IMPORTANT POINT
The court upheld the Family Court's decision to deny video conferencing for evidence recording, citing lack of legal provision and the petitioner's failure to appear in person.

JUDGMENT :

(Subhash Vidyarthi, J.)

1. Heard Sri Saksham Agarwal, learned counsel for the petitioner and Sri Saurabh Misra, learned counsel for the opposite party.

2. By means of the instant petition filed under Article 227 of the Constitution of India, the petitioner has challenged the validity of an order dated 06.09.2023 passed by the learned Additional Principal Judge-IV, Family Court, Lucknow in Case No.440 of 2019 under Section 13 of the Hindu Marriage Act. The petitioner has further prayed for issuance of a direction to the Family Court to record her evidence through video conferencing or through her power of attorney holder.

3. Briefly stated, facts stated in the petition are that marriage of the parties was solemnized on 11.02.2008 at New Delhi. Out of the wedlock between the parties, a daughter was born on 15.02.2011 at Belfest, Northern Ireland and a son was born on 14.02.2013 in Scotland. The petitioner is a British citizen and she is domicile of United Kingdom. The respondent also had the intention to settle in the United Kingdom but he could not qualify the entrance examination required for medical practitioners to obtain employment in United Kingdom and consequently, he returned to India. The petitioner is residing in Scotland along with both her minor children and she is currently employed in N.H.S. Grampian, as a Consultant Psychiatrist at Westholme Woodend Hospital, Scotland.

4. The opposite party has filed the aforesaid suit for a decree of divorce on 07.02.2019. On 28.01.2020, the petitioner filed an application in the suit stating that she is residing in United Kingdom and she has executed a power of attorney in favor of her mother, who would represent the petitioner in the suit. The power of attorney dated 08.07.2019 filed before the Family Court authorizes the petitioner’s mother to prosecute the suit and proceedings, to sign and verify all the pleadings, applications and documents etc., to enter into a compromise in the suit and to appear before the Family Court at the first motion and the second motion in a petition for mutual consent and generally to do all other acts and things for conduct of the suit, as the petitioner could have done herself if she was personally present.

5. The plaintiff-opposite party had filed objections against the aforesaid application but the petitioner’s application was allowed by means of an order dated 02.03.2020 passed by the Family Court permitting the petitioner to participate in the proceedings through her power of attorney holder subject to the condition that upon being directed, the petitioner shall appear before the Court in person.

6. The written statement filed in the suit has been signed and verified by the power of attorney holder of the petitioner. The plaintiff-opposite party has been examined as PW-1 and thereafter, the petitioner filed an application in the suit requesting for recording of her evidence through video conferencing or to allow her power of attorney holder to physically appear and give evidence on behalf of the petitioner. The said application has been rejected by the impugned order dated 06.09.2023 for the reasons that there is no law laying down the procedure for recording evidence of a person from some other country through virtual mode and that there is a time difference of six hours between India and United Kingdom. The petitioner has not disclosed the name of the Court of United Kingdom, in which she will be physically present for getting her statement recorded through virtual mode and the Family Court also does not have any list of such Courts of United Kingdom, where the petitioner can be directed to be present for recording of her evidence. While allowing the petitioner’s application for being represented through her power of attorney holder, the Family had granted permission to the petitioner to be represented through her power of attorney subject to the condition that the petitioner will appear in person before the Court whenever directe