The presence of the person can be obtained physically so also
virtually. What is important is that a person should be seen and be heard
and vice versa. These are the methods of distant communication, which is
possible by virtual measures and microspeakers. Therefore, it is not
necessary for the Judge to insist for the physical presence of the witness
when it is not possible especially in the circumstances of this case, a
virtual presence can be secured which is very much legal and for this
purpose, it is not necessary for the Judge himself to give time but such
evidence can be recorded by appointing Commissioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6514 OF 2014
Mrs. Suvarna Rahul Musale vs. Rahul Prabhakar Musale
CORAM : MRS. MRIDULA BHATKAR, J.
DATE : 9th September, 2014.
Citation;2015(2) ALLMR230
2. By this Writ Petition, the jurisdiction of this Court in Article 227 of
the Constitution of India is invoked by challenging the order dated 7th
March, 2014 passed by the learned Judge of Family Court No. 5, Pune.
The respondent/husband has filed the petition under section 9 of the
Hindu Marriage Act for decree of restitution of conjugal rights on 3rd
November, 2008 . The petitioner/wife in her written statement cum
counter claim demanded divorce. A minor daughter Rujula was born out
of the wedlock. The petitioner/wife has been working in USA since 18th
June, 2011 and daughter who is 5 ½ years old stays with her mother. The
evidence of the husband is recorded by the Family Court. Now, the
petitioner/wife has to lead her evidence, for that purpose, an Application
is filed by her for recording her evidence through video conferencing and
also for the appointment of Court Commissioner for recording the crossexamination
of the petitioner/wife through video conferencing. The said
Application Exhibit 83 was rejected by the Family Court Judge. Hence,
this Writ Petition.
3. The learned counsel for the petitioner has submitted that the order
passed by the learned Family Court Judge is erroneous and illegal. He
submitted that the learned Judge was not correct in holding that the
petitioner/wife is required to travel India for recording of evidence. The
learned Judge has committed error in appreciating the Application on the
ground that for recording evidence, the Court atmosphere should be
available otherwise the witness may not give answers instantly and there
is no scope to observe her demeanour. He submitted that the
petitioner/wife is serving in U.S. and looking after minor daughter, so it is
not convenient for her to come to India. He submitted that her
application be allowed. In support of his submission, the learned counsel
relied on the following judgments:
(i) Judgment of the Supreme Court in the case of State of
Maharashtra vs. Praful B. Desai, reported in AIR 2003 SC
2053.
(ii) Judgment of Calcutta High Court in the case of Amitabh
Bagchi vs. Ena Bagchi, reported in AIR 2005 Calcutta 11.
4. The learned counsel for the respondent opposed the Application
and supported the order of the trial Judge. He submitted that the Court
will be deprived of an opportunity to observe demeanour of the witness
which is necessary to arrive at correct conclusion. He submitted that
physical appearance of a witness is necessary for the smooth going of the
trial. There is no special circumstance that the Application of the
petitioner for recording of evidence through video conferencing was to be
allowed. He further submitted that the family of the petitioner resides in
Pune. The reasons given by the petitioner/wife that it is expensive to
travel is not acceptable, as she is drawing good salary in US. Therefore,
adjudication of the matter and evaluation of the evidence is possible if the
parties are present physically before the Court.
5. At the outset there is a substance in the Writ Petition. The
petitioner/wife has moved an Application for recording of evidence
through video conferencing because she is working in U.S. She has a
minor daughter aged about 6 years and stays with her. It is a different
and distant country. Travelling to and fro from U.S. to India is
undoubtedly financially expensive so also it is difficult for a mother of 6
years old girl to arrange the logistics. Though in the Application only
financial difficulty and inconvenience is mentioned, it is necessary to
understand what kind of inconvenience a mother of 6 years old child can
face if she has to travel from U.S. To India to give evidence. Moreover she
is a working lady and may face difficulty in getting leave and may be some
hurdles in VISA. Hence, the Application for video conferencing is justified
on all counts.
6. The learned Judge of the Family Court has lost sight that recording
of evidence with the help of electronic methods and techniques is
acknowledged and recognized in the judicial system. In the case of
Amitabh Bagchi vs, Ena Bagchi (supra), wife was in India and husband
remained in U.S. When there was an issue of maintenance between the
parties, the husband made application before the Court for examining him
through video conferencing. The Court has allowed the Application and
also gave directions when the evidence was to be recorded by video
conferencing by the trial Court.
