ORAL ORDER
1. By way of the present petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"8A. Be pleased to pass appropriate Direction, Order and/or writ quashing and setting aside the Order dt. 02.04.2024 below Exh.53 in Civil Misc. Application No.58 of 2023 before the Learned Family Court, Ahmedabad and thereby be pleased to permit the petitioner to appear through video conferencing mode in cross examination by appointment of court commissioner in Civil Misc. Application no.58 of 2023 before the Learned Family Court, Ahmedabad (At Annexure P1, to this petition)
B. Pending Admission, Hearing and final disposal of the present application, be pleased to stay the
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undefined Order dt. 02.04.2024 below Exh.53 in Civil Misc. Application No.58 of 2023 before the Learned Family Court, Ahmedabad. (At Annexure P1, to this petition);
C. Pending Admission, Hearing and final disposal of the present application, be pleased to stay the proceedings of Civil Misc. Application no.58 of 2023 before the Learned Family Court, Ahmedabad;
D. Be pleased to pass any other and further orders as may be deemed fit and proper to this Hon'ble Court.
2. Considering the facts and circumstances of the case and with consent of learned advocates for the parties, this matter is taken up for final disposal.
3. Heard learned advocate for Mr.Shyam Shah for the petitioner and learned advocate Mr.Rajpurohit Bhawarlal for the respondent.
4. Rule returnable forthwith. Learned advocate Mr.Rajpurohit Bhawarlal waives service of notice of rule for and on behalf of respondent.
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5. Brief facts narrated in the present petition are as under:-
5.1 The petitioner-wife and respondent-husband were residing in the USA for 6 years with their daughters namely Jayni Shah and Priya Shah, aged about 12 years 11 years respectively.
5.2 On January 17, 2023, respondent took the daughters to India without informing the petitioner. As a result, petitioner initiated legal proceedings for custody in Fairfax Court, Virginia, which granted emergency custody on February 28, 2024, and a final custody order in April
2024.
5.3 Thereafter, petitioner filed Special Criminal Application No.3872 of 2023 before this Hon'ble Court seeking a writ of Habeas Corpus for the custody of minor children. During the course of hearing of the aforesaid
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undefined application, multiple attempts at mediation were made.
5.4 The petitioner visited India three times in 2023:
April 5-9, April 19-May 10, and September 27-October 9, but was allowed only supervised meetings with the children. The case was eventually referred to the Family Court in Ahmedabad, where the respondent filed a claim for custody in Civil Misc. Application No. 58 of 2023.
5.5 On January 29, 2024, petitioner attended the Family Court, but Court was on leave, and the matter was adjourned to February 1, 2024. Despite her presence on 01.02.2024 to 07.02.2024, Family Court was unavailable. Petitioner requested Principal Judge to conduct the cross- examination, but Principal Judge denied such request and therefore, hearing was rescheduled for February 8, 2024. On February 8, 2024, Family Court was again unavailable, petitioner's job leave had expired and her extension for
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undefined further leave was refused. Therefore, the petitioner was constrained to return to USA on February 10, 2024.
5.6 On February 12, 2024, petitioner filed an application to conduct cross-examination through video conferencing. On 17.02.2024, cross-examination of petitioner, did not start until 3:10 p.m. and on that day, parties agreed for mediation but mediation attempts between the parties failed.
5.7 On February 19, 2024, case was transferred from Court No.1 to Court No.4, and hearing was adjourned to March 6, 2024.
5.8 Thereafter, petitioner filed application for permission to appear in cross-examination through video conferencing, which came to be rejected on 02.02.2024 and ordered that respondent will bear the expenses for one
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undefined way travel and cross examination of the petitioner is required to be completed in two days.
5.9 As the request of hearing cross-examination through video conference is rejected, petitioner-wife is before this Court.
6. Learned advocate for the petitioner submitted that the petitioner- wife is residing and working in U.S.A. with International Federal Credit Union (a Government Company). It is submitted that the petitioner visited India five times, and out of which, 2 times attempted Court proceedings for cross-examination, and 3 times during Habeas Corpus proceedings before this Court.
