Bombay High Court
Rohinton Panthkay vs Armin R. Panthaky on 3 April, 2014
Author: G.S. Patel
Bench: G.S.Patel
PS20-2013-F.DOC
Shephali
IN THE PARSI CHIEF MATRIMONIAL COURT
PARSI SUIT NO. 20 OF 2013
ROHINTON PANTHKAY
Aged about 53 years, occupation: retired,
Parsi Indian Inhabitant, presently residing
at Athornan Boarding Maddressa, Five
Gardens, Dadar, Mumbai 400 014
... Plaintiff
ig versus
ARMIN R. PANTHAKY
Aged about 53 years, occupation:
business, Parsi Indian Inhabitant, residing
at "C" Block, 2nd Floor, Bhiwandiwalla
Terrace, R.No.49-52, JSS Road, Dhobi
Talao, Mumbai 400 002 ... Defendant
ALONG WITH
NOTICE OF MOTION NO. 6 OF 2014
IN
PARSI SUIT NO. 20 OF 2013
Mr. Dinshaw R. Mehta & Ors. ... Applicants
In the matter between
Rohinton Panthaky ... Plaintiff
Versus
Armin R. Panthaky ... Defendant
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PS20-2013-F.DOC
And
1. Mr. Dinshaw R. Mehta
2. Mrs. Arnavaz Jal Mistry
3. Mr. Jimmy Rusy Mistry
4. Mr. Khojeste P. Mistree
5. Mr. Yazdy Hosi Desai
6. Mrs. Armaity Rustom Tirandaz
7. Mr. Muncherji N. Cama
All (1) to (7) being the present
Trustees of the Parsi Panchayet
Funds and Properties, Mumbai,
having their office at 209, Dr. D. N.
Road, Fort, Mumbai 400 001 ... Applicants
A PPEARANCES
AMICUS CURIAE Mr. D.J. Khambata, Senior Advocate,
Advocate-General for Maharashtra
Ms. F.D. Contractor
FOR THE PLAINTIFF
FOR THE DEFENDANT Ms. Z.S. Irani
FOR THE INTERVENORS Ms. Sanober Nanavati, i/b M/s Mulla &
Mulla & Craigie, Blunt & Caroe, for
Mr. Dinshaw R. Mehta & Ors,
trustees of the Bombay Parsi
Panchayet
Ms. Taubon F. Irani
CORAM : G.S.Patel, J.
JUDGEMENT RESERVED ON : 24th March 2014
JUDGEMENT PRONOUNCED ON : 3rd April 2014
JUDGMENT :(Per G.S. Patel, J.) 2 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC
1. In Notice of Motion No.6 of 2014, leave to intervene granted in terms of prayer (a) limited to the present hearing, as the applicants are the trustees of the Parsi Panchayet Funds and Properties and have sought to make submissions on a question of law. Motion disposed of in these terms.
I | The Issue at Hand
2. In a suit under the Parsi Marriage & Divorce Act, 1936, does the Court have the discretion to direct that evidence be recorded before a Commissioner under Order 18 Rule 4(2) of the Code of Civil Procedure, 1908, or must it only be recorded in Court with delegates present? There were, it seems, conflicting views on this question. Some courts permitted evidence to be recorded before a Commissioner. By an order dated 13th April 2012 in Jasmine Cusrow Damania v Cusrow Minoo Damania,1 a learned single Judge of this Court concluded that question was at least debatable, and left it open. In Damania v Damania, part of the evidence was taken on commission. The defendant applied for having the matter withdrawn to court and the commissioner, appointed earlier by consent, discharged. As the application was not for discarding the evidence previously recorded, but only that further evidence be taken in court, Mrs. R.P. Sondurbaldota, J. held that the application could be allowed without examining the larger issue.
