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2004 DIGILAW 1433 (MAD)

R. Sridhar v. R. Sukanya and others

2004-10-29

S.ASHOK KUMAR

body2004
ORDER: C.M.RNo.15875 of 2004 has been filed to stay all further proceedings in O.P.No.569 of 2004 on the file of the Principal Family Court at Chennai pending disposal of the main civil revision petition. 2. V.C.M.P.No.16153 of 2004 has been filed to vacate the interim stay granted by this Court on 29.9.2004 in C.M.P.No.15875 of 2004. 3. Civil Revision Petition No.1695 of 2004 has been filed against the order dated 27.7.2004 in I.A.No.848 of 2004 in O.P.No.569 of 2004 pending on the file of the Principal Family Court, Chennai. 4. The petitioner in the C.R.P. is the wife of the first respondent in O.P.No.569 of 2004 on the file of the Principal Family Court, Chennai. The petitioner filed I.A.No.848 of 2004 in the said Original Petition to restrain the respondents 2 to 5 in any manner printing or publishing any proceedings relating to the institution of the petition filed by the petitioner before the Family Court or carry any other recital as a news item in the telecast or their respective publication and to punish them for any such violation. 5. The learned trial Court Judge dismissed the said Interlocutory Application on the ground that the respondents have not contravened the provisions of Sec.22 of the Hindu Marriage Act they are not liable for any punishment to be made under the provision of Hindu Marriage Act and if they contravened the said provision action has to be taken in a different forum. Aggrieved over the said order, the present civil revision petition has been filed by the petitioner and further proceedings was stayed by this Court by order dated 29.9.2004 in C.M.P.No.15875 of 2004. 6. The learned senior counsel for the revision petitioner contends that in view of Sec.22 of Hindu Marriage Act, 1955 the proceedings shall be conducted in camera in the Family Court and such proceedings should not be printed or published in any manner except a judgment rendered by a High Court or of the Supreme Court with the prior permission of such Courts. The contention of respondents 2 to 5 is that publication of newsitems with regard to the Court proceedings is a fundamental right and the same cannot be curtailed by an order of injunction or stay. 7. The contention of respondents 2 to 5 is that publication of newsitems with regard to the Court proceedings is a fundamental right and the same cannot be curtailed by an order of injunction or stay. 7. The learned senior counsel for the petitioner contends that the petitioner is an Actress by profession and publishing the Court proceedings held in the Court damages her reputation, causing irreparable injury. The learned senior counsel Mr.K.Chandru relies on the prohibition clause enshrined in Sec.22 of the Hindu Marriage Act, 1955. Sec.22 of the said Act reads as follows: “22. Proceedings to be in camera and may not be printed or published: (1) Every proceedings under this Act shall be conducted in camera and it shall not be lawful for any person to print or 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-sec.(1) he shall be punishable with fine which may extend to one thousand rupees.” 8. As per the above Section, the proceedings in a matrimonial case should not be printed or published, except the judgments of the High Court or Supreme Court that too with the permission of the Court. Learned counsel for the respondents 2 to 5 would contend that there is no analogous provision in the Family Court Act, 1984, which prohibits any publication and the Family Courts Act, 1984 has got overriding effect on the Hindu Marriage Act, 1955. 9. It is true that the Family Courts Act, 1984 is a later Act, whereas the Hindu Marriage Act is of the year 1955. A careful reading of the Family Courts Act, 1984 would reveal that the Act is intended for the establishment of special Courts called "Family Courts" in every City or Town with a population exceeding one million. The purpose of establishing such family Courts was for speedy settlement of family disputes. The preamble portion of the Family Courts Act, 1984 reads as follows: "From time to time, it has been urged by several organizations of women, other organizations and individuals that Family Courts be set up for the settlement of family disputes. The purpose of establishing such family Courts was for speedy settlement of family disputes. The preamble portion of the Family Courts Act, 1984 reads as follows: "From time to time, it has been urged by several organizations of women, other organizations and individuals that Family Courts be set up for the settlement of family disputes. The Law Commission in its 59th report had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from that adopted is ordinary civil proceedings and that it should take 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 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 speed settlement of family disputes. Accordingly the Family Courts Bill was included in the Parliament". 10. The Objects and Reasons for introducing such a Bill are: "Several associations of women, other organisation and individuals have urged from time to time, that family Courts to be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and ad- herence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th 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 proceeding and that it should make reasonable efforts at settlement before the commencement of 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 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. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family 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. The Bill inter alia, seeks to (a) provide for establishment of Family Courts by the State Governments; (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 other than those specified in (b) above; (d) exclusively provide within the jurisdiction of the Family Courts the matters relating to: (i) matrimonial relief, including nullity of marriage, judicial 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; (iv) guardianship of a person or the custody of any minor; (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 proceedings will be informal and rigid rules of procedure shall not apply; (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; (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; (h) simplify the rules or evidence and procedure so as to enable a Family Court to deal effectively with a dispute; (ii) provide or only one right of appeal which shall lie to the High Court.