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2008 DIGILAW 3606 (MAD)

Dr. S. Sankar v. C. Sagunthala Devi

2008-09-29

S.RAJESWARAN

body2008
Judgment : The petitioner/husband who filed H.M.O.P. No. 127 of 2005 under Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act (25 of 1955) against the respondent/wife for dissolving the marriage between them, is the revision petitioner before this Court. 2. H.M.O.P. No. 127 of 2005 has been filed by the petitioner/husband by contending that the respondent/wife is a Megalomaniac and she was constantly nagging the petitioner, resulting in causing indelible mental agony and therefore, the wife is guilty of being cruel to him, it is further stated by the husband that, after the marriage held on 30.8.2001, at Aval poondurai, they left for U.K. on 19. 2001. A male child by name Rahul was born to them on 20.11.2002. it is the further contention of the husband that the wife left for India on 4. 2003, But, instead of heeding to the advice of the husband’s parents, she gave a police complaint against him and his parents, as if they demanded dowry. Hence, he sought for dissolving the marriage solemnized on 30.8.2001. This petition was resisted by the respondent/wife by filing a counter statement. 3. In her counter, the wife stated that the petitioner/husband along with his father and mother started demanding dowry from her and therefore, she was forced to come to India with her five months old baby. It is admitted by her that she gave a police complaint on 8. 2005 and a case was registered in Cr. No. 29 of 2005 under Section 498(A) of I.P.C. read with Section I of the Dowry prohibition Act and the criminal case is pending before the Judicial Magistrate Court No. II, Erode. It is further pointed out by the respondent/wife that the maintenance amount ordered by the trial Court has not yet been paid by the petitioner/husband and therefore the petitioner/husband is not entitled to continue with the Court’s proceedings. It is further stated by her that a warrant of arrest against the petitioner/husband is pending.. According to the respondent/wife that the H.M.OP. itself is a ruse to escape from the clutches of the criminal cave. Hence, she prayed for the dismissal of H.M.O.P. No. 127 of 2005. 4. It is further stated by her that a warrant of arrest against the petitioner/husband is pending.. According to the respondent/wife that the H.M.OP. itself is a ruse to escape from the clutches of the criminal cave. Hence, she prayed for the dismissal of H.M.O.P. No. 127 of 2005. 4. pending H.M.O.P. No. 127 of 2005, the petitioner/husband filed a petition in I.A. No. 41 of 2008 to permit him to examine him through Video Conferencing, as he is not able to corns over to India from U.K. In the affidavit filed in support of I.A No. 41 of 2008, it is stated by the petitioner/husband that H.M.O.P. No. 127 of 2005 is posted for enquiry and as he is pursuing his higher studies and doing training in Cardiology in U.K., he will not be permitted to take leave during the training period. As the training will go on for another 23 months, it would not be possible for him to come down to India to attend the hearing before the Principal Sub Court. He came to know that Video Conferencing facility is available in the District Court Complex, Erode and he was advised that such enquiry by Video Conferencing is also permitted by Indian Laws. Hence, he has filed I.A. No. 41 of 2008 far the aforesaid relief. 5. This was seriously resisted by the respondent/wife by contending that I.A. No. 41 of 2008 has been filed to escape from the criminal case which is pending before the Judicial magistrate, Erode. In fact, a non – bailable warrant is pending against him. Further, the maintenance amount ordered by the trial Court Which was enhanced by the High Court was not at all paid by the petitioner/husband. Hence, she preyed for the dismissal of this application. .6. The trial Court by order dated 22. 2008 dismissed I.A. No. 41 of 2008 and aggrieved by the same, the petitioner/husband has filed the above revision petition under Article 227 of the Constitution of India. 7. This Court ordered notice of motion on 27. 2008 and granted interim stay. The respondent/wife entered appearance through her counsel. On 19. 208, when it was reported by the learned counsel for the respondent/wife that the maintenance amount which has become final has rot been paid till date, this Court directed the petitioner/husband to pay the entire maintenance amount on or before 29. 2008. On 29. 2008 and granted interim stay. The respondent/wife entered appearance through her counsel. On 19. 208, when it was reported by the learned counsel for the respondent/wife that the maintenance amount which has become final has rot been paid till date, this Court directed the petitioner/husband to pay the entire maintenance amount on or before 29. 2008. On 29. 2008 the learned counsel for the petitioner has handed over two Demand Drafts dated 19. 2008 for Rs. 90,000/ and Rs. 80,000/- to the learned counsel for the respondent/wife in the open Court and it was also acknowledged. 8. heard the learned counsel foe the petitioner/husband and Mr. S.V. Jeyaraman, the learned senior counsel, for the respondent/wife. I have also considered the documents and the judgments filed in support of their submissions. 9. The learned counsel for the petitioner/husband submits that as the husband is undergoing training in U.K., it is not at all possible for him to take leave to attend the enquiry in the H.M.O.P. and therefore, to participates in the enquiry, the husband has filed the above petition with a good intention and also to cooperate with the Court’s proceedings. However, the trial Court has not gone into the manner in the proper perspective and dismissed the application warranting interference by this Court under Article 22 of the Constitution of India. The learned counsel for the petitioner/husband relied on a decision of the Hon’ble Supreme Court State of Maharashtra V. Dr. Praful B. Desai AIR 2003 SC 2053 : (2003) 4 SSC 601 and a decision of the Bombay High Court Liverpool and London Steamship protection and Indemnity Association Limited v. M.V. “Sea Success I” and Another to submit that such Video conferencing is permissible in a case where the witness is unable to attend the Court or unable to travel to India. .10. Per contra, the learned senior counsel for the, respondent/wife submits that there is no bona fide on the part of the husband as he is only trying to avoid facing the criminal Court which has issued a non-bailable warrant, against him. It is further stated by the learned senior, counsel that though Video Conferencing is permissible to record the evidence, in the present case, the ingredients which should be present for ordering such enquiry by Video Conferencing are lacking and therefore, the trial Court, has rightly dismissed the application. 11. It is further stated by the learned senior, counsel that though Video Conferencing is permissible to record the evidence, in the present case, the ingredients which should be present for ordering such enquiry by Video Conferencing are lacking and therefore, the trial Court, has rightly dismissed the application. 11. I have considered the rival submissions carefully. 12. In State of Mahararashtra v. Dr. praful B. Desai (supra) the Hon’be Supreme Court, held that recoding of evidence by way of Video conferencing is permissible and it satisfies the object of Section 273 of the Criminal Procedure Code 1973. Accordingly, the evidence is to be recorded in the presence of the accused. It is further held by the Supreme Court that evidence can be both oral and documentary and , it can be produced by way of electronic records including video conferencing. It is further observed by the Supreme court that video conferencing involves actual reality and recording of such evidence would be as per the procedure established by law. 13. Following the above judgment of the Apex Court, the Bombay High Court in Liverpool and London Steamship protection and Indemnity Association Limited v. M.V. “Sea Success 1” and Another (supra) held that examining a witness by video conferencing is permissible and that too in a case where the witness is unable to attend the Court of unable to travel to India, the Court should lean in favour of the advancement of Science and Technology and see to it that the evidence is recorded expeditiously in the interest of justice by way of video Conferencing. 14. From the above judgments, it is very clear that recording the evidence by video conferencing is permissible in India and once it is established that a person is not in a position to come to the Court or travel to India, such recording of evidence should be permitted in the interest of justice for a speedy trial. .15. In the present case, the husband claims that he is taking training in Cardiology and it is not possible for him to travel to India from U.K., during the training period. Further, already this Court has issued a direction to the trial Court to dispose of the main O.P. itself within nine months. .15. In the present case, the husband claims that he is taking training in Cardiology and it is not possible for him to travel to India from U.K., during the training period. Further, already this Court has issued a direction to the trial Court to dispose of the main O.P. itself within nine months. Though the trial Court, has rightly found that the petitioner/husband is not entitled to the relief on the ground that the maintenance amount as ordered by this Court has not been paid by the husband, considering the fact that the entire arrears of maintenance amount has been paid by the petitioner/husband when the matter was pending before this Court, I am of the considered view that the petitioner should be permitted to give evidence byway of video conferencing. Further, it will also help the respondent/wife and if the enquiry is conducted by video conferencing, the main petition itself could be disposed of expeditiously. 16. Therefore, I am inclined to interfere with the order of the trial Court by setting aside the same and permitting the petitioner/husband to examine him though video conferencing. I further direct the petitioner/husband to make, all arrangements with necessary safeguards for the purpose of recording his evidence through video conferencing and he should also bear the entire cost of the enquiry to be recorded by way of video conferencing. 17. In the result, the Civil Revision petition is allowed as prayed for. No costs. The connected miscellaneous petition is also closed.