Mutual Consent Divorce is an easy way of coming out of the matrimony and dissolve it legally. When the spouse (husband and wife) agree to take a divorce, the courts will consider as a mutual consent divorce. For the petition to be accepted, however, the spouse should be separated for more than a year or two years. They can be separated when the couple, still agree for mutual divorce because it is comparatively inexpensive and not as troubling as a contested divorce. The issues related to children's custody, alimony or maintenance and property rights can be agreed mutually too.
According to the law, there is no minimum or maximum limit of maintenance, and the child custody can be shared or joint depending upon the mutual comprehension of the couple.
The number of matrimonial cases filed per year in India is a lot more when compared to other countries. Delhi has 11,862 pending matrimonial cases. The courts disposed of more than 24,000 cases in the last two years. Kerala tops the list with 52,000 cases awaiting adjudication till November 2016. On the contrary, Uttar Pradesh has just 5,466 cases pending in its 76 family courts. This not only increases the burden on the courts, but it also delays the cases which are urgent and require speedy disposal. Due to the increasing number of cases, the need to use the technology to dispose of such cases was realized by the courts. Video-conferencing is one of the modern ways which can help people to get speedy trials and on the other hand, the court, the judges and the litigants can enjoy less burden of matrimonial cases.
Video conferencing is a comparatively new tool in the arsenal of the judiciary, the aim of the same is to make the availability of witnesses and parties to the suit more pragmatic, as discussed in the matter concerning the Indian Planned Parenthood Federation in the Delhi HC, where the two-judge bench of J. Bader Durrej Ahmed and J. Sanjeev Sachdeva; The Hon'ble justices have referred to this pragmatisms in light of the specific appeal of the party in requesting the recording of the testimony of one of the witnesses via video conferencing. This seminal decision in the Delhi HC has been backed by the SC in State of Maharashtra v Dr. Praful Dubey AIR 2003 SCC 601 where the application of Sec, 273 of CrPC was discussed and held that the meaning of the term 'Presence' as used in the section 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 even without the physical existence of a party, video conferencing is an agreeable replacement to the physical attendance of the party to court. In both these cases, the court held financial ability and capacity to appear as a secondary reason and argued that there is no set reason why online attendance for a court procedure could be granted, although the text is obvious enough to exclude laxity. It is to be noted that the cases are criminal appeals in the respective HCs, and the interpretation focuses on interpretation in CRPC, but it is equally important to note that the term 'presence' can be superposed in civil matters as well, and there is nothing in the way of applying the same to family court procedure.
History of divorces through video-conferencing
Divorce cases may be fought on video in future rather than in crowded courtrooms amidst strangers. Krishna Veni Nagam vs Harish Nigam 2017, changed the way through which the courts use to start proceedings of the matrimonial cases. The case was regarding a woman who filed a petition in the court stating that, she lives in Hyderabad with her minor daughter and has to travel to Jabalpur where her estranged husband has filed a divorce case. The bench which had Justice A.K Goel and UU Lalit allowed the petition and transferred the divorce matter from Jabalpur to a family court in Hyderabad, noting that the plea was pending before it for three years. With this, the court observed that just transferring a case from one place to another is not a solution. The court said,"This court is flooded with petitions of this nature and considering the convenience of the wife, a transfer is normally allowed. However, in the process, the litigants have to travel to this court and spend on litigation. Question is whether this can be avoided." The bench observed that one could not ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. To combat this situation, it was then that the Supreme Court decided to conduct these cases through video conferencing, which not only saves money but is also more convenient to both the parties involved in it. Taking this decision, the court also said, technology ought to be utilized for receiving communication from parties. We are thus of the view that it is necessary to issue certain directions which may provide alternatives to seeking transfer of proceedings on account of the inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred, it will result in denial of justice." When it was argued that, not every place has the facility of Video calls, the court said, "We understand that in every district in the country, video conferencing is not available. In any case, wherever such facility is available, it ought to be fully utilized and all high courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for a certain category of cases." This decision was important and essential as it eliminates the need for the person to be present personally in court. The court noted that a divorce case is usually filed in a court within which jurisdiction the husband lives or the wife lives or where the couple had their matrimonial home.
In most cases, estranged couples may very well go their separate ways, probably to other States. The Supreme Court found that the odds are usually stacked against the estranged husband when the wife prefers a transfer of the matrimonial proceedings to a court in her vicinity. When such a transfer application comes up, the courts either order the husband to foot the wife's travel and accommodation expenses or mechanically allow her plea. The judiciary justifies that this empathy towards women is based on three factors — the constitutional scheme to provide women equal access to justice, the power of the State to make special provisions for women and children and duty to uphold the dignity of women.
It is also important to note that, this judgment was opposite to the case the court had in the 2006 judgment in Anindita Das versus Srijit Das. In the mentioned case, the Supreme Court had insisted that transfer of the matrimonial case to the wife's place is a must when she does not have "any male member to accompany her to the matrimonial proceedings".
