Madras High Court
R.Sukanya vs R.Sridhar on 18 August, 2008
Equivalent citations: AIR 2008 MADRAS 244, 2009 (1) ABR (NOC) 38 (MAD), 2009 (1) AJHAR (NOC) 17 (MAD), 2009 AIHC NOC 13, (2009) 2 CIVILCOURTC 103, (2008) 6 MAD LJ 1171, (2008) MATLR 737, (2009) 1 CURCC 182, (2009) 73 ALLINDCAS 674 (MAD), (2008) 5 CTC 228 (MAD)
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2008
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
C.R.P.(PD)No.1695 of 2004
C.M.P.No.15876 of 2004
R.Sukanya ... Petitioner
v.
1. R.Sridhar
2. The Chairman and Managing Director,
Sun Network/Sun TV,
367, Anna Salai, Teynampet,
Chennai-18.
3. The Editor,
Dinamalar,
219, Anna Salai, Chennai-2.
4. The Editor,
Daily Thanthi,
E.V.K.Sampath Salai,
Vepery, Chennai-7.
5. The Editor,
Dinakaran,
229, Kutchery Road,
Mylapore, Chennai-4. ... Respondents
Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decretal order dated 21.07.2004 made in I.A.No.848 of 2004 in O.P.No.569 of 2004, on the file of the Principal Family Court at Chennai.
For Petitioners : Mr.K.Kannan
For 1st Respondent : Ms.K.M.Nalinishree
For 2nd Respondent : Mr.Y.Anil Kumar
For 3rd Respondent : Mr.K.J.Rebello
For 4th Respondent : Mr.V.Sanjeevi
For 5th Respondent : Mr.K.S.Natarajan
O R D E R
This Civil Revision Petition is directed against the order and decretal order dated 21.07.2004 made in I.A.No.848 of 2004 in O.P.No.569 of 2004, on the file of the Principal Family Court at Chennai.
2. Facts leading to the Civil Revision Petition are as follows:
The revision petitioner has filed O.P.No.569 of 2004 on the file of the Principal Family Court, Chennai for divorce. She filed an application in I.A.NO.848 of 2004, in the above O.P., to restrain the respondents 2 to 5 in any manner, printing or publishing the proceedings relating to the institution of the petition filed by her before the Family Court or carry any other recital as news item in the telecast or their respective publication and to punish them for any such violation. The trial Court dismissed the said I.A., on the ground that the respondents have not contravened the provisions of Section 22 of the Hindu Marriage Act and that they are not liable for any punishment under the provisions of the said Act and if they contravene the said provision, action has to be taken before the appropriate forum. Before this Court, the first respondent has agreed that the proceedings may be conducted "in camera" and that no publicity be given. On the other hand, the press had contended that the provisions of Section 11 of the Family Court will have an overriding effect on Section 20 of the Hindu Marriage Act.
3. Even at the stage of interim application of stay, this Court after considering the scope and extent of Section 22(1) of the Hindu Marriage Act and the provisions of the Family Courts Act, 1984 at Paragraphs 12 to 16, has held as follows:
"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 S.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 learned 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. Section 22 of the Hindus 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 extent to one thousand rupees.
14. Right of Privacy has been recognized 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 picture 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 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 29.09.2004 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 petition in any way in view of Sec.22 of the Hindu Marriage Act, 1955."
4. The order of this Court restraining them from publishing or telecasting the matrimonial proceedings relating to the revision petitioner has not been challenged on appeal. In addition to what is stated above, I would like to add few paragraphs on the issue of right of privacy, in relation to matrimonial matters between the litigating parties.
5. The Universal Declaration of Human Rights in Article 12 states that, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
6. Freedom of speech and expression, includes right not only to speak, but includes right to print, publish, distribute, receive information. But whether this right is unrestricted, unlimited and the journalists and the media are given a total freehand to publish or telecast anything they desire? Whether right of freedom of speech and expression guaranteed under Article 19(1)(g) of the Constitution of India can simply be exercised to invade into the privacy of life, which is exclusively reserved to an individual? Whatever transpires in between the litigants to a matrimonial dispute in a Court of law can it be made public? The answer to all the queries would be that rights guaranteed under Article 19(1)(g) are subject to reasonable restrictions imposed in the Constitution of India and the laws framed thereunder.
7. A reader of a newspaper, magazine or a person who watches the television or internet would be too curious to know what's happening in other's life, but would he expect something to be flashed about his own matrimonial life in press or other form of media? Information can be collected by the press or any other media, like photographs, videotapes, printed matter etc., or it could be even information through interviews either from the parties to the marriage or from any body else.