6.1 It is submitted that the petitioner had preferred Special Criminal Application No.3872 of 2023 before this Court, wherein this Court has directed the learned Family Court to complete the Civil Misc. Application No.58 of
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undefined 2023 within a period of 3 months from 02.11.2023. However, within the time framed, the proceedings could not be decided by the learned Family Court. It is further submitted that the petitioner stayed in India from 28.01.2024 to 10.02.2024. On 10.02.2024, petitioner left India to USA. It is submitted that on two occasions, learned Family Court was on leave, and therefore, cross- examination could not be taken up. Learned advocate for the petitioner also requested before the learned In-charge Court to take up the matter for cross-examination. However, the matter was kept in regular hearing and the Cross-examination could not be taken up. Petitioner came to India on 15.03.2024 for 36 hours to get her Cross- examination complete.
6.2 It is submitted that On 12.02.2024, an application below Ex.46 came to be filed by the petitioner seeking an appointment of the Court Commissioner to record the
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undefined cross-examination through video conferencing. However, the said application was withdrawn on 15.02.2024 as the petitioner was present in the Court for cross-examination and the learned Family Court on 15.02.2024 passed an order that since the husband was ready to bear one way Air Ticket of the petitioner-wife. Resultantly, application was disposed of. It is further submitted that, on 15.02.2024, petitioner was Cross-examined before the learned Family Court. But the Cross-examination could not be completed. Thereafter, because of the job constraints, petitioner has returned to USA. Thereafter, the present petitioner filed Ex.53 application seeking the same prayer.
6.3 It is submitted that, on 15.02.2024, when the petitioner wife remained present for cross-examination, the cross-examination started at 3.10 p.m. and continued till
5.30 p.m. However, the cross-examination could not be completed on the ground of settlement. The learned Family
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undefined Court tried to mediate between the parties on the same day but the settlement could not be arrived and the matter was placed on Board on 19.02.2024 for further cross- examination. However, by way of office order, the matter was transferred to another Presiding Officer and the matter was not taken up on 19.02.2024 and it was adjourned to 06.03.2024 for further Cross-examination. After the transfer order, petitioner left for U.S.A on the same day. It is submitted that the learned trial Court has miss-interpreted the statutory Rules and orders framed by the High Court. It is further submitted that under Rule No.5.2 & 5.3 which are reproduced hereunder:-
"5. Preparatory Arrangements 5.1…...
"5.2. In the civil and criminal Courts falling within the purview of the district judiciary, persons nominated by the High Court or the concerned District Judge, shall perform the functions of Coordinators at the Court Point as well as the Remote Point as provided in Rule 5.3.
5.3 The Coordinator at the Remote Point may be any of the following:-
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| undefined |
| Sub Rule |
Where the Advocate or Required Person is at the following Remote Point:- |
The Remote Point Coordinator shall be:- |
| 5.3.1 |
Overseas |
An official of an Indian Consulate/the relevant Indian Embassy/the relevant High Commission of India |
| 5.3.2.. |
…... |
|
6.4 Learned advocate has also relied upon Rule 5.6 and Rule 8.2 in support of the contentions. It is further submitted that the decision of Santhini vs. Vijaya Venketesh reported in 2017(0)AIJEL-SC 60965 has wrongly been applied by learned Family Court to the present case.
6.5 Learned advocate for the petitioner has submitted that the Hon'ble Apex Court was dealing with an issue of transfer petition, and in para 56, the Hon'ble Apex Court has observed as under:-
"56. In view of the aforesaid analysis, we sum up our conclusion as follows:-
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(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera
(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through video conferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that video conferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent
6.6 It will be the discretion of the Court to consider the request of hearing through video conferencing. Learned advocate for the petitioner has relied upon the decision of Kishan Chand Jain v. Union of India reported in 2023(0) AIJEL-SC 72686. In para 18, 19 and 21, the Hon'ble Supreme Court has observed as under:-
"18. The RTI Act provides for setting up of Information Commissions for providing effective access to justice to citizens to agitate their grievance of perceived breaches of the right to information by public authorities. Under the scheme
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undefined of the RTI Act, any person aggrieved by the denial of information under Section 7 can approach the SICs to seek redressal. In more than one way, the SICs are authorities empowered to redress and remedy the grievances of citizens.