3. On 14th February 2014, the present suit was taken up by Jamdar, J., to whom such suits were then assigned. The 13th April 1 In Notice of Motion No.14 of 2011 in Parsi Suit No.32 of 2008, per Mrs. R.P. Sondurbaldota, J.
3 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC 2012 order in Damania v Damania was placed before the court.
Jamdar, J. held that as the question of law, noted at the start of this judgment, would likely affect all contested Parsi matrimonial suits, it would be appropriate to consider the submissions of advocates in such matters. The learned Advocate-General, Mr. D.J. Khambata, was requested to assist the court. Before that hearing could take place, there was a change in assignment and Parsi suits were made part of my present assignment. Following the order of Jamdar, J., I directed the registry to issue a notice inviting advocates to make their submissions on 24th March 2014.
4. I have heard Mr. Khambata, the learned Advocate-General, Ms. Zenobia Irani, Ms. Sanober Nanavati, Ms. Contractor, and Ms. Taubon F. Irani, learned advocates, at length on the issue. But for Ms. Contractor, all the other advocates have, with quite startling vigour, refuted the view commended by Mr. Khambata. That view is, I believe, moderate, sensible and carefully studied. It attempts to balance the special requirements of the Parsi Marriage & Divorce Act, 1936 ("PMDA") with the discretionary powers of the court under Order 18, Rule 4(2) of the Code of Civil Procedure, 1908 ("CPC").
5. Briefly stated, I understood Mr. Khambata's submission to mean that it is not in the interest of justice that a court's discretion under the CPC be completely jettisoned. A balance can be struck, and well it should be having regard to that most scarce of a court's resources, judicial time. In a given case, or in certain special circumstances, it should be possible to quicken disposal of matters by referring part of the work, i.e., recording of evidence, to a 4 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC commissioner. If this saves the court's time, then it is not only no bad thing, but is perhaps a result devoutly to be wished for. It is no answer at all, in this day and age when all manner of technological means are readily and freely available at a court's disposal, to insist on a time-worn method of taking evidence. The provisions of the PMDA that require a jury of "delegates" to assist the court are substantive law. But how that assistance is to be rendered is a matter of procedure.
6. The response to this is that the requirements of the PMDA are special to a specific class of suits. There is a statutory intent in requiring the court to take the assistance of a jury of delegates. This cannot be circumvented in any manner or to the slightest degree.
For there to be assistance, the assistance must be meaningful, not illusory, for this is a matter of substance, not form. That assistance must be real and meaningful, not illusory.
II | Statutory Provisions
7. I will consider first the provisions of the PMDA. Section 18 of that act establishes "special courts" to hear suits under this Act. These are set up in the Presidency Towns and in other places where so notified. In the Presidency Towns (Calcutta, Madras and Bombay), these are called the Parsi Chief Matrimonial Court. Section 19 of the PMDA says:
19. Parsi Chief Matrimonial Courts. The Court so constituted in each of the Presidency towns shall be entitled the Parsi Chief Matrimonial Court of Calcutta, Madras or Bombay, as the case may be. The local limits 5 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC of the jurisdiction of a Parsi Chief Matrimonial Court shall be conterminous with the local limits of the ordinary original civil jurisdiction of the High Court. The Chief Justice of the High Court, or such other Judge of the same Court as the Chief Justice shall from time to time appoint shall be the Judge of such Matrimonial Court, and, in the trial of cases under this Act, he shall be aided by five delegates, except in regard to--
(a) interlocutory applications and proceedings;
(b) alimony and maintenance both
permanent as well as pendente lite;
(c) custody maintenance and education
of children; and
(d) all matters and proceedings other
than the regular hearing of cases.2
(emphasis supplied)
8. There is no ambiguity about this provision. "Regular hearing" can only mean the trial of cases under this Act, and a judge appointed under this Act is to be "aided" by five delegates. The exceptions cover those matters where delegates are not necessary.