8. Faced with a situation, whether the pressman/journalist would like to publish any matter pertaining his own matrimonial affair, without his consent or matter relating to any matrimonial litigation, affecting his right of privacy? The Supreme Court in Mr.X v. Hospital Z reported in 1998 (8) SCC 296, at Paragraph 15, explained what is meant by 'right' in legal parlance and it is extracted:
"15. Right is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined right. In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a legal right are that the right is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right."
9. While dealing with the right of privacy vis-a-vis the right of the press, the Supreme Court in R.Rajagopal v. State of T.N., reported in 1994 (6) SCC 632 has held as follows:
"26. (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
10. 'Privacy' has been defined as "the rightful claim of an individual to determine to which he wishes to share himself with others and control over the time, place and circumstances to communicate with others". It means the individuals right to control dissemination of information about himself. It is his own personal possession. It is well accepted that one person's right to know and be informed may violate another's right of privacy. In other words, disclosure of certain facts, events, actions, photographs, videotapes, in any form of media, print or celluloid, internet would cause embarrassment, agony emotional stress, to a person of reasonable sensitiveness. 'Right of Privacy' in otherwords can be said "to be let alone". What is an information to others according to a journalist, Could be a personal and sensitive information to an individual in a litigation relating to a matrimonial dispute. The boundary between freedom of press and privacy of individual is the "Lakshman Rekha" and if the media, crosses the line of boundary, the invasion starts. To Strike a balance between these two competing interests is difficult. Right of privacy, vis-a-vis right of information to be furnished to the general public, in otherwords, the right of the media, should be with reference to the kind of information which the law permits. We all know that Constitution does not guarantee absolute freedom or absolute protection to the media. Provisions of certain enactments would amply demonstrate the inherent restrictions on freedom of speech and expression, like the one prescribed under Article 19(1)(g) of the Constitution of India. Reasonable restrictions imposed in certain statutes as follows:
11. Section 337 of the Code of Criminal Procedure deals with Court to be open and it reads as follows:
"(1) The place in which any Criminal Court s held for the purpose of inquiring or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them;
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C or Section 376-D of the Indian Penal Code (45 of 1860) shall be conducted in camera.
Provided that the Presiding Judge may, if he things fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court.
(3) Where any proceedings are held under sub-Section (2), it shall not be lawful for any person to print or publish any matter in relation to any proceedings, except with the previous permission of the Court."
12. Sections 3 and 4 of the Indecent Representation of Women (Prohibition Act), 1980, reads as follows:
"3. Prohibition of advertisements containing indecent representation of woman:- No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.
4. Prohibition of Publication or sending by post of books, pamphlets, etc., containing indecent representation of women:- No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form:
Provided that nothing in this Section shall apply to-
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art, or learning or other object of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in, -
(i) any ancient monument within the meaning of the Ancient Monument and Archaeological sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purposes;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be applicable."
13. Section 7(1)(c) of the Medical Termination of Pregnancy Act, (34 of 1971) is extracted hereunder:
"(c) Prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished in pursuance of such regulations."
14. Section 22 of the Hindu Marriage Act deals with the proceedings to be held in camera and they shall not be printed and published and it reads as follows:
"(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relatino 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 (1), he shall be punishable with fine which may extend to one thousand rupees."
15. Section 33 of the Special Marriage Act (43 of 1954) deals with the proceedings to be in camera and may not be printed or published and it is extracted below:
"(1) Every proceeding 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-Section (1), he shall be punishable with fine which may extend to one thousand rupees."
16. Section 36 of the Children Act, 1960 deals with the Prohibition or publications of names, etc., of children involved in any proceeding under the Act and it reads as follows:
"(1) No report in any newspaper, magazine or news sheet of any inquiry regarding a child under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the child, nor shall any picture of any such child be published:
Provided that for reasons to be recorded in writing the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
(2) Any person contravening the provisions of sub-section (1) shall be punishable with fine which may extend to one thousand rupees."
17. Visualizing the adverse effect on the women and children and exploitation of the vulnerable section of the society, the legislators have imposed reasonable restriction on the freedom of the media and press. Reading of these provisions makes it clear that the intention of the legislation is to maintain secrecy in respect of certain proceedings or inquiry and protect women and children from invasion of their right of privacy. These statutory restrictions are to protect their basic human right to lead life without hindrance from anyone in such of those enumerated matters and the media should not impinge upon the right of privacy, in otherwords, they should be allowed "to be let alone". "Right of Privacy" is now recognised as a right which flows from right to life and liberty under Article 21 of the Constitution of India.
