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 IIIrd 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 ha