SANTHINIversusVJJAYA VENKETESH

                         [2017] 12 S.C.R. 547



                             SANTHINI                                     A
                                  v.
                       VJJAYA VENKETESH
             (Transfer Petition (Civil) No. 1278 of2016)
                         AUGUST 09, 2017                                  B

        [KURIAN JOSEPH AND R. BANUMATHI, JJ.]
       FamiZv Law - Transfer petition - Petitioner sought transfer
of divorce petition and application for custody of minor child from
the Family Court, Kera/a to Family Court, Tamil Nadu - Respondent
                                                                           c
husband relied on decision rendered by coordinate bench in *Krishna
Vent Nagam and requested that there was no need to transfer the
case and instead parties could be directed to avail the facility of
video conferencing as suggested in the said decision - Held: To
what an extent the confidence and confidentiality will be
safeguarded and protected in video conferencing, particularly when D
efforts are taken by the counsellors; welfare experts, andfor that
matter, the court itselffor 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 to maintain confidentiality
                                                                           E
- Footage in video conferencing becomes part of the record whereas
the reconciliatory efforts taken by the duty-holders are not meant
to be part of the record - Rather, physical presence of the parties
would make a significant difference - Having regard to the very
object behind the establishment of Family Courts Act, 1984 and to
Order XXXIIA of the Code of Civil Procedure and to the special F
provisions introduced in the Hindu Marriage Act under ss.22, 23
and 26, the directions issued by the Court in Krishna Veni Nagam
case need reconsideration on the aspect of video conferencing in
matrimonial disputes - Therefore matter refen·ed to larger bench -
Reference to larger bench.
                                                                          G
      *Krishna Veni Nagam v. Harish Nagam (2017) 4 SCC ·
      150 - referred to.
                         Case Law Reference
       c2011) 4 sec 150          referred to               Para3
                                                                          H
                                  547
548               SUPREME COURT REPORTS                       [2017] 12 S.C.R.


A           CIVIL ORIGINAL JURISDICTION: Transfer Petition (Civil) No.
      1278 of2016.
               Under Section 25 of the Code of Civil Procedure.
                                           WITH
B              T. P. (C) No. 422 of2017.
             V. K. Sidharthan, S. Sreedharan, Ms. Sridevi V. S., Ad vs. for the
      Petitioner.
               Rishi Malhotra, Adv. for the Respondent.
               The following Order of the Court was passed:
 c
                                      ORDER
             I. The petitioner has approached this Court seeking for transfer
      of O.P.(HMA) No.580 of 2015 filed for dissolution of marriage of the
      respondent and petitioner and O.P. No.1282of2012 filed for custody of
 D    minor child, from the Court ofFamily Court,Alappuzha, Kerala to Family
      Court, Chennai, Tamil Nadu.
            2. When the matter came up for consideration before this Court,
      learned counsel appearing for the respondent brought to our notice a
      decision rendered by a coordinate Bench of this Court in Krishna Veni
 E    Nagam v. Harish Nagaml and requested that there is no need to transfer
      the cases; instead parties can be directed to avail the facility of video
      conferencing, as suggested by this Court in the case referred to above.
             3. In Krishna Veni Nagam (supra) a coordinate Bench of this
      Court went into the issue of preventing the backlog of transfer petitions
 F    before the Co.urts. It appears that the Court also had the assistance of
      an amicus. Having heard the learned Counsel on both the sides and
      learned amicus, the Court finally, at paragraph-18, issued the following
      directions:-
               "18. We, therefore, direct that in matrimonial or custody matters
 G             or in proceedings between parties to a marriage or arising out of
               disputes between parties to a marriage, wherever the defendants/
               respondents are located outside the jurisdiction of the court, the
               court where proceedings are instituted, may examine whether it
               is in the interest of justice to incorporate any safeguards for
 H    I   (2017) 4 soc 150
                SANTHINI v. VIJAYA VENKETESH                                   549