18. Media attention should be towards exposing corruption, nepotism, law breaking, abuse or arbitrary exercise of power, law and order, economy, health, science and technology etc., which are matters of public interest. The "Lakshman Rekha" or the "line of control", should be that the publication of comments/information should not invade into the privacy of an individual, unless outweighed by bona fide and genuine public interest. Right of information is a facet of freedom of speech and expression, enshrined in Article 19(1)(a) of the Constitution of India. Right of Information has been recognised as a Fundamental Right and the Right of Press to furnish the information or facts or opinion should be only to foster public interest and not to encroach upon the privacy of an individual. The public at large has no fundamental or legal right to get any information or intrude into the personal life of the other individual. Statutes empower the authorities to examine the parties, under exceptional circumstances, contained therein. When the public at large has no legal right to impinge upon the marital privacy, the press or any other media cannot claim a better right to publish in newspaper, magazine or any other form of media, in exercise of freedom of speech and expression.
19. Shrouds Judicial Dictionary, Vol.4 (IV Edition), defines "Public Interest" as "A matter of public or general interest, does not mean that which is a interesting as gratifying curiosity or a love of information or amusement but that in which a class of community have a pecuniary interest, or some interest by which their legal rights or liability are affected.
20. In Black's Law Dictionary (Sixth Edition), 'Public Interest', is defined as follows:
"Public Interest Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local State or national government.................."
21. Section 22(1) of the Hindu Marriage Act states that every proceeding 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. The Supreme Court in Babu Lal v. Hazari Lal Krishori Lal reported in (1982) 1 SCC 525, held that the word "proceeding" is a very comprehensive term and generally speaking means a prescribed cause of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. Again in P.L.Kantha Rao v. State of A.P., reported in (1995) 2 SCC 471, the Apex Court held that the word, "proceeding" would depend upon the scope of the enactment wherein the expression is used to a particular context to which it occurs. It means a course of action for enforcing a legal right.
22. The expression "any matter in relation to any such proceeding" should be given the widest import and it has to be given full effect to, when it is read in conjunction with the words "every proceeding" occurring in the beginning of the section. Considering the scope of the Act, i.e., Hindu Marriage Act, which governs marriage between the Hindus, relief of divorce and Judicial separation, alimony, temporary or permanent, the lis being purely inter-se, reading of the Section in its entirety in its context, reflect the intention of the legislation, primarily sought to be achieved. The language employed in Section is plain and unambiguous and it covers every proceeding under the Act.
23. The right of privacy created by the statute has to be preserved. The very inception of the provision, Section 22 in the Hindu Marriage Act makes it clear that matters pertaining to matrimonial affairs are intended to be conducted 'in camera' and not intended to be divulged to others, except publication of the judgment with the leave of the Court. Right of privacy in matrimonial matters between the parties in a litigation under Marriage Acts is personal to the litigating parties. Thus it is manifestly clear that the legislature has intended to guard the right of privacy in relation to matrimonial matters and it is a settled legal position that the real meaning and effect should be given to the words employed in the Statute. In the light of language employed in the Statute, the right of privacy is so fundamental to the individual excepting to the extent provided under the Marriage Acts. Of course, we should not forget the role of our independent press and media in coming out with revelations of public interest, resulting in societal changes. As the freedom of the press is for the dissemination of information of public interest and public affairs, those which are not related to the above, but involving the marital relationships of the parties to a litigation should not be published or telecast, as it is prohibited under law. Publication of the proceedings meant to be in camera will affect the constitutional liberty guaranteed to the individual and it would be an invasion of his right of privacy. When Section 22(1) of the Act prohibits printing or publishing any matter in relation to any such proceeding arising under the Act, the Family Court or any other competent Court dealing with matrimonial matter, under the Hindu Marriage Act, has inherent jurisdiction to issue an order of injunction or any such direction to give full effect to the statutory provision. Therefore, the S. MANIKUMAR, J.
skm contention of the respondents 2 to 5 that they are not parties to the Original Petition and therefore, no injunction can be granted against them, cannot be countenanced.
24. In view of the above discussion, the Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.
18.08.2008 Index: Yes skm To The Principal Family Court, Chennai.
C.R.P.(PD)No.1695 of 2004