Exceptional circumstances, such as permanent residency in a foreign country and visa restrictions, may warrant the use of advanced technology, such as video conferencing, for court proceedings.

ORDER :

With the consent of learned counsel for the parties, the matter is finally heard.

2. By this petition preferred under Article 227 of the Constitution of India, the petitioner/wife has challenged the order dated 23.11.2023 passed in HMA No.2175/2023 by the IIIrd Additional Principal Judge, Family Court, Indore, whereby the joint application made by both the parties for permitting appearance through video conferencing has been rejected.

3. The facts in brief are that the petitioner and the respondent have filed a joint application under Section 13-B of the Hindu Marriage Act, 1955 before the Family Court for dissolution of their marriage by grant of a decree of divorce. It has been stated in the application that the petitioner is a resident of U.S.A and is the daughter of Smt. Aparna wife of Suresh Pathak and has executed a special power of attorney in her favour at U.S.A. on 01.06.2023 for filing the petition on her behalf along with the respondent under Section 13-B of the Act, 1955.

4. Thereafter, an application was jointly filed by the parties for carrying out the proceedings of reconciliation between them through video conferencing. It was stated in the application that the petitioner is residing in U.S.A. permanently and is not able to come to Indore for recording of her statement and is not getting permission to travel to India for recording of her evidence. By the impugned order, the Family Court has rejected the prayer for conducting the mediation/reconciliation proceedings through video conferencing and has directed the parties to remain present in person for the said purpose.

5. 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.

6. Learned counsel for the respondent has not opposed the submissions made by the petitioner and has supported the prayer made by her.

7. I have heard the learned counsel for the parties and have perused the record.

8. 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.”

9. Even in the case of Santini (Supra) the Supreme Court has not prohibited recording of preliminary evidence on an application under S