9. These 'delegates' are, for all practical purposes, a jury. They are appointed under section 24 by the State Government, and their appointment is notified in the Official Gazette. Within the territorial jurisdiction of a High Court, no more than 30 such delegates can be appointed. Each delegate is appointed for 10 years, but is eligible for reappointment. Delegates are deemed to public servants. 3 The 2 The words "five delegates" were substituted for "seven delegates", and the four exceptions were added by a 1988 amendment.3
Section 25 6 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC delegates for a trial must be drawn from the pool of those so appointed.4
10. Sections 43 to 47 of the PMDA are material.
43. Suits to be heard in camera and may not be printed or published.
(1) Every suit filed under this Act shall be tried in camera and it shall not be lawful for any person to print or publish any matter in relation to any such case except a judgment of the Court printed or published with the previous (2) permission of the Court.
If any person prints or publishes any matter in contravention of the provisions contained in sub-
section (1), he shall be punishable with fine which may extend to one thousand rupees.
44. Validity of trial. Notwithstanding anything contained in section 19 or section 20 where in the case of a trial in a Parsi Matrimonial Court not less than three delegates have attended throughout the proceedings, the trial shall not be invalid by reason of the absence during any part thereof of the other delegates.
45. Provisions of Civil Procedure code to apply to suits under the Act. The provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall, so far as the same may be applicable, apply to proceedings in suits instituted under this Act including proceedings in execution and orders subsequent to decree:
Provided that the presiding Judge shall read out to the delegates the relevant sections of this Act, and may, if he consider it necessary so to do, explain the same:4
Section 27 7 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC Provided further that a verbatim record shall be made of what the presiding Judge reads out or explains to the delegates.
46. Determination of question of law and procedure and of fact. In suits under this Act all questions of law and procedure shall be determined by the presiding Judge; but the decision on the facts shall be the decision of the majority of the delegates before whom the case is tried:
Provided that, where such delegates are equally divided in opinion, the decision on the facts shall be the decision of the presiding Judge.
47. Appeal to High Court.
(1) An appeal shall lie to the High Court from--
(a) the decision of any Court established under this Act, whether a Chief Matrimonial Court or District Matrimonial Court, on the ground of the decision being contrary to some law or usage having the force of law, or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground; and
(b) the granting of leave by any such Court under sub-section (3) of section 29:
Provided that such appeal shall be instituted within three calendar months after the decision appealed from shall have been pronounced.
(2) Every appeal under sub- section (1) shall be heard by a Bench of two judges of the High Court.
(emphasis supplied) 8 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC
11. This legislative structure is remarkable for the manner in which it sets Parsi matrimonial suits in a class apart. We must remember that this is a legislation that pre-dates the country's Independence. More importantly, it pre-dates the abolition of the jury system in our criminal jurisprudence in the 1960's. In civil matters, it provides for a special jury, with a dedicated jury selection procedure. Even after the amendment of 1988, this system of delegates and a jury has been retained. We must, therefore, proceed on the footing that legislative wisdom thought it fit to retain within the PMDA a litigation structure that exists nowhere else in the country, not even in criminal law.
12. There can be no doubt at all that under the PMDA it is the delegates' verdict on facts that is final. No appeal lies from that verdict. Though there are to be five delegates, a reduction in that strength, so long as it does not fall below three, does not invalidate the trial. More specifically, all trials are mandatorily in camera. The judge decides questions of law and procedure.
13. The present controversy centres on Section 45, one that says that the provisions of the CPC shall, so far as may be applicable, apply to the PMDA. Now Order XVIII Rule 4(2) of the CPC says that the cross-examination and re-examination of the witness whose evidence has been filed on affidavit may be taken either by the Court or by a Commissioner appointed by it. In appointing a Commissioner, the Court may take into account such factors as it thinks fit.
