R. Sridhar vs R. Sukanya and Others

S. Ashok Kumar, J.—C.M.P. No. 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.

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.

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.

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.

The learned trial Court Judge dismissed the said Interlocutory application on the ground that the respondents have not contravened the

provisions of Section 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.

The learned Senior Counsel for the revision petitioner contends that in view of Section 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 news

items with regard to the Court proceedings is a fundamental right and the same cannot be curtailed by an order of injunction or stay.

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 Section 22 of the Hindu Marriage Act, 1955. Section 22 of the said Act; reads as follows :

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-section (1) he shall be punishable with fine

which may extend to one thousand rupees.

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 Courts Act, 1984, which prohibits any publication and the Family Courts Act, 1984 has got overriding effect on the Hindu

Marriage Act, 1955.

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 organisations of women, other organisations 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 CPC 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.

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 adherence 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 CPC 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.

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;

(ill) 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;

(i) provide or only one right of appeal which shall lie to the High Court.

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 matter in relation to any such proceedings and also the

punishment for violating the prohibition as provided u/s 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 parties 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 u/s 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 Section 20 of the Family Courts Act has a overriding effect

over any other enactment and in view of the same, Section 11 of the Family Courts Act should prevail over Section 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 Section 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. If the argument of the

respondents arc accepted then there will be two sets of results i.e. Section 22 of the Hindu Marriage Act will be enforced by Civil Courts in rural

areas where there are no Family Courts and Section 11 of Family Courts Act will be enforced by the Family Court in cities where such Courts are

established.

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 Section 22 of the said Act in this regard is mandatory. If other personal laws like Christian, Pars! 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 Section 11. The section confers a discretion on the Judge and also grants a right to the parities to have the proceedings held in camera. In fact

Section 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.

Section 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 Section 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.

Right to privacy has been recognised by Indian Courts. In Gobind Vs. State of Madhya Pradesh and Another, , their lordships of the Supreme

Court held as follows :

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 the assertion that a

claimed right must be a fundamental right implicit in the concept of ordered liberty.

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.

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 strained from publishing or telecasting the matrimonial proceedings relating to the revision petitioner in any

way in view of Section 22 of the Hindu Marriage Act 1955.