the aforesaid rulings, it is made clear that, in a

petition filed under Section 13B of the Hindu Marriage Act, through the

authorized power agent of the parties for mutual divorce, the appearance

of the parties is not necessary. Hence, this Court is inclined to allow this

petition. The Learned Presiding Officer of Family Court, Chennai is

directed to receive the divorce petition filed by both petitioner and

respondent through their respective power of attorneys and dispose of the

same, in accordance with law, by implementing the terms of compromise

entered into between the parties on 13.12.2022 and ascertaining the

consent of the parties hereto virtually. As regards the six months waiver

period, that can be decided by the Family Court concerned. It is also

made clear that the issue before this Court is between a husband and