“ 11. A careful reading of the entire provisions of the Family Courts Act, 1984 would reveal that it confers jurisdiction with regard to pending proceedings and the duty of the Family Courts in matters of matrimonial settlement and the procedures. A careful reading of the entire provisions of the Family Courts Act, 1984 would reveal that it confers jurisdiction with regard to pending proceedings and the duty of the Family Courts in matters of matrimonial settlement and the procedures. The Family Courts Act, 1984 is silent with regard to the proceedings to be conducted in camera and the bar to print or publish any mater in relation to any such proceeding and also the punishment for violating the prohibition as provided under Sec.22 of the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955 is concerned with parties who are Hindus who approach the Court for nullity of marriage, divorce, restitution of conjugal rights, maintenance for the wife and children etc. The Hindu Marriage Act, 1955 is applicable to those par- ties who are Hindus, whereas the Family Courts Act, 1984 is applicable to all parties irrespective of their religion. Thus a case under Hindu Marriage Act, 1955 can be instituted in any Court in mofussil areas, where there is no such establishment of Family Court, whereas a matrimonial case should be instituted only in the Family Courts where such Courts are constituted under Sec.3 of the Family Courts Act, 1984. Such Family Courts are to be established by the respective State Governments in every City or Town with a population exceeding one million. Therefore, it is clear that in an area where there is no Family Court established under the said Act, the cases have to be instituted only in the District Court or Sub Court concerned. The contention that Sec.20 of the Family Courts Act has a overriding effect over any other enactment and in view of the same, Sec.11 of the Family Courts Act should prevail over Sec.22 of the Hindu Marriage Act is not sustainable. First of all Family Courts Act is only a procedural law providing for establishment of family Courts relating to all family matters and as per Sec.3(a) it was first established only in areas comprising a city or town where the population exceeds one million. In respect of areas where no family Courts is constituted it is the normal civil Court established that deals with matrimonial disputes. In respect of areas where no family Courts is constituted it is the normal civil Court established that deals with matrimonial disputes. If the argument of the respondents are accepted then there will be two sets of results i.e., See.22 of the Hindu Marriage Act will be enforced by Civil Courts in rural areas where there are no Family Courts and Sec.11 of Family Courts Act will be enforced by the Family Court in cities where such Courts are established.” 12. The Family Courts Act is only a procedural law and the substantive law relating to family matters may vary from person to person depending on the religion and the respective personal laws. When a Family Court deals with the matrimonial disputes of Hindu it has to only enforce the provisions of the Hindu Marriage Act and Sec.22 of the said Act in this regard is mandatory. If other personal laws like Christian, Parsi or Mohamedan laws do not provide for in camera proceedings, whether there can be ban on publication or not will have to be decided on the basis of Sec.11. The section confers a discretion on the Judge and also grants a right to the parties to have the proceedings held in camera. In fact Sec.11 confers a special right on the party to demand in camera proceedings and there is no discretion vested with the Court when such a request is made by either party to the dispute. This only strengthens the arguments of the learned counsel for the petitioner that even under the Family Courts Act, there is no scope for any publication or printing or the proceedings under the said Act on the violation of the Press and other electronic media. Therefore, the contention of the leaned counsel for the respondents 2 to 5 that the Family Courts Act, 1984 has got overriding effect on the Hindus Marriage Act, 1955 is not sustainable. 13. Sec.22 of the Hindu Marriage Act, 1955 recognizes the "right to privacy between the parties in a proceedings conducted under the Hindu Marriage Act. Therefore, the contention of the leaned counsel for the respondents 2 to 5 that the Family Courts Act, 1984 has got overriding effect on the Hindus Marriage Act, 1955 is not sustainable. 13. Sec.22 of the Hindu Marriage Act, 1955 recognizes the "right to privacy between the parties in a proceedings conducted under the Hindu Marriage Act. It has been clearly mentioned in Sec.22 of the said Act that the proceedings under the Act should be conducted in camera and shall not be lawful for any person to print or publish any matter relates to such proceedings and if any one contravenes such bar he is liable for punishment with a fine which may extend to one thousand rupees. 14. Right to Privacy has been recognised by Indian Courts. In Gobind v. State of Madhya Pradesh and another, (1975)2 S.C.C. 148 , their Lordships of the Supreme Court held as follows: "24. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical pic- ture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty." 15. As far as this case is concerned, it is divorce proceedings between the petitioner and the first respondent and the petitioner is a cine actress and the first respondent is an employee in United States of America. The first respondent is on leave to attend his case. He is unable to leave for America without the case being heard. Therefore, the interim stay of all further proceedings in the original petition ought to be vacated in the interest of justice. At the same time the interest of the petitioner also has to be taken note of as publication or telecast of the proceedings conducted in Court will harm her reputation and cause injury. 16. In the above circumstances, C.M.P.No.16153 of 2004, taken out by the first respondent is allowed in part and the interim stay already granted by this Court on 29.9.2004 in C.M.P.No.15875 of 2004 is vacated only with regard to conduct of further trial in the original petition. 16. In the above circumstances, C.M.P.No.16153 of 2004, taken out by the first respondent is allowed in part and the interim stay already granted by this Court on 29.9.2004 in C.M.P.No.15875 of 2004 is vacated only with regard to conduct of further trial in the original petition. However, the respondents 2 to 5 are restrained from publishing or telecasting the matrimonial proceedings relating to the revision petitioner in any way in view of Sec.22 of the Hindu Marriage Act, 1955.