19. Access to justice is a right of constitutional purport which signifies that individuals have effective means to approach legal institutions to seek appropriate legal remedies. The ability to access legal institutions empowers individuals to understand and exercise their legal and constitutional rights. Access to justice enhances the quality of human life and, therefore, is an important facet of right to life under Article 21. In Anita Kushwaha v. Pushap Sadan, (2016)8 SCC 509 a Constitution Bench of this Court held that access to justice is also a facet of Article 14, which guarantees equality before law and equal protection of laws to both the citizens and non-citizens alike. As a result, the inability of any person to access courts or any other adjudicatory mechanism provided for determination of rights and obligations due to institutional inadequacy is bound to result in a denial of right to equality.
21. The recent technological advancements in terms of video-conferencing must be used to promote inclusion of people living in remote areas within the fold of the justice delivery mechanism. Physical courts require the litigants and parties living in remote areas to travel long distances to appear before the court. With increasing costs of travel and other related expenses, video- conferencing solutions provide a cost-effective and efficient alternative to the physical courts. Technology allows us to create and use a "virtual
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undefined courtroom" which is as real as any physical courtroom. In more than one-way, virtual courts democratize our legal processes by expanding the courtroom area beyond the walls of the courtroom. In Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639 it was observed that technological solutions can be a tool to actualize the right of access to justice by providing virtual entry to the litigants in the courtroom. However, virtual courtrooms are not just restricted to allowing litigants to virtually enter courtrooms; they also allow citizens to participate effectively in the court proceedings. The transcendental effect of technology is not only to further the constitutional right of individuals to access justice, but it also strengthens the rule of law and democracy.
6.7 It is further pointed out by the learned advocate for the petitioner that the apprehension which has been raised by the respondent and which has been upheld by learned Family Court in dismissing the application has been taken care of in Rule No.5.6. The said Rule gives a power to the Coordinator at the Remote Point to ensure that the person being examined is not prompted, tutored, coaxed, induced or coerced in any manner by any person and that the person being examined does not refer to any
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undefined document, script or device without the permission of the concerned Court during the course of examination. When the apprehension which has been canvassed by the respondent - husband has been taken care of in Rule No.5.6, the learned Family Court ought not to have rejected the application.
6.8 It is further pointed out that the learned trial Court has rejected the application on the ground that due to difference of time zone, it will not be possible to appear through video conferencing as it may be a night time in USA when the matter is placed for hearing in India. On such apprehension, learned advocate for the petitioner has submitted that the petitioner is ready and willing to appear at any time through video conferencing as per the direction of the learned Family Court.
6.9 The third reason which has been assigned by the learned Family Court in rejecting the application is that
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undefined the respondent - husband has not given consent for video- conferencing. It is submitted that the intention of the Respondent - husband is just to harass the petitioner and wants to see that the right of cross-examination is closed, and resultantly, the oral testimony of the petitioner-wife is struck off.
6.10. The petitioner is in service at USA Government Agency and it does not have the flexible policy so far as the frequent leave is concerned. Because of I.T. Protocol, the petitioner is not allowed work from home from any place outside U.S.A. Such reasons are sufficient to have the cross-examination of the petitioner through video- conferencing.
7. Per contra, learned advocate for the respondent has objected in granting this petition by relying upon Affidavit-in-reply dated 5thSeptember, 2024. The contention which has been raised by the learned advocate
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undefined for the respondent is that the petitioner has visited previously to India and she can visit once again for the cross-examination. The purpose of the petitioner by making such applications is to prolong the litigation and the request for evidence to be recorded through video- conferencing shows her careless attitude towards the matter. It is also contended that by allowing such request, it would set a precedent where anyone unable to travel for work purpose, might request for video-conferencing. It is submitted that there is no request Form submitted by the petitioner which is contemplated under Schedule II of Rules. The petitioner has not furnished her details such as mobile Number and email id and other details which are contemplated in the request Form for video conference.
7.1 By referring Rule 8 of chapter II-General Principles which deals with examination of persons, learned advocate for the respondent submitted that Sub-
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undefined rule 8.2 prescribes that persons being examined will ordinarily be examined during the working hours of the concerned Court or as such time as the Court may deem fit. The oath will be administered to the person being examined by the Coordinator at the Court point.