      ensuring that summoning of defendant/respondent does not result          A
      in denial of justice. Order incorporating such safeguards may be
      sent along with the summons. The safeguards can be:-
          i) Availability of video conferencing facility.
          ii) Availability oflegal aid service.
                                                                               B
          iii) Deposit of cost for travel, lodging and boarding in terms of
          Order XXV CPC.
          iv) E-mail address/phone number, ifany, at which litigant from
          out station may communicate."
       4. We are informed that not only this Court but the High Courts         C
and even the District Courts are passing orders in the light of the judgment
referred to above, relegating the parties to video conferencing even where
such facilities are not available. Thus, it is a situation not only of inter
State appeal or intra State appeal but also of intra District appeal.
      5. Having due regard to the nature of family disputes sought to be       D
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.
      6. The Family Courts Act, 1984 was introduced with the following
purpose:-                                                                      E
                             "INTRODUCTION
      From time to time, it had been urged by several organisations of
      women, other organisations and individuals that Family Courts be
      set-up for the settlement offamily disputes. The Law Commission
      in its 59•h Report had also stressed that in dealing with disputes       F
      concerning the family the court ought to adopt an approach radically
      different from that adopted in ordinary ci vii proceedings and that
      it should make reasonable efforts at settlement before the
      commencement of the trial. In 1976 the Code of Civil Procedure
      was also amended to provide for a special procedure to be adopted        G
      in suits or proceedings relating to matters concerning the family,
      but not much change in the attitude of the courts was noticed.
      Therefore, the need was felt to establish Family Courts for speedy
      settlement of family disputes. Accordingly the Family Courts Bill
      was introduced in the Parliament.
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550      SUPREME COURT REPORTS                           [2017] 12 S.C.R.


A                STATEMENT OF OBJECTS AND REASONS
      Several associations ofwomen, other organisations and individuals
      have urged, from time to time, that Family Courts be set up for
      the settlement of family disputes, where emphasis should be laid
      on conciliation and achieving socially desirable results and
B     adherence to rigid rules of procedure and evidence should be
      eliminated. The Law Commission in its 59•h report (1974) had
      also stressed that in dealing with disputes concerning the family
      the court ought to adopt an approach radically different from that
      adopted in ordinary civil proceedings and that it should make
      reasonable efforts at settlement before the commencement of
c     the trial. The Code of Civil Procedure was amended in 1976 to
      provide for a special procedure to be adopted in suits or
      proceedings relating to matters concerning the family. However,
      not much use has been made by the courts in adopting this
      conciliatory procedure and the courts continue to deal with family
D     disputes in the same manner as other civil matters and the same
      adversary approach prevails. The need was, therefore, felt, in
      the public interest, to establish Family Courts for speedy settlement
      of family disputes.
      2, The Bill, inter a/ia, seeks to-
 E    ( a) provide for establishment of Family Courts by the State
      Government;
      (b) make it obligatory on the State Governments to set up a Family
      Court in every city or town with a population exceeding one million;
      (c) enable the State Governments to set up, such courts, in areas
 F
      other than those specified in (b) above;
      .( d) exclusively provide within the jurisdication of the Family Courts
       the matters relating to-
          (i) matrimonal relief, including nullity of marriage, judicial
 G        separation, divorce, restitution of conjugal rights, or declaration
          as to the validity of marriage or as to the matrimonial status of
          any person;
          (ii) the property of the spouses or of either of them;
          (iii) declaration as to the legitimacy of any person;
 H
               SANTHINI v. VIJAYA VENKETESH                                   551



         (iv) guardianship of a person or the custody of any minor;           A
         (v) maintenance, including proceedings under Chapter IX of
         the Code of Criminal Procedure;
      (e) make it obligatory on the part of the Family Court to endeavour,
      in the first instance to effect a reconciliation or a settlement
      between the parties to a family dispute. During this stage, the         B
      proceedings will be informal and rigid rules of procedure shall not
      rum!v;
      (f) provide for the association of social welfare agencies,
      counsellors, etc., during conciliation stage and also to secure the
      service of medical and welfare experts;                                 c
      (g) provide that the parties to a dispute before a Family Court
      shall not be entitled, as of right, to be represented by legal
      practitioner. However, the court may, in the interest of justice,
      seek assistance,of a legal expert as amicus curiae;
                                                                              D
      (h) simplify the rules of evidence and procedure so as to enable a
      Family Court to deal effectively with a dispute;
      (i) provide for only one right of appeal which shall lie to the High
      Court.
      3. The Bill seeks to achieve the above objects."                        E
                                                     (Emphasis supplied)
      7. Section 9 of the Family Courts Act, 1984 makes it a mandatory
duty of the Family Court to make eff01is for settlement. The said
provision reads as follows:-
                                                                              F
      "9. Duty of Family Court to make efforts for settlement. (1) In
      every suit or proceeding, endeavor shall be made by the Family
      Court in the first instance, where it is possible to do so consistent
      with the nature and circumstances of the case. to assist and
      persuade the parties in arriving at a settlement in respect of the
      subject-matter of the suit or proceeding and for this purpose a         G
      Family Court may, subject to any rules made by the High Court,
      follow such procedure as it may deem fit.
      (2) If, in any suit or proceeding, at any stage, it appears to the
      Family Court that there is a reasonable possibility' of a settlement
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552             SUPREME COURT REPORTS                         [2017] 12 S.C.R.