7. In the case of State of Maharashtra vs. Praful B. Desai, though the
issue before the Court was in respect of interpretation of section 273 of Cr.
P.C. wherein the the meaning of the phrase “in the presence of accused”
was discussed and section was interpreted. In the said judgment the
Court has approved the principle of updating construction. Advancement
of new techniques and skills are introduced in daytoday
life. Over a
period of time new technologies are introduced in the daytoday
life,
however, speed and frequency of the change in law does not
commensurate to speed in the change of science and technology. The
process of change and amendment in law is tedious and lengthy. On the
other hand, the technology introduces new machines, techniques and
facilities very speedily. For eg.: document earlier was restricted to paper
or inscriptions, writing on paper like material, however, the document
today includes database in computer. In the said judgment, the Supreme
Court has reproduced valuable observations of Justice Bhagwati in the
case of National Textile Workers' Union vs. P.R. Ramakrishnan at page 256
as follows:
“We cannot allow the dead hand of the past to stifle the growth of
the living present. Law cannot stand still it must change with the
changing social concepts and values. If the bark that protects the
tree fails to grow and expand along with the tree, it will either
choke the tree or if it is a living tree, it will shed that bark and
grow a new living bark for itself.”
8. It is to be noted that our legislature has wisely taken note of this
fact and accordingly has made the changes in the Evidence Act by
amending Section 65 and thereby section 65A, 65B are inserted on the
point of recording of evidence relating to electronic record and
admissibility of electronic record. When the legislature has expanded the
scope of term 'Evidence' acknowledging advance technology and scientific
methods used by people in their daytoday
activities, it is the duty of the
Judicial officers to put life to those letters of law by interpreting them
effectively.
9. An Attitudal change in Judges is required. We need to train
ourselves to understand the pulse of the new generation who is avidly
technosavvy. Though it is difficult for the Judges, especially who are in
their middle age, to accept and digest the entry of new language and
methods of evidence in the established judicial system, it is high time for
us to change our mind set and see whether this new technology can help
us to increase the speed and also we have to take into account the
convenience of the parties as our judicial system is necessarily litigant
centric.
10. The presence of the person can be obtained physically so also
virtually. What is important is that a person should be seen and be heard
and vice versa. These are the methods of distant communication, which is
possible by virtual measures and microspeakers. Therefore, it is not
necessary for the Judge to insist for the physical presence of the witness
when it is not possible especially in the circumstances of this case, a
virtual presence can be secured which is very much legal and for this
purpose, it is not necessary for the Judge himself to give time but such
evidence can be recorded by appointing Commissioner. Hence, I set aside
the order passed by the Judge and allow this Application of Appointment
of Commissioner to record the evidence.
11. Rule is made absolute on the following terms:
(i) The Family Court to appoint any retired Judge as a Court
Commissioner to record the evidence of the petitioner/wife by
crossexamination
through video conferencing. I suggest the
name of retired Judge Mr. J.L. Deshpande subject to his
availability. However, it is the discretion of the Judge of
Family Court.
(ii) It is to be noted that besides this, the learned Judge of the
Family Court may direct the petitioner to appear before
him/her through video conferencing, if the Family Court Judge
wants to put some questions with a view to ascertain any fact
in the evidence.
(iii) The petitioner shall submit her affirmed copy of the affidavitinchief
on or before 30th September, 2014 and unaffirmed
copy of the said affidavit is to be handed over to the
respondent on or before 25th September, 2014.
(iv) The Commissioner to record crossexamination
of the
petitioner maximum for 8 hours which may spread over not
more than six working hours and it is to be recorded till 30th
October, 2014 as per the convenient time and place of the
Commissioner. The charges of the Commissioner so also the
cost of the commission including expenses of video
conferencing is entirely to be borne by the petitioner/wife.
(v) The crossexamination
preferably should not exceed more than
8 hours. The Commissioner to be paid Rs.5,000/per
hour
plus the cost of commission and cost of video conferencing.
(vi) If the District Court is in a position to make available video
conferencing facility to the parties and the Commissioner, then
on payment of charges without causing any inconvenience to
the District Court, the video conferencing may be held in
District Court.
(vii) Copy of the order may be produced before the District Judge.