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14. Section 19, reproduced earlier, now has four exceptions to the general rule requiring the presence of delegates at a trial. The fourth of these uses the words "other than the regular hearing" of a case. A "regular hearing" has been held by this court in Minoo Rustomji Shroff v Union of India5 to mean only a trial, not, for instance, a suit for divorce by mutual consent. Minoo Shroff noted, among other things, the difficulties that might result from a contrary view. As the Parsi Chief Matrimonial Court sits but once or twice a year, and for short durations, even a mutual consent petition under section 32B of the PMDA might be unduly delayed. That practical difficulty, however, was not a factor that weighed in the Court's construction of the statute, as indeed it could not have done.
15. What Mr. Khambata suggests is that since the CPC has, since its 2002 amendment, recognized the delays in trials of every description occasioned by having to take evidence in court, and has, for that reason, institutionalised the process of appointing commissioners to record evidence, that legislative intent must also find voice in interpreting the PMDA. After all, Section 45 incorporates the provisions of the CPC, though "as far as may be applicable". There is no logical reason for the complete exclusion of Order XVIII Rule 4(2) of the CPC. It is also true that it is the verdict of the delegates that is determinative on facts, but this does not mean, in Mr. Khambata's submission, that the trial ends once that verdict is returned. The trial ends after the decision of the judge, not the verdict of the jury.6 Therefore, the absence of the delegates even below the minimum number at the time of the judge's decision 5 2005 (4) Bom CR 147 6 Pistonji Kekobund Bharucha v Aloo, AIR 1984 Bom 75 10 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC does not invalidate the trial. This means that it is possible, in practical terms, to separate the work of the trial from the final result. The delegates may, for instance, be permitted to remain present during cross-examination on commission; there is nothing in the PMDA that prohibits this. The Act only requires that the delegates assist the judge and that they render their verdict on facts. The manner in which that is to be done is a matter entirely within the province of the judge, for Section 46 makes it clear that all questions of law and procedure are to be determined only by the judge.
16. What should be the approach of the Court in interpreting a statute of this nature? Mr. Khambata says it cannot be formulaic or doctrinaire, and that regard must be had to public policy. That policy demands, above all, a saving of judicial time where possible. A court always retains the discretion to decide how much of the trial should be taken on commission and in what manner. Audio and video recordings can be used to ensure fidelity, for instance. But a Court can always withdraw to itself at any time the taking of evidence if it believes that this in the interests of justice and will save time. That is, in terms, the decision of the Supreme Court in Salem Advocates' Bar Association v Union of India,7 (Salem-I). In Salem-II,8 the Supreme Court made it explicit that the Court's discretion in appointing or not appointing a Commissioner was unfettered. In suits of complexity, involving questions of fraud, forgery, disputed testamentary dispositions, partnerships actions and so on, a court may prefer to record the cross-examination itself. Mr. Khambata is quick to debunk what he describes as the 7 AIR 2003 SC 189 8 Salem Advocates' Bar Association v Union of India, AIR 2005 SC 3353 11 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC mythology of a witness's demeanour. Not only does Salem-II acknowledge legislative wisdom in according greater importance to judicial time than to a judge's observation of how a witness chooses to conduct himself in the witness box, but, he submits, no trial was ever won or lost only on the basis of a judge's noting of a witness's demeanour. Such notings are rare, to begin with. When they are made, they are used to assess the veracity of the witness's testimony in a general sense. Allowance is always made for lapses of memory, for the stress of being under cross-examination and so on. No cross-
examiner can demand that a judge note a witness's demeanour or that he do so in a particular manner. To suggest, therefore, that delegates in a Parsi matrimonial action are denied the benefit of a judge's ruling on a witness's demeanour is wholly incorrect. Such demeanour as they wish to observe can just as well be done before a commissioner, and under Order XVIII Rule 4(4) the commissioner himself has the right to make a noting of a witness's demeanour should the need arise. We must not therefore, Mr. Khambata submits, make a fetish of a witness's demeanour. We should, instead, heed closely the purpose of the 2002 amendment to the CPC that sought to save a court's time by allowing evidence to be recorded on commission as a general practice and not, as previously, in exceptional cases de bene esse. He relies on the decision of a Full Bench of this Court in Hemendra Rasiklal Ghia v Subodh Mody9 which noted the 163rd report of the Law Commission of India that an inordinate amount of the Court's time was taken in recording evidence and that this delayed case disposal. Another Full Bench of this Court in Harish Vithal Kulkarni v Pradeep Mahadev Sabnis10 9 2008 (6) Bom CR 519 (FB) 10 2010 (1) Bom CR 1 (FB) 12 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC noted that the court is not robbed of its discretion by the amended Order XVIII Rule 4.
