In a significant step, a Bench of Justices Kurian Joseph and R Banumathi has directed that the order of the Supreme Court in Krishna Veni Nagam v. Harish Nagam, mandating use of video-conferencing in matrimonial disputes, should be reconsidered.
The order, which was passed on August 9, states that the order in Krishna Veni Nigam was passed without the Court having been furnished with “required information.”
“Having due regard to the nature of family disputes sought to be addressed by the Parliament, we are afraid, the Court in Krishna Veni Nagam (supra) has not been furnished with the required information, before passing the order.”
The Court proceeded to cite the provisions in Family Courts Act, Code of Civil Procedure and Hindu Marriage Act to stress upon the need for reconciliation.
“It seems, none of these mandatory procedures as laid down by the Parliament have been brought to the notice of the Court while considering the case of Krishna Veni Nagam (supra). The principal thrust of the law in family matters is to make an attempt for reconciliation before processing the disputes in the legal framework. Reconciliation is not mediation. Neither is it conciliation. No doubt, there is conciliation in reconciliation. But the concepts are totally different. Similarly, there is mediation in conciliation but there is no conciliation in mediation.”
The Court also alluded to the role of a counsellor in a Family Court stating
“The role of a counsellor in Family Court is basically to find out what is the area of incompatibility between the spouses, whether the parties are under the influence of anybody or for that matter addicted to anything which affects the normal family life, whether they are taking free and independent decisions, whether the incompatibility can be rectified by any psychological or psychiatric assistance etc. The counsellor also assists the parties to resume free communication.”
It observed that the confidence and confidentiality may not be protected in video conferencing during such counselling sessions.
“To what extent the confidence and confidentiality will be safeguarded and protected in video conferencing, particularly when efforts are taken by the counsellors, welfare experts, and for that matter, the court itself for reconciliation, restitution of conjugal rights or dissolution of marriage, ascertainment of the wishes of the child in custody matters, etc., is a serious issue to be considered. It is certainly difficult in video conferencing, if not impossible, to maintain confidentiality. It has also to be noted that the footage in video conferencing becomes part of the record whereas the reconciliatory efforts taken by the duty-holders referred to above are not meant to be part of the record. All that apart, in reconciliatory efforts, physical presence of the parties would make a significant difference.”
The Court therefore, ordered that the directions in Krishna Veni Nagam needs reconsideration by a larger Bench.
“Having regard to the very object behind the establishment of Family Courts Act, 1984, to Order XXXIIA of the Code of Civil Procedure and to the special provisions introduced in the Hindu Marriage Act under Sections 22, 23 and 26, we are of the view that the directions issued by this Court in Krishna Veni Nagam (supra) need reconsideration on the aspect of video conferencing in matrimonial disputes.
Therefore, we are of the view that the matter requires consideration by a larger Bench. The Registry is directed to place the papers before the Hon’ble Chief Justice of India.”
The order passed in Krishna Veni Nagam, by a Bench of Justices AK Goel and UU Lalit, in March this year had mandated use of video conferencing facilities in matrimonial disputes before filing transfer petitions etc. Based on the said order, the Supreme Court has been disposing of transfer petitions without going into the merits of such petitions.
With the August 9 order of Justices Kurian Joseph and R Banumathi, the issue will now have to be settled by a larger Bench.