(MRS.MRIDULA BHATKAR, J.)
virtually. What is important is that a person should be seen and be heard
and vice versa. These are the methods of distant communication, which is
possible by virtual measures and microspeakers. Therefore, it is not
necessary for the Judge to insist for the physical presence of the witness
when it is not possible especially in the circumstances of this case, a
virtual presence can be secured which is very much legal and for this
purpose, it is not necessary for the Judge himself to give time but such
evidence can be recorded by appointing Commissioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6514 OF 2014
Mrs. Suvarna Rahul Musale vs. Rahul Prabhakar Musale
CORAM : MRS. MRIDULA BHATKAR, J.
DATE : 9th September, 2014.
Citation;2015(2) ALLMR230
2. By this Writ Petition, the jurisdiction of this Court in Article 227 of
the Constitution of India is invoked by challenging the order dated 7th
March, 2014 passed by the learned Judge of Family Court No. 5, Pune.
The respondent/husband has filed the petition under section 9 of the
Hindu Marriage Act for decree of restitution of conjugal rights on 3rd
November, 2008 . The petitioner/wife in her written statement cum
counter claim demanded divorce. A minor daughter Rujula was born out
of the wedlock. The petitioner/wife has been working in USA since 18th
June, 2011 and daughter who is 5 ½ years old stays with her mother. The
evidence of the husband is recorded by the Family Court. Now, the
petitioner/wife has to lead her evidence, for that purpose, an Application
is filed by her for recording her evidence through video conferencing and
also for the appointment of Court Commissioner for recording the crossexamination
of the petitioner/wife through video conferencing. The said
Application Exhibit 83 was rejected by the Family Court Judge. Hence,
this Writ Petition.
3. The learned counsel for the petitioner has submitted that the order
passed by the learned Family Court Judge is erroneous and illegal. He
submitted that the learned Judge was not correct in holding that the
petitioner/wife is required to travel India for recording of evidence. The
learned Judge has committed error in appreciating the Application on the
ground that for recording evidence, the Court atmosphere should be
available otherwise the witness may not give answers instantly and there
is no scope to observe her demeanour. He submitted that the
petitioner/wife is serving in U.S. and looking after minor daughter, so it is
not convenient for her to come to India. He submitted that her
application be allowed. In support of his submission, the learned counsel
relied on the following judgments:
(i) Judgment of the Supreme Court in the case of State of
Maharashtra vs. Praful B. Desai, reported in AIR 2003 SC
2053.
(ii) Judgment of Calcutta High Court in the case of Amitabh
Bagchi vs. Ena Bagchi, reported in AIR 2005 Calcutta 11.
4. The learned counsel for the respondent opposed the Application
and supported the order of the trial Judge. He submitted that the Court
will be deprived of an opportunity to observe demeanour of the witness
which is necessary to arrive at correct conclusion. He submitted that
physical appearance of a witness is necessary for the smooth going of the
trial. There is no special circumstance that the Application of the
petitioner for recording of evidence through video conferencing was to be
allowed. He further submitted that the family of the petitioner resides in
Pune. The reasons given by the petitioner/wife that it is expensive to
travel is not acceptable, as she is drawing good salary in US. Therefore,
adjudication of the matter and evaluation of the evidence is possible if the
parties are present physically before the Court.
5. At the outset there is a substance in the Writ Petition. The
petitioner/wife has moved an Application for recording of evidence
through video conferencing because she is working in U.S. She has a
minor daughter aged about 6 years and stays with her. It is a different
and distant country. Travelling to and fro from U.S. to India is
undoubtedly financially expensive so also it is difficult for a mother of 6
years old girl to arrange the logistics. Though in the Application only
financial difficulty and inconvenience is mentioned, it is necessary to
understand what kind of inconvenience a mother of 6 years old child can
face if she has to travel from U.S. To India to give evidence. Moreover she
is a working lady and may face difficulty in getting leave and may be some
hurdles in VISA. Hence, the Application for video conferencing is justified
on all counts.
6. The learned Judge of the Family Court has lost sight that recording
of evidence with the help of electronic methods and techniques is
acknowledged and recognized in the judicial system. In the case of
Amitabh Bagchi vs, Ena Bagchi (supra), wife was in India and husband
remained in U.S. When there was an issue of maintenance between the
parties, the husband made application before the Court for examining him
through video conferencing. The Court has allowed the Application and
also gave directions when the evidence was to be recorded by video
conferencing by the trial Court.