A            between the parties, the Family Court may adjourn the proceedings
             for such period as it thinks fit to enable attempts to be made to
             effect such a settlement.
             (3) The power conferred by sub-section (2) shall be in addition to,
             and not in derogation of any other power of the Family Court to
B            adjourn the proceedings."
                                                           (Emphasis supplied)
            8. In order to assist the Family Court, the Act has provided for
      association of social welfare agencies. In Section 6 provision regarding
      counsellors, officers and other employees off amily Courts is mentioned,
C     which reads as follows:-
             "6. Counsellors, officers and other employees ofFamily Courts.(!)
             The State Government shall in consultation with the High Court,
             determine the number and categories of counsellors, officers and
             other employees required to assist a Family Court in the discharge
D            ofits functions and provide the Family Ceurt with such counsellors,
             officers and other employees as it may think fit.
            · (2) The terms and conditions of association of the counsellors and
              the terms and conditions of service of the officers and other
              employees, referred to in sub-section ( 1), shall be such as may be
 E            specified by rules made by the State Government."
             9. Section 12 provides for the assistance of medical and welfare
       experts, which reads as under:-
             " 12. Assistance of medical and welfare experts.-In every suit or
             proceedings, it shall be open to a Family Court to secure the
 F
             services of a medical expert or such person (preferably a woman
             where available), whether related to the parties or not, including a
             person professionally engaged in promoting the welfare of the
             family as the court may think fit, for the purposes of assisting the
             Family Court in discharging the functions imposed by this Act."
 G
              10. Section 11 provides that "in every suit or proceedings to which
       this Act applies, the proceedings may be held in camera ifthe Family
       Court so desires and shall be so held if either party so desires".
              11. Under the Hindu Marriage Act, 1955 also, in respect of the
      · family matters, the Parliament has made several provisions for
H
                 SANTHINI v. VIJAYA VENKETESH                                     553



reconciliation. Under Section 23(2) "before proceeding to grant any               A
relief under this Act, it shall be the dutv of the court in the first instance,
in every case where it is possible so to do consistently with the nature
and circumstances of the case. to make every endeavour to bring about
a reconciliation between the parties".
      12. Sub-section (3) of Section 23 of the Hindu Marriage Act further         B
provides for methods to facilitate the process, which reads as follows:-
       "23 (3) For the purpose of aiding the court in bringing about such
       reconciliation, the court may, if the parties so desire or ifthe court
       thinks it just and proper so to do, adjourn the proceedings for a
       reasonable period not exceeding fifteen days and refer the matter          c
       to any person named by the parties in this behalf or to any person
       nominated by the court ifthe parties fail to name any person, with
       directions to report to the court as to whether reconciliation can
       be and has been effected and the court shall in disposing of the
       proceeding have due regard to the report."
                                                                                  D
                                                        (Emphasis supplied)
       13. Section 22 of the Hindu Marriage Act has given a very
important safeguard for protecting the privacy of the proceedings or
prohibiting the printing and publishing of any proceedings before the Court,
except the printed judgment of the High Court or the Sup re me Court.             E
The section also provides for the situation where the proceedings are to
be held in camera. Section 22 reads as follows:-
       "22 Proceedings to be in camera and may not be printed or
       published.( l) Every proceeding under this Act shall be conducted
       in camera and it shall not be lawful for any person to print or
                                                                                  F
       publish any matter in relation to any such proceeding except a
       judgment of the High Court or of the Supreme Court printed or
       published with the previous permission of the Court.
        (2) If any person prints or publishes any matter in contravention
       of the provisions contained in sub-section ( l ), he shall be
                                                                                  G
       punishable with fine which may extend to one thousand rupees."
                                                        (Emphasis supplied)
       14. Section 26 of the Hindu Marriage Act deals with the custody
of children, wherein it is mandatory for the Court to ascertain the wish
                                                                                  H
554             SUPREME COURT REPORTS                            [2017] 12 S.C.R.


