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Citation Codes
Equivalent Citations
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Case Number
Advocates
  • Mr. P.G Lad for the Petitioner
  • Mr. R.P Desai for Respondent
Judges
  • Mridula Bhatkar, J.
Acts
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. P.G Lad for the Petitioner
  • Mr. R.P Desai for Respondent
Judges
  • Mridula Bhatkar, J.
Acts
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Smart Summary

Factual and Procedural Background

The Petitioner-husband filed a petition for divorce on the ground of cruelty (A-2687 of 2010) before the Family Court, Mumbai. During the pendency of this petition, both parties decided to resolve their matrimonial dispute amicably and sought to convert the petition under Section 13(1)(ia) of the Hindu Marriage Act into a petition for divorce by mutual consent under Section 13B. The Petitioner continued residing in Mumbai, while the Respondent-wife relocated to New Jersey, U.S.A. The Respondent's father, holding a power of attorney, represented her in court. The Family Court rejected the request to convert the petition on the ground that the Respondent was absent and counselling had not taken place, making it unsafe to accept the consent terms without verifying the actual position. The parties then requested verification of the Respondent's consent via video conferencing, which was denied due to lack of infrastructure, prompting the parties to approach this Court for relief.

Legal Issues Presented

  1. Whether a petition filed under Section 13(1)(ia) of the Hindu Marriage Act can be converted into a petition for divorce by mutual consent under Section 13B despite the physical absence of one party due to practical difficulties such as residing abroad.
  2. Whether the Court can accept virtual presence and video conferencing as a valid means to verify the identity and consent of a party in matrimonial proceedings.
  3. Whether counselling by a Marriage Counsellor can be conducted via virtual means to satisfy procedural requirements in family law matters.

Arguments of the Parties

Petitioner-Husband's Arguments

  • The parties agreed to convert the divorce petition filed on cruelty grounds into a divorce by mutual consent petition under Section 13B.
  • Due to the Respondent's residence in the U.S.A., physical presence before the Family Court was not feasible.
  • Requested video conferencing to verify the Respondent's consent and facilitate counselling, which was rejected by the Family Court.

Respondent-Wife's Arguments

  • Represented through her father holding power of attorney.
  • Consent terms and requests for conversion were filed through counsel and the power of attorney holder.
  • Supported the request to verify consent and conduct counselling via video conferencing.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court recognized that conversion of a petition under Section 13(1)(ia) to a petition under Section 13B is legally permissible and there is no legal impediment to such conversion. The Court acknowledged the general requirement for physical presence of parties to verify identity and consent but noted the practical difficulties arising from globalisation, where parties may reside abroad and cannot physically appear. The Court emphasized that these difficulties can be overcome by utilizing modern technology such as video conferencing and virtual presence. It held that the Court can rely on virtual presence to verify and confirm mutual consent and conduct counselling sessions. Consequently, the Court directed the Family Court to arrange video conferencing facilities to enable the Marriage Counsellor to interact with the Respondent remotely, with identification assistance from the Respondent's father. The Court also directed the Family Court to verify and record consent online and scheduled a date for the parties to appear to facilitate these arrangements. The parties were instructed to provide necessary technical equipment at their own cost.

Holding and Implications

The writ petition is allowed and the rule is made absolute.

The Court's decision permits the use of video conferencing and virtual presence to verify consent and conduct counselling in matrimonial proceedings where physical presence is impractical. This enables parties residing abroad to participate effectively in family court processes. The Family Court is directed to implement these measures, and the parties must cooperate by providing required technical resources. No order as to costs was made. The decision directly affects the parties by allowing the conversion of the petition under Section 13B after virtual verification of consent but does not establish a broader binding precedent beyond the immediate case.

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    Mr. Mukesh Narayan Shinde Petitioner v. Mrs. Palak Mukesh Shinde Nee Palak D. Patel

    Judgment:-.

    Rule. Rule made returnable forthwith. Learned Counsel for the Respondent waives service. By consent, heard finally at the stage of admission.

    2. The Petitioner-husband has filed a Petition for challenging the order dated 7th February, 2012 passed by the learned I/c Principal Judge of the Family Court, Mumbai.

    3. Learned Counsel for the Petitioner and the Respondent are present. Both the Counsel submit that the Petitioner-husband filed a Petition for divorce on the ground of cruelty which is numbered as A-2687 of 2010. During the pendency of Petition, the parties have decided to solve their matrimonial dispute amicably. Therefore, they took a decision to convert a Petition filed under Section 13(1)(ia) to a Petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955.

    4. The Petitioner-husband is residing in Mumbai. The Petitioner and the Respondent resided last in Mumbai. Therefore, the Petition filed is within jurisdiction of the Family Court, Mumbai. The Petitioner-husband continued to stay in Mumbai, however, the Respondent-wife left Mumbai and at present she is residing at New Jersey, U.S.A Mr. Dineshbhai Patel-father of the Respondent-wife is a power of attorney holder for the Respondent-wife. Parties through their Counsel and through the Power of attorney holder filed consent terms and requested the Court to convert the Petition under Section 13B of the Hindu Marriage Act. However, the request was rejected by the Court holding that the Respondent was absent throughout and counselling was not taken place in that matter. Therefore, the Court felt it not safe to accept the consent terms and did not allow the conversion for want of verifying the actual position.

    5. Learned Counsel for both sides submit that they requested the Court to verify the consent of the Respondent-wife by video conferencing. As infrastructures are not available, the said request was turned down. The parties approached this Court for relief.

    6. Conversion of Petition filed under section 13(1)(ia) into a Petition under Section 13B for mutual consent is legally permissible. Thus, there is no legal hurdle into conversion of the Petition into a Petition for mutual consent. The physical presence of both the parties is generally asked and necessary to verify the authenticity of the identity of the parties and consent of the parties. However, there are peculiar circumstances like the case in hand where either of the parties cannot remain present before the Court due to certain practical difficulties i.e Job, leave, visa etc. due to globalisation noticeable educated young persons are crossing the borders of India and they are taking up jobs outside the country. So some of them can not remain present before the Family Court to give consent in matrimonial matters. There is no illegality to solve such difficulty by adopting novel and available ways. This hurdle can be crossed with the help of advanced technology of communication and new scientific methods. Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent. Even though, the counselling with the Marriage Counsellor can be facilitated by virtual presence.

    7. Thus, the learned Judge of the Family Court is directed to arrange a video conference of the Marriage Consellor with the Respondent-wife in the Court with the help of Computer/Lab top or by using of webcam. The father of the Respondent-wife shall identify the Respondent-wife. The online counselling can be done with the help of webcam. Thereafter, the learned Judge of the Family Court shall verify and record on-line consent with the help of webcam and laptop/computer. Parties to appear before the Family Court on 31st March, 2012 at 11 O' clock to enable the Judge of the Family Court to give direction to make necessary arrangements for E-counselling and E-verification by video conference.

    8. The matter is already fixed on 9 April, 2012 in the Family Court. The parties are directed to provide a laptop/web cam and other logistics required for this video conference of their own costs.

    9. Writ Petition is allowed. Rule made absolute, accordingly. No order as to costs.

    10. The parties to act on an authenticated copy of this order.

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    Comments

    Mr. Mukesh Narayan Shinde Petitioner v. Mrs. Palak Mukesh Shinde Nee Palak D. Patel
    (Mar 28, 2012)