17. Therefore, Mr. Khambata submits, the so-called 'requirement' of a court noting the demeanour of a witness is non- existent. A court may or may not make such a noting. Even when it does, it does not follow that that noting is necessarily determinative of the trial; indeed, it seldom is. This 'requirement' is evanescent and consequently dispensable. It certainly cannot be allowed to outweigh the very real concern of saving judicial time, a matter of legislative intent to which the Supreme Court and our Court have accorded primacy. He cites Wigmore on Evidence to say that seeing the demeanour of a witness is merely desirable, not essential; and that it is not, in any sense, a requirement. Between demeanour evidence and saving judicial time, it is the latter that must receive importance.
18. The PMDA itself (i) allows the judge to determine procedure and (ii) makes the provisions of the CPC applicable. The judge is to be 'aided' by five delegates. This does not and cannot oust the discretion of the Court under Order XVIII Rule 4 of the CPC. Between them, Sections 45 and 46 of the PMDA allow a judge to make the provisions of Order XVIII Rule 4 applicable to Parsi Matrimonial trials.
19. Mr. Khambata was, I think, misunderstood in his submissions by the learned advocates who canvassed the contrary view. I did not understand him to say that in every Parsi matrimonial trial every judge must necessarily appoint a commissioner to record evidence;
13 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC only that such a discretion continues to be vested in the court and that there is nothing in the PMDA to exclude it.
20. Ms. Zenobia Irani submitted that this is a special law for a minority community and should not be 'tampered'. She and Ms. Taubon Irani both relied on Sections 45 and 46 of the PMD, read with Section 19, to say that the presence of delegates is vital. Ms. Nanavati, appearing for the intervenor, the trustees of the Parsi Panchayet Funds and Properties, cited the Supreme Court decision in Vidyabai v Pamalatha & Anr.11 to submit that the provisions of the CPC that apply to regular trials cannot possibly apply to Parsi matrimonial suits. After all, an appeal lies only on a question of law; i.e., against the decision of the judge, not the verdict of the delegates on facts. The delegates must decide on facts, and that means they must hear the facts. It is only if they are equally divided in their view that the judge steps in. Indeed, parties cannot even by consent have the evidence taken before a commissioner. The scheme of the PMDA wholly prohibits any such course of action. If the delegates are to hear the facts before a commissioner then there is no possibility of them being able to 'aid' the judge, she says.
21. Ms. Contractor, on the other hand, supports Mr. Khambata. Between a general law, the CPC, and a special law, the PMDA, the latter will prevail only on substantive law, not on procedure. Fairly read, she submits, the PMDA does not accord any great 'primacy' to delegates. It affords them a role, ring-fences their decision on facts and leaves it at that. There is nothing, she submits, that 11 AIR 2009 SC 1433 14 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC warrants a greater delay in the disposal of Parsi matrimonial cases by insisting on a long-drawn procedure.