Current Stand of Divorces through Video conferencing
After the Supreme Court, allowed the divorces through video calls, the current scenario of divorces remains the same and people do apply for divorces through skype and video calls. In a recent case, Harshada Bharat Deshmukh Vs. Bharat Appasaheb Deshmukh, ST. NO.1788 of 2018, the Bombay High Court has held that a petition for divorce through mutual consent can be filed through a registered power of attorney and directed the Family Court, Bandra, to allow recording of consent terms via Skype or any other technology. The couple filed a petition before the Family Court for dissolution of marriage through mutual consent under section 13 B of Hindu Marriage Act.
However, the petition was signed by the husband and the father of the wife, who is also her registered power of attorney holder. The family court under this held that both the parties must remain present, for filing such a petition and the petition was dismissed on the same ground. Samir Vadiya, the lawyer of wife, argued that his client was employed in the United States of America and was unable to remain present due to employment rules and regulations she was governed by. Vadiya also claimed that both the parties were living separately for more than a year and the refusal of the petition on the ground of non-presence is not valid. He placed reliance on a judgment of the high court in Mukesh Narayan Shinde v Palak Mukesh Shinde to submit that it is permissible for the family court in the light of technological development to arrange for e-counselling and e-verification by video conference. Furthermore, he also relied upon the judgment of Punjab & Haryana High Court in Navdeep Kaur v Mahinder S Ahluwalia to submit that personal appearance of the parties at the time of presentation of the petition for divorce by mutual consent is not mandatory and the parties may be represented through a duly constituted attorney. The same reasoning was used in the matter of J. Kalpana v S. Sreenath that was filed before the Madras HC.
It is important to note that, in Sec. 13-B, the court interpreted the words 'In the presence of the parties' in a literal sense, this has led to courts having to think of workarounds in situations where the parties are estranged, or in different jurisdictions.In the case of Kanwalijeet Sachdev v State of UP(2016) 99 ACC 323, the Allahabad HC followed the ration on Navdeep and agreed that alternative methods, among them, filing a mutual divorce petition through power of attorney, and remote recording of evidence etc. can be done to accommodate the party. Thereafter in the HC of Calcutta, in Annalie Prashad v Ramesh Prashad AIR 1968 Cal 48 it was held that the strict interpretation of the presentation by parties would imply accommodation rather than exclusion of evidence, this ratio has been taken forward in division bench decision by the Delhi HC in Vinay Jude Dias v Renajeet Kaur(2009) 186 Drj 183, here it was held that the power of attorney can be used even in matters of mutual consent divorce, as long as the other requirements have been fulfilled.
These cases establish that, divorce petitions do not require the direct presence of the parties and that alternative solutions can be sought. Courts have shown similar leniency in matters of party presence before the court, in divorce matters, where the party for whom video conferencing is needed is merely a witness as held in Sujoy Mittra v State of West Bengal(2015) 16 SCC 615, and this has been affirmed by the Kerala HC in the matter of Zacharia Arun George Scaria In Re: Titus Mani Adv. 2013 SCC Ker 169.
In the times of Covid-19, the domestic violence is on the rise, and there is very little the government can do about the rehabilitation of the victims, for this reason, it is not too far fetched to think that there might be a spike in the number of petitions filed for separation and divorce after courts return to full capacity. As the courts are only working online, and are taking cases which are of urgent matters, the cases related to divorce might not be heard as of now. However, lawyers suggest that the divorce cases, which includes huge alimony and settlement amounts, will have to be revived and amendments would be made, as the economic situation of every individual post corona period is not going to remain same.
One downside is that most proceedings, except extremely sensitive matters such as POCSO - Preventive Detention, Terror and related matters, are public hearings; thus it means that the courtroom is open to the public to venture into and view. Although it is common practice for parties in sensitive divorce matters to request in-camera proceedings, it is not the norm. Currently, due to the nature of video conferencing itself, most matters where one or both parties deigns to attend through online means will automatically render the proceedings in-camera.
Many countries, apart from India, have also used digitalization to grant divorces to couples who cannot remain present together in one particular State or country. There have been many cases in which the parties give their consent for divorce through video calls using Skype, WhatsApp and other online applications. This not only saves time of both the parties, but it is also the way through which hassle-free divorces takes place.
The Indian Judicial System gave a landmark judgment in the year 2017 when it permitted the mutual consent divorce through video conference. Video calls allowance will also help to save a lot of many, which is spent on travel by the parties through one State to the another where the case is being heard. It has also given equal rights to both the women and the men as neither party would have to travel for trials of the cases. Furthermore, digitalization of the country is important as the whole world is turning digital and to match with the same pace is essential.
It is also important to note that Family Court proceedings are more amenable to the collection of both testamentary and material evidence through electronic means, this is because standard evidentiary rules don't apply to family courts due to the application of the Family Courts Act 1984. Hence, any testamentary evidence gathered through video conferencing will not face the usual hurdles of admissibility specifically because the matter is posted before a family court.
The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .