This Article is authored by Advocate Anil Malhotra.
Two is company, three a crowd and any more is now anunlawful COVID Assembly. Undefined in law, it threatens human life, without being an offence. It poses a threat to the Rule of law.COVID-19 and attendant social distancing pose challenges unknown to the judicial system. Otherwise, online professional engagements and work from home are now the safe exit. Even weddings, funeral services and prayer meetings are online options. Are online Courts then the future of Justice.IT technology and E-courts answer COVID contact prohibitions.To prove it, Kerala and Bombay High Courts have conducted live streaming video conference proceedings providing access to Courts and Justice.
India is privy to unique cross- border family law and allied litigation.As per Government of India statistics, an estimated over 34 lacsnon-resident Indians have registered as Overseas Citizen of India Card holders (OCIs) to acquire lifelong visa free entry to India. NRIs in actual numbers may be more than 30 million. These global Indians have inhabited, settled and thrived in almost 200 countries on the globe. Undoubtedly, these international Indians are a unique nationality by themselves. They propel a dire need for a global law to govern their conflicts. The link and retention of their ties with their extended families in India and abroad has found expression in issues relating to nationality, citizenship, marriage, divorce, spousal maintenance, alimony, inter-parental child removal, custody and guardianship of children, division of matrimonial property, inter-country adoptions, succession and inheritance of Indian property and last but not the least in surrogacy arrangements. Domestic violence in abusive marriages of international couples has created a new jurisprudence. Foreign Courts and overseas law practitioners are at sea attempting to resolve these problems for lack of any updated and amended Indian laws or reasoned interpretation of law on these new age subjects. Conflict of laws are galore. Parallel simultaneous adjudications in different jurisdictions create anomalous complications which compound legal dilemmas of human relationships.
Applicability of foreign laws, validity of judgments pronounced overseas and verdicts of Indian Courts which need expounding are consequential issues requiring interpretation and expert opinion. Indian Courts perform a herculean task in carving individual solutions in complex litigations under outdated Indian legislations.The situation now will be more grim, as there will be no actual physical Court room litigation due to travel and other bans.
The spectrum of conflicts is widespread. It ranges from burning nationality/citizenship issues to family and marital settlements, surrogacy agreements, child custody conflicts, secular adoptions, limping marriages, succession issues, conflict of jurisdictions besides the need for revamping family law for non-resident Indians.Law of spousal maintenance in India from a worldwide perception needs constant judicial interpretation.Family and child disputes cannot wait. Child laws and global adoptions in an international jurisdiction as a fast emerging jurisprudence in Indian law, need answers when conventional Court hearings are not possible. Issues relating to dual nationality, passports and citizenship perspectives will require attention. Ailing family domestic violence quandaries will need resolution. Emerging predicaments and practices arising out of surrogacy with the law in flux will need answers.NRI property problems, Wills, succession and their possible solutions cannot wait.Will these disputes be litigated .Who will decide them. Where .When. How.Will we need new online laws for them .Who will make them.Unpredictable.
The European Commission is planning to ban all non-essential travel throughout Europe and the United States has already banned travel between Europe and the US. Australia has already decided to ban international travel in 2020. India’s international borders are sealed, except allowing emergency flights. An unparalleled pandemic crisis threatens human safety and public health. In this backdrop, all cross border family law litigation, wherever existing and arising, will have only online options. With physical movements frozen, rights of access to children in custodial battles will only be possible by online adjudication. All overseas matrimonial litigation may be reduced to video conferencing methods. As a member of the Justice Rajesh Bindal Committee constituted by the Government of India to formulate a report on inter-country child removal issues, the Author was a witness to various proceedings conducted with various stake holders worldwide via IT modes of Skype and Whatsapp contact. It was the only workable medium of eliciting views of all concerned. It worked. Ample precedent is alsoavailable through judgments of various High Courts exempting personal presence of parties in matrimonial litigation when spouses reside abroad. Undertakings are recorded through video conferencing and spouses are identified by representatives who appear before Indian Courts as power of attorney holders. Relaxations and waivers are granted as per law, in due exercise of judicial discretion, to bury the matrimonial hatchet. An online jurisprudence of family law litigation and settlement of matrimonial disputes has already evolved. It may now see a further evolution of e- acess and other virtual rights in a new global family law jurisprudence with domestic Courts in different nations enforcing them.
The Family Courts Act, 1984, enacted to secure speedy settlement of disputes relating to marriage and family affairs overrides all other laws in India. It permits a Family Court to lay down its own procedure with a view to arrive at a settlement in respect of matters before it and to arrive at the truth of the facts. For this process, the Family Court is not bound by formal admissibility provisions of the Indian Evidence Act, 1872. Hence, Family Courts have the liberty to devise their own procedure and seek assistance of medical or welfare experts, whenever desired. Right of legal representation by a lawyer is not permitted unless allowed by the Family Court. Australian Family Law Courts too, function independently. Recently, on March 31, the Family Court of Australia has changed its procedures of hearings and have issued exhaustive Joint Practice Directions 2020 – Special Measures in response to COVID-19. They contain complete details of documentation filing, listing of cases, telephone/video conference hearing, face to face protocol, Court room process, border restrictions and shared parenting orders, listing/mentioning methods ,besides interim hearing direction details with final hearing procedures. We in India can emulate these practice directions. To provide a uniform protocol, the National Judicial Academy, Bhopal ,can prepare a national e-module of COVID-19 Family Court procedures, where parties can be give the option to adopt
The Courts have to equip themselves now for a future in online dispensation of justice. A possible solution could be found in apportioning some judicial time on designated days for E-proceedings, in addition to normal Court working. The judicial system will have to devise ways and improvise means of allocating time for settlement of emergent child custody, matrimonial, domestic violence, spousal maintenance, inter-country adoptions, surrogacy, succession, inheritance issues besides resolving nationality and citizenship issues. The diaspora is huge. The problems are multifold. The resolution in law to provide access to justice has to switch gears to steer innew highways and drive over unseen flyovers which obstruct justice. The Rule of law cannot be blindsided by the emergencies of the hour.Judicial Academies must start preparingprogrammes for training of e modes. We cannot sacrifice our commitment to the Rule of law as the largest democracy in the World. Unique times pose exclusive problems. Laws are not silent.They speak through interpretation. They may change. Regardless, they answer the needs of the hour ina crisis. We must prepare for the future and look at virtual Courts as an alternative, exceptional and emergent option, which may ultimately develop to a new method of dispensing justice. Let us make a start to prepare for the future. The sooner the better. The Indian non-resident diaspora exceeding 30 million will invoke the jurisdiction of the Indian Courts for e -solutions in the coming future. Let us be prepared for them. Make haste while the sun shines. Amen.