IV | Findings and Conclusions
22. I regret that I am not persuaded by the submissions made by Ms. Zenobia Irani, Ms. Nanavati, and Ms. Taubon Irani. Where they see a 'conflict' between the CPC and the PMDA, I see none. What they suggest is the complete defenestration of all judicial discretion in a procedural matter, i.e., how evidence ought to be taken. What they seek is an extrapolation of a narrowly tailored substantive provision to an expansive over-ride of a broad procedural discretion that applies to all classes of suits. I note that Order XVIII Rule 4 does not, for instance, contain any words of exclusion or a non- obstante clause. Had it said, for instance, "Unless otherwise provided in any law for the time being in force," or suggested by some similar words the explicit or implicit exclusion of other statutes, perhaps different considerations might arise. Not only are there no such words of exclusion, but what the PMDA says instead in Section 45 is that the provisions of the CPC shall, so far as applicable, apply to suits under the PMDA. It is not, I think, possible to read the word "shall" as a permissive or discretionary "may". The word is clearly mandatory and the intention is, as Ms. Contractor says, to bring some procedural uniformity to civil trials of every stripe. The following words "so far as applicable" require that the PMDA have a procedural exclusion specifically or by necessary implication, if the provisions of the CPC are not to apply. The appellate provisions of the CPC are, thus, clearly excluded in part, in that a first appeal does not lie as a matter of right on 15 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC questions of fact. But there is nothing in the statutory mandate of having delegates and requiring them to 'aid' the presiding judge that suggests that a particular trial procedure, and that alone, be followed to the exclusion of all other methods. The verdict of the delegates is certainly unassailable in appeal; but the delegates are only to aid a judge, not to decide a matter in its entirety. The word 'aid' must be construed in its ordinary grammatical sense, and it means only to assist or help. It cannot be read to mean that the delegates will present the judge with the final decision for the court's imprimatur.
The delegates' verdict does not end the trial; the decision of the judge does, and therein lies the difference.
23. What if a witness is taken ill? Or is infirm, or outside the jurisdiction of the court and is unable to come to court? Is his testimony to be excluded? Alternatives abound; but if in these cases, the delegates must travel to wherever that witness may be, or be present in the absence of the judge when evidence is taken over a video conference link, then surely it follows that evidence before a Commissioner stands on no different a footing.
24. How that aid or help or assistance is to be provided is a matter on which the PMDA is entirely silent. What Ms. Zenobia Irani, Ms. Taubon Irani and Ms. Nanavati suggest is, I believe, that this 'aid' is impossible unless a trial is conducted in court. That cannot be. No one has suggested, for instance, that evidence by way of examination-in-chief should not be on affidavit. Yet that, too, is a provision introduced by the 2002 amendment to the CPC. To accept that but to also say that the court can never and under any circumstances permit commission on evidence is to say that some 16 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC provisions of the amended CPC can be plucked at will and introduced into the PMDA, but others must not. If that be so, then, again, it must be shown with some more convincing or cogent material that the recording of evidence on commission is wholly anathema to the structure of the PMDA. There is no such material.
25. Indeed, I find material to the contrary, and I find it in the affidavit of the intervenors, the trustees of the Parsi Panchayet Funds and Properties. Paragraph 14 of that affidavit says that there has been so session of the Parsi Chief Matrimonial Court with delegates since March 2012. This means that for two years all contested Parsi matrimonial matters are wholly at a standstill. No progress has been made. The parties to a divorce action must continue to wait the next session, one that requires at least eight weeks' advance notice to empanel a jury of delegates, and for a court to set aside time from an already over-burdened docket. If, on the other hand, as Mr. Khambata suggests, a via-media be found, one that could accelerate the time frames to disposal without in any way impeaching the integrity of the PMDA, the parties in a cause under that Act would undoubtedly be the greatest beneficiaries. I venture to suggest that the public policy of which Mr. Khambata speaks is not limited to a court or the saving of a court's time; it is a policy directed to attempting a quicker closure for the parties to a litigation. I see a very great deal of merit in Mr. Khambata's argument, expressed in writing in his written submissions thus:
22. The CPC permits the recording of evidence by a Commissioner and it is not mandatory to record evidence in Court in the presence of the Judge as part of the regular hearing of a suit. If that be so, then there is no 17 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC reason why it is then assumed to be imperative or fundamental that delegates must see the demeanour of a witness and hear the evidence being recorded. What is good for a Judge in deciding questions of fact (some of them complex and highly disputed) at a civil trial under the CPC should also be good for delegates under the Act.