7. In the case of State of Maharashtra vs. Praful B. Desai, though the
issue before the Court was in respect of interpretation of section 273 of Cr.
P.C. wherein the the meaning of the phrase “in the presence of accused”
was discussed and section was interpreted. In the said judgment the
Court has approved the principle of updating construction. Advancement
of new techniques and skills are introduced in daytoday
life. Over a
period of time new technologies are introduced in the daytoday
life,
however, speed and frequency of the change in law does not
commensurate to speed in the change of science and technology. The
process of change and amendment in law is tedious and lengthy. On the
other hand, the technology introduces new machines, techniques and
facilities very speedily. For eg.: document earlier was restricted to paper
or inscriptions, writing on paper like material, however, the document
today includes database in computer. In the said judgment, the Supreme
Court has reproduced valuable observations of Justice Bhagwati in the
case of National Textile Workers' Union vs. P.R. Ramakrishnan at page 256
as follows:
“We cannot allow the dead hand of the past to stifle the growth of
the living present. Law cannot stand still it must change with the
changing social concepts and values. If the bark that protects the
tree fails to grow and expand along with the tree, it will either
choke the tree or if it is a living tree, it will shed that bark and
grow a new living bark for itself.”
8. It is to be noted that our legislature has wisely taken note of this
fact and accordingly has made the changes in the Evidence Act by
amending Section 65 and thereby section 65A, 65B are inserted on the
point of recording of evidence relating to electronic record and
admissibility of electronic record. When the legislature has expanded the
scope of term 'Evidence' acknowledging advance technology and scientific
methods used by people in their daytoday
activities, it is the duty of the
Judicial officers to put life to those letters of law by interpreting them
effectively.
9. An Attitudal change in Judges is required. We need to train
ourselves to understand the pulse of the new generation who is avidly
technosavvy. Though it is difficult for the Judges, especially who are in
their middle age, to accept and digest the entry of new language and
methods of evidence in the established judicial system, it is high time for
us to change our mind set and see whether this new technology can help
us to increase the speed and also we have to take into account the
convenience of the parties as our judicial system is necessarily litigant
centric.
10. The presence of the person can be obtained physically so also
virtually. What is important is that a person should be seen and be heard
and vice versa. These are the methods of distant communication, which is
possible by virtual measures and microspeakers. Therefore, it is not
necessary for the Judge to insist for the physical presence of the witness
when it is not possible especially in the circumstances of this case, a
virtual presence can be secured which is very much legal and for this
purpose, it is not necessary for the Judge himself to give time but such
evidence can be recorded by appointing Commissioner. Hence, I set aside
the order passed by the Judge and allow this Application of Appointment
of Commissioner to record the evidence.
11. Rule is made absolute on the following terms:
(i) The Family Court to appoint any retired Judge as a Court
Commissioner to record the evidence of the petitioner/wife by
crossexamination
through video conferencing. I suggest the
name of retired Judge Mr. J.L. Deshpande subject to his
availability. However, it is the discretion of the Judge of
Family Court.
(ii) It is to be noted that besides this, the learned Judge of the
Family Court may direct the petitioner to appear before
him/her through video conferencing, if the Family Court Judge
wants to put some questions with a view to ascertain any fact
in the evidence.
(iii) The petitioner shall submit her affirmed copy of the affidavitinchief
on or before 30th September, 2014 and unaffirmed
copy of the said affidavit is to be handed over to the
respondent on or before 25th September, 2014.
(iv) The Commissioner to record crossexamination
of the
petitioner maximum for 8 hours which may spread over not
more than six working hours and it is to be recorded till 30th
October, 2014 as per the convenient time and place of the
Commissioner. The charges of the Commissioner so also the
cost of the commission including expenses of video
conferencing is entirely to be borne by the petitioner/wife.
(v) The crossexamination
preferably should not exceed more than
8 hours. The Commissioner to be paid Rs.5,000/per
hour
plus the cost of commission and cost of video conferencing.
(vi) If the District Court is in a position to make available video
conferencing facility to the parties and the Commissioner, then
on payment of charges without causing any inconvenience to
the District Court, the video conferencing may be held in
District Court.
(vii) Copy of the order may be produced before the District Judge.
(MRS.MRIDULA BHATKAR, J.)
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