A     of the children as well before taking a decision on the custody. The said
      section reads as follows:-
            "26 Custody of children.- In any proceeding under this Act, the
            court may, from time to time, pass such interim orders and make
            such provisions in the decree as it may deem just and proper with
B           respect to the custody, maintenance and education of minor
            children, consistently with their wishes, wherever possible, and
            may, after the decree, upon application by petition for the purpose,
            make from time to time, all such orders and provisions with respect
            to the custody, maintenance and education of such children as
            might have been made by such decree or interim orders in case
c           the proceeding for obtaining such decree were still pending, and
            the court may also from time to time revoke, suspend or vary any
            such orders and provisions previously made:
               Provided that the application with respect to the maintenance
             and education of the minor children, pending the proceeding for
D            obtaining such decree, shall, as far as possible, be disposed of
             within sixty days from the date of service of notice on the
             respondent."
                                                              (Emphasis supplied)

E             15. Order XXXIIA of the Code of Civil Procedure was introduced
      in the year 1976. The same pertains to "suits relating to matters
      concerning the family". Rule 3 casts a duty on the Court to make every
      effort for settlement in family matters, the said provision reads as follows:-..
             "3. Duty of court to make efforts for settlement.- (1) In every
             suit or proceeding to which this Order applies, an endeavour shall
 F
             be made by the court in the first instance, where it is possible to
             do so consistent with the nature and circumstances of the case, to
             assist the parties in arriving at a settlement in respect of the subject-
             matter of the suit.
               (2) If, in any such suit or proceeding, at any stage it appears to
 G
             the court that there is a reasonable possibility of a settlement
             between the parties, the court may adjourn the proceeding for
             such period as it thinks fit to enable attempts to be made to effect
             such a settlement.
               (3) The power conferred by sub-rule (2) shall be in addition to,
H
                SANTHINI v. VIJ AYA VENKETESH                                   555



      and not in derogation of, any other power of the court to adjourn         A
      the proceedings."
       16. Rule 2 deals with in camera proceedings. Rule 4 provides for
the assistance of a welfare expert and Rule 5 casts a duty on the Court
to "inquire, so far as it reasonably can, into the facts alleged by the
plaintiff and into any facts alleged by the defendant".                         B
       17. Unfortunately, it seems, none of these mandatory procedures
as laid down by the Parliament have been brought to the notice of the
Comt 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.           c
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. In mediation, the role of the mediator is only to eyolve solutions
whereas in reconciliation, the duty-holders have to take a proactive role
to assist the parties to reach an amicable solution. In conciliation, the       D
conciliator persuades the parties to arrive at a solution as suggested by
him in the course of the discussions. In reconciliation, as already noted
above, the duty-holders remind the parties of the essential family values,
the need to maintain a cordial relationship, both in the interest of the
husband and wife or the children, as the case may be, and also make a           E
persuasive effort to make the parties reconcile to the reality and restore
the relationship, if possible. The Family Courts Act expects the duty-
holders like the court, counsellors, welfare experts and any other
collaborators to make efforts for reconciliation. However, reconciliation
is not always the restoration of status quo ante; it can as well be a
solution as acceptable to both parties. In all these matters, the approaches    F
are different.
        18. The role ofa 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       G
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. In custody matters
also the counsellor assists the child, if he/she is of such age, to accept
the reality of incompatibility between the parents and yet make the child       H
556             SUPREME COURT REPORTS                            [2017] 12 S.C.R.


A     understand that the child is of both parents and the child has a right to
      get the love and affection of both the parents and also has a duty to love
      and respect both the parents etc. Essentially, the counsellor assists the
      parents to shed their ego and take a decision in the best interest of the
      child.
B             19. 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 se_rious issue to be considered. It is certainly difficult in video
c     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
D     significant difference. Having regard to the very object behind the
      establishment of Family Courts Act, 1984, to Order XXXTIA 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
      reconsidt:ration on the aspect of video conferencing in matrimonial
 E    disputes.
            20. Therefore, we are of the view that the matter requires
      consideration by a larger Bench. The Registry is directed to place the
      papers before Hon'ble the Chief Justice oflndia. We request Hon'blc
      the Chief Justice of India to expeditiously constitute a Bench having
 F    regard to the urgency of the matter.


      Devika Gujral                                      Matter referred to larger bench.