Taking a different approach under the Act would visit a hostile discrimination upon trials under the CPC.
26. Of the demeanour-evidence argument, perhaps the less said the better. I have already noted that it is at best a highly subjective matter, always only desirable, never essential. What is imperative, on the other hand, is the telescoping of time-frames to disposal of cases, not only to save the time of the court but also to ensure speedier justice to the parties. Therefore, merely because it may be, in a given case, useful to notice the demeanour of a witness is no justification for so slavish an adherence to a prelapsarian procedural norm when alternatives exist.
27. The submission regarding this being a special law for a minority community and that any change or adaptation is tampering is one that I must repel most firmly. Indeed, this is not a submission that ought ever to have been made. Belonging to any particular community is not a mantra for clinging to a system that ill serves its purpose or the interests of the community itself. A procedural reform is not a matter of faith or religion. Nor is what Mr. Khambata suggests irreligious or, in any sense, a 'tampering'. Achieving a fair and just result by and within law is no apostasy. No faith could possibly demand that its adherents be made to wait endlessly for their cases to be decided. Indeed, it would not be stretching it too far to suggest that the entire structure of delegates is now anachronistic, 18 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC especially if it tends to delay the disposal of matters, and that there is a powerful case to be made here for doing away with the delegate system altogether, and to introduce greater conformity with other civil laws. This is what Ms. Contractor suggests, and it is hard to find fault with her submission. What is needed is greater inclusiveness, not a persistence on exclusion.
28. Experience suggests that there may be circumstances that require special care. There is the issue of additional costs, for one thing. But since it is not suggested that every matter must necessarily be so referred, the financial position of the parties and whether they can afford the costs of a commissioner will no doubt be factors of which a court will be mindful, as courts always do.
Second, there is the fact, again from experience, that cross- examinations before a commissioner tend to be prolonged, with all manner of unnecessary questions being asked and recorded. This is more a matter of case management than a reason to rob a court of procedural discretion. Every court must evolve its own methods. A commissioner could, for instance, be required to complete the cross- examination in a pre-defined time period. She could be set at liberty to apply to court if she finds the cross-examination spiralling in all directions. Every matter sent to the commissioner could be set down for directions after two or three weeks as a method of monitoring progress. The possibilities are, of course, endless, and it is for the court to carefully chalk out a procedure, a matter that it is specifically empowered to do under Section 46.
29. To ensure fidelity to the record, Mr. Khambata's suggestion of audio and perhaps even video recordings of the proceedings 19 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC before a commissioner being maintained since delegates will be present before the Commissioner, is one that needs consideration. There can be no technological difficulty with this; even the High Court's own facilities permit this at next to no additional cost. It is equally possible, for instance, to video record the entire work of the Commission and for the judge and the delegates to then hear it fully in camera. Again, none of this is beyond the realm of possibility. I do not, in fact, see as very distant a time when each of the five delegates, the parties, the witnesses, the lawyers and the Judge or the Commissioner are all in different locations and yet able to work 'together' at the same time.
30. It goes without saying, I believe, that some additional safeguards are necessary. For instance, documents admissible in evidence must be marked before the matter is sent to a Commissioner so that the delegates are not flooded with material later excised from the record and the judge is not presented with the difficulty of having to instruct the delegates what documentary material they must and must not consider. Once the evidence is complete, the delegates and the Judge must then together hear the submissions of advocates including as to any objections taken. The delegates will be able to aid the Judge in their assessment of the witnesses at trial, and the Judge to guide the delegates through the evidence on record. In a regular civil trial, this level of care is not necessary simply because there is no third entity, the jury, involved. But because additional circumspection and care are necessary are not reason enough to abdicate our collective responsibility toward the achievement of a desirable public policy objective: ensuring the completion of trials in a reasonable period of time.