7.2 It is therefore submitted that no details of Coordinator at the Court point at the remote point has been mentioned in the application at Ex.53. Learned advocate for the respondent submitted that the learned Family Court has rightly considered the decision of Shanthini (supra) and rejected the application, no interference is required by this Court.
8. I have considered the submissions canvassed by the learned advocates for the parties and also considered the grounds mentioned in the memo of petition as well as Affidavit-in-reply filed by the respondent. The respondent
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undefined - husband has filed an application for custody of minor children and the petitioner has filed counter claim as per the order passed in the proceedings in USA. The petitioner, undisputedly stays at USA and working with Internal Federal Credit Union, a Government Company. An application Ex.46 came to be filed by the present petitioner seeking a prayer to appoint a Court Commissioner to record Cross-examination through video- conferencing. However, vide order dated 15.02.2024, the said application was disposed of as the petitioner was present in the Court and the husband assured to pay for one way Air fare. Thereafter, on 15.02.2024, cross- examination of petitioner was undertaken before the learned Family Court. Due to paucity of time, the matter was adjourned on 19.02.2024 for recording further cross- examination. However, on 19.02.2024, the matter was transferred to another Court of the learned Family Court, Ahmedabad. Thereafter, matter could not be taken for
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undefined further cross-examination and it was adjourned to 06.03.2024. Before that, petitioner came to India on 25.01.2024 and reached Ahemedabad on 28.01.2024. On 29.01.2024, the learned Family Court was on leave, and the matter was placed for evidence of petitioner on 01.02.2024. A copy of Examination-in-chief was served upon the learned advocate for the original applicant i.e. the husband on 01.02.2024. The matter was kept on 07.02.2024 for cross-examination of the petitioner. However, on the same day, learned Family Court was on leave, and the matter could not be taken up. The request was made to the learned In-charge Court of Family Court, Ahmedabad to take up the matter. However, the matter could not be taken up for one reason or other and it was placed before the Regular Court.
On 10.02.2024, petitioner left India as she had to resume her job as the leave for extension of stay in India was refused by the Employer. On 12.02.2024, an
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undefined application Ex.46, was submitted which came to be disposed of vide order dated 15.02.2024 as observed hereinabove.
9. It would be apposite to refer "The Gujarat High Court Rules for video-conferencing for Courts (High Court and Subordinate Courts), 2021". Rule 2(v) is reproduced hereunder:-
"2(v) "Court Point" means the Courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.
10. The said Rule defines Court Point. Court Point means the Courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.
11. Rule 2(x) is reproduced hereunder:-
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undefined
"Remote Point" is a place where any person or persons are required to be present or appear through a video link."
12. Rule 3 in Chapter II-General Principles of the Rules prescribes General Principles Governing Video Conferencing. Sub Rule (v) of Rule 3 is reproduced hereunder:-
(v) The Rules as applicable to a Court shall mutatis mutandis apply to a Commissioner appointed by the Court to record evidence and to an inquiry officer conducting an inquiry.
13. As per the said Rule, the Rules which are applicable to the Court shall mutatis mutandis apply to a Commissioner appointed by the Court to record evidence and to an inquiry officer conducting an inquiry.
14. Rule 5 defines preparatory arrangements which are relevant Rules. The same are reproduced herein below:-
5. Preparatory Arrangements
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undefined
5.1 There shall be a Coordinator both at the Court Point and at the Remote Point from which any Required Person is to be examined or heard. However, Coordinator may be required at the Remote Point only when a witness or a person accused of an offence is to be examined.
5.2 In the civil and criminal Courts falling within he purview of the district judiciary, persons nominated by the High Court or the concerned District Judge, shall perform the functions of Coordinators at the Court Point as well as the Remote Point as provided in Rule 5.3.
5.3 The Coordinator at the Remote Point may be any of the following:-
| Sub Rule |
Where the Advocate or Required Person is at the following Remote Point:- |
The Remote Point Coordinator shall be:- |
| 5.3.1 |
Overseas |
An official of an Indian Consulate/the relevant Indian Embassy/the relevant High Commission of India |
| 5.3.. 2.. |
…... |
|
15. As per Sub-rule 5.3.1 in the cases of Advocate or required person is at overseas, the Remote Point Coordinator shall be an official of an Indian Consulate/the relevant Indian Embassy/the relevant High Commission of
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undefined India.
16. Said Sub-rule is to be read with Rule 5.6 which is reproduced herein below:-
5.6. The Coordinator at the Remote Point shall ensure that:
5.6.1 All Advocates and/or Required Persons scheduled to appear in a particular proceeding are ready at the Remote Point designated for video conferencing at least 30 minutes before the scheduled time.
5.6.2 No unauthorised recording device is used. 5.6.3 No unauthorised person enters the video conference room when the video conference is in progress
5.6.4 The person being examined is not prompted, tutored, coaxed, induced or coerced in any manner by any person and that the person being examined does not refer to any document, script or device without the permission of the concerned Court during the course of examination.
17. A duty is cast upon the Coordinator at the Remote Point to ensure that all Advocates and/or Required Persons scheduled to appear in a particular proceedings are
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undefined ready at the Remote Point designated for video conferencing at least 30 minutes before the scheduled time, no unauthorized recording device is used, no unauthorized person enters the video conference room when the video conferencing is in progress and person being examined is not prompted, tutored, coaxed, induced or coerced in any manner by any person and that the person being examined does not refer to any document, script or device without the permission of the concerned Court during the course of examination.
18. When the Rules have been framed in such a way that the apprehension which has been raised by the respondent are being properly safeguarded and the Coordinators at the Court Point as well as the Remote Point are nominated by the High Court of the concerned District Judge, who shall perform the functions of the Coordinators as provided in Rule 5.3.
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undefined
19. The submission of learned advocate for respondent that the petitioner has not provided any details and has not submitted the requisite Request Form for video conference as prescribed under Schedule II has been duly taken care of by said Rules. And the petitioner shall provide all required details as prescribed in the Rules.
20. Rule 8 deals with examination of persons, clearly mentions that before a person is being examined through video conferencing the person including the witness shall produce and file proof of identity by submitting identity document issued or duly recognized by the Government of India, an Affidavit attested by any of the authorities referred to in Section 139 of the Code of Civil Procedure, 1908 or Section 297 of the Code of Criminal procedure, 1973, as the case may be. It is further provided in the Rule that the person being examined will ordinarily be examined during the working hours of the
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undefined concerned Court or at such time as the Court may deem fit. The oath will be administered to the person being examined by the Coordinator at the Court point.
21. Petitioner in the memo of petition which is supported by Affidavit has declared that the petitioner is ready and willing to appear at any time through video conferencing as per the direction of Hon'ble Court irrespective of differentiating time zone. When the Rules framed by this Court gives a power to the subordinate Court to examine any witness through video conferencing, it would not be proper on the part of the learned Family Court to reject the application on preliminary objection raised by respondent herein. The learned Family Court has not properly applied his mind in interpreting the Rules framed by this Court being "The Gujarat High Court Rules for Video Conferencing for Courts (High Court and Subordinate Courts), 2021". It is to be noted that
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undefined respondent has raised technical objection against application Exh.53. The purpose of speedy disposal of trial is affected by such technical objection.
22. Resultantly in view of the above discussions, the learned Family Court has committed an error by rejecting the application. In view of the Rules framed by this Court, an application Ex.53 is allowed accordingly. Order dated 02.04.2024, is hereby quashed and set aside.
23. This Court has very seriously noted the fact that the learned Family Court was directed to complete the proceedings within the stipulated time. Both the parties herein are directed to co-operate the learned Family Court in disposing of the main matter within time bound schedule without seeking unnecessary adjournments.
24. The petitioner is hereby directed to comply necessary formalities to be completed as envisaged in "The
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undefined Gujarat High Court Rules for Video Conferencing for Courts (High Court and Subordinate Courts), 2021." The petitioner shall further bear all expenses that may be incurred in India and/or in USA for the purpose of recording the cross-examination through video conferencing.
25. With these observations and directions, present petition is allowed. Rule is made absolute. No orders as to costs.
(D. M. DESAI,J)
MANOJ
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