Divorce through Video Conferencing

“The purpose of the Constitution is, no one should be deprived of justice in any situation, thus our judiciary always supports changes as per the situation and keeps amending the laws in the interest of justice served through its verdicts or guidelines. The recent ruling of the Supreme Court regarding Divorce through video conferencing exemplifies this optimistic ideology. This article describes all these points taking into account the situation created by covid pandemic.”

Indian Judiciary always supports innovative and new ideas in legal system. It believes in theory of change according to time and need, whether it’s about court proceedings or any other legal code. During the period of Covid-19 pandemic, like most courts, family law and court practices were affected a lot as the physical presence of the parties in court wasn’t feasible. The Indian judiciary accepted a solution which broke the stereotype of proceedings and in a matter of first, a Delhi Family Court granted mutual consent divorce to a couple by conducting the whole proceedings through video conferencing. The Supreme Court of India directed a trial in matrimonial dispute be held via video conferencing due to pandemic lockdown in the case of Anjali Brahmawar Chauhan V. Navin Chauhan,2021. Before the pandemic it may have been difficult to think about the effectiveness and feasibility of a video conferencing court procedure but now, it’s been almost 2 years since the online court system is running and people are more comfortable and happier with this relaxed virtual court procedure.

Background of Divorces via Video Conferencing

• First time in the case of AmardeepSingh V. Harveen Kaur,1994 Supreme Court mentioned the conduction of proceedings virtually using video conferencing The court concluded its decision that waiving the cooling-period off is not mandatory but only directory under the Hindu Marriage Act.
• The case of Krishna Veni Nigam V. Harish Nigam, 2017, is a valid defense for husbands for defending the transfer petition in the court. The bench of Justice A.K Goel and UU Lalit allowed the petition and transferred the divorce matter from one state to another.
  During the pendency of this case court observed that just transferring a case from one place to another is not a solution and said, “This court is flooded with petitions of this nature and considering the convenience of the wife, a transfer is normally allowed. Court also observed that it's unfair to a husband as well who will bear all the inconvenience because of this transfer order.” Thus, the supreme court decided to conduct video conferencing in matrimonial dispute cases to reduce the drudgery face by husband or wife and to save their time and money in travel.
  Supreme Court stated a different view in this case, than the case of Anindita Das V. Srijit Das, 2006 where , Supreme Court upheld the transfer of matrimonial cases.
• Hence, in the case of Krishna veni Supreme Court stated- “ We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, court directed to high courts to pass administrative directions to district and lower courts to open their video conferencing facilities” The court said, such video conferencing hearing will be allowed only at the request of both parties.

Reasons for hearing the matter through Video Conferencing

1. According to the reports from the National Judicial Data Grid and the Supreme Court, at present there are 3.9 crore divorce cases pending in the district and subordinate courts, 58.5 lakh cases in the various high courts, and more than 69,000 matrimonial disputes cases in the Supreme Court. There is a need to expedite their processing and the transfer request is one of the key factors which consumes a lot of time for approval.
2. The approval or rejection of a transfer request is not a guaranteed resolution for both the parties. To maintain equality amongst the parties and remove disparity, video conferencing is a viable tool.
3. In the wake of the covid 19 pandemic, when physical presence in a courtroom wasn’t feasible, an alternative strategy was required to sustain the working of court and video conferencing is the best alternative for the same.
4. The absence of a physical audience is better for both the parties where they can answer the personal questions without hesitation.

Validity of the Divorce through Video Conferencing

In today’s scenario, pertaining to the rulings of the Supreme Court, one can apply for the transfer of case from one state to another state. However, in order to conduct video conferencing hearings both parties need to apply before court with mutual consent.

At the same time if any matter is in the same state of an applicant residence but it’s in different jurisdiction, and the distance is commutable then court can dismiss the application of transfer. Court can direct its subordinate court to conduct video conferencing hearings based on application of parties with mutual consent. This is also permissible in different circumstances like the covid pandemic or any other reason if court believes in the validity of the situation.

Divorce- Mutual Consent through Video Conferencing

Generally, the process of getting a divorce is not that straight forward and easy since divorces in India are still considered a social stigma. Rather every effort is made to keep the marriage alive. Hence, during the process of divorce, the parties for mediation are encouraged to discuss among themselves and resolve the grievances and reach some middle ground to save the marriage or dissolve it.

But now it has been made easy through Mutual Consent Divorce where the court is of the opinion that if both the parties have decided to divorce after considering themselves, then the court will consider it as mutual consent divorce. The prerequisites for Mutual Consent Divorce are to ensure that the couple has been living separately for at least 1 or 2 years and they do not want to live together any longer. The process is much more inexpensive and easier than contested divorce, and the issues related to children's custody, alimony or maintenance and property rights can be agreed mutually too.

Stating a bit more about video conferencing acceptance, in the case of State of Maharashtra V Dr. Praful Dubey ,2003 where the supreme court discussed the meaning of the term 'Presence' as used in the section 273 of CRPC, refers not to the physical presence, but the general availability of the witness to the court, and since presence in this modern era can be guaranteed with technologies even without physical presence and video conferencing is an agreeable replacement for the same.

Stating more, the Indian Judiciary gave a landmark judgment of Krishna Veni Nigam V. Harish Nigam in the year 2017 and permitted the mutual consent divorce through video conference.

Impact of Covid-19 on Video Conferencing cases

• Everything was under lockdown during the period of the covid pandemic. Despite of this, the courts were still working, and proceedings and urgent hearings were going on online. Courts used the technologies and continued proceedings with audio and video conferencing instead of physical appearance in courtrooms.
• According to a report, the cases of matrimonial disputes had increased a lot during the lockdown and people who desired a separation were looking for some a solution to legally advance the proceedings of divorce online. Thus, the order of Supreme Court was to start conducting hearings and trial through video conference on matrimonial dispute cases which helped a lot of people.
• A bench of Supreme Court, CJI Justice S.A. Bobde, Justice L Nageswara Rao and Justice Vineet Saran on 22-01-2021 made an exception in the previous ruling of Santhini case 2017 and gave order to subordinate courts to conduct a video conferencing trial during pandemic period of Covid 19 in the case of Anjali Brahmawar Chauhan V. Navin Chauhan,2021.

 

Conclusion

Like marriage, divorce also is the part of society and legal industry. One must try to resolve the issue with their spouses by different means of mediation process, conciliation etc. and try to find a middle solution where they can agree to reconcile the marriage. However, if they are unable to save the marriage and do not want to live together with mutual consent, the method of Mutual Consent Divorce is appropriate where the courts, with their legal aid, give you freedom from a non-working marriage. Video conferencing hearings have had a long journey by eliminating the hassle of physical appearance in court in matrimonial disputes and have now been technically accepted by our courts. Although its practice is very old in many countries, but in India it was stamped by the Covid 19 pandemic. However, it is better to fight divorce cases between strangers through video conferencing rather than in crowded courtrooms, where personal questions arising in courtroom appearances reveal a hesitation between the parties. With the different cases and judgments, we can see the flexibility of our judicial system which evolves with time and empowers us with the option of easy disposal of non-workable marriages.