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31. What matters might be reserved by a court to itself for trial? I imagine these might be cases where there is, embedded in the case material, a question of, say, private international law or jurisdictional conflicts. There, the delegates might need to be carefully guided through the evidentiary material. Or there may be questions of forgery. It is not, of course, possible to enumerate completely this class of matters. It is sufficient to say that there will be some that a court should and must, in exercise of its discretion, retain to itself.
32. The interpretation Mr. Khambata suggests subserves justice. It allows for expedited hearings and quick disposal of cases. It conserves time, both of the court and of the parties. It is an interpretation that brings the procedure under the PMDA in line with the CPC and with the public policy objective of the latter. The purpose of the PMDA is equally achieved by allowing the delegates to be present while evidence is being recorded on commission; or even by later viewing, with the Judge, an audio-visual recording of the commission. In either case, the involvement of the delegates to the extent required by the statute is assured; and the issue of demeanour-evidence, assuming it is of significance, is also addressed.
33. There is, therefore, no conflict between the provisions of the Parsi Marriage & Divorce Act, 1936 and the Code of Civil Procedure, 1908. There is no repugnancy between the two statutes, substantive or procedural. The provisions of the PMDA do not exclude, either explicitly or by necessary implication, the provisions of the CPC and, in particular, Order XVIII Rule 4. A Parsi Chief Matrimonial Court may, in its discretion, permit evidence to be 21 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC taken on commission and may institute such safeguards and measures as it thinks necessary for that purpose. It is not necessary for a Parsi Chief Matrimonial Court to sit at all times with the delegates to hear the trial of the matter, nor is this the only manner in which the delegates can aid the presiding Judge as required by Section 19 of the PMDA. That section does not exclude the provisions of Order XVIII Rule 4 of the CPC.
34. I must, in conclusion, note a decision of the Supreme Court in National Textile Workers' Union v P. R. Ramakrishnan.12 In the memorable words of Justice Bhagwati:
"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. ... if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the more adapting itself to the fast changing society and not lag behind."
35. These words were quoted by the Supreme Court in a criminal matter, where cross-examination of a witness by video-conferencing was permitted.13 That decision was, itself, relied on in subsequent criminal matters.14 If the rigour of a criminal trial has been held to lend itself to a technological convenience, then I see no reason why 12 (1983) 1 SCC 228 13 State of Maharashtra v Dr. Praful B. Desai & Anr., (2003) 4 SCC 601.
14Sakshi v Union of India, (2004) 5 SCC 518; Kalyan Chandra Sarkar v Rajesh Ranjan alias Pappu Yadav & Anr., (2005) 3 SCC 284; State of Punjab & Ors. v Amritsar Beverages Ltd and Ors., (2006) 7 SCC 607;
22 of 23 ::: Downloaded on - 15/04/2014 22:28:40 ::: PS20-2013-F.DOC a more generous allowance ought not to be made for a civil trial, especially in a situation where parties have long been compelled to wait for their cases to progress.
36. It is impossible to conceive of a system where justice is served in the absence of both efficiency and expedition. Those are the twin legislative mandates of the 2002 amendment to the CPC. We ignore them at our peril. The costs of turning our back on these legislative imperatives are far too high. These are not merely financial costs either. Remembering always that we are here concerned with contested matrimonial cases, there are the significant hidden and non-monetary costs of ongoing uncertainty, continued trauma and increasing despair. These costs fall to the lot of those our courts are meant to serve, the litigants who come to us; and it matters not to what denomination those litigants belong or what faith they profess.
"Justice" requires many things, fairness, equity, and tolerance among them. But this much is certain: delay denies justice; despatch defines it.
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