S. 43 of the Parsi Marriage and Divorce Act, 1936 – Constitutionality thereof

This article was written by Aishwarya Dhakarey a student of Symbiosis Law School, Pune

Introduction

To begin with, S. 43 of the Parsi Marriage and Divorce Act, 1936 reads as under:

“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 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.]”

For the purpose of interpretation, S. 2(2) of the Act defines Courts as “Court” means a Court constituted under this Act, which means primarily the Parsi Matrimonial Courts.  In its entirety, the provision mandates the trial or hearing proceedings to be in camera along with the requirement which prohibits anyone to print or publish any matter in connection with the cases. However, after obtaining due permission of the Court, the same information can be printed or published.

Clause (2) is the penal provision stipulating fine amounting to one thousand rupees following the contravention of the condition mentioned in clause (1). Any act of  printing and publishing will also attract the provisions contemplated in the Contempt of Courts Act, 1971,  viz. Section 2, which defines expressions “contempt of Court”, “civil contempt” and criminal contempt” as under: “(a) “contempt of court” means civil contempt or criminal contempt; (b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which :- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

This particular provisions needs also to be read in the light of Article 129 of the Constitution of India  which lays down: “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”

Analysis

In fact this is not the only provision subsisting in the Indian Matrimonial laws. Similar  (or rather mutatis mutandis) provisions find place in various existing laws on the same subject such as S. 22 of the Hindu Marriage Act, 1955 , S. 33 of the Special Marriage Act, 1954, etc. The intendment of the Act in such cases is to prevent the sensationalization of such sensitive matters.  The reputation of the parties in such cases is already at stake and therefore, media cannot exercise unabated discretionary powers in this regard. The restriction or fetter so imposed is a reasonable one.

Besides, Sections 10, 11 and 13 of the Hindu Marriage Act 1955, Sections 10 and 18 of the Indian Divorce Act 1869, Sections 25 and 27 of the Special Marriages Act 1954, Section 2 of Dissolution of Muslim Marriages Act 1939 and other such Acts recognise the grounds like judicial separation, restitution of conjugal rights and divorce-the common grounds pleaded are cruelty, desertion, impotency, adultery, virulent and incurable form of leprosy, communicable form of venereal disease in matrimonial disputes. As apparent from the above, judicial separation, restitution of conjugal rights and divorce have few common grounds that are pleaded such as cruelty, desertion, impotency, adultery, virulent and incurable form of leprosy, communicable form of venereal disease and these factors are directly associated with one’s reputation.

Landmark Case laws on the subject

• Scott v. Scoot[1]– In this case, it was held that The High Court has inherent power to prevent publication of the proceedings of a trial. The power to prevent publication of proceedings is a facet of the power to hold, a trial in camera and come from it.

It is to be noted that there is no explicit provision in the Code of Civil Procedure empowering the courts to hold in camera trials. However, according to S. 151 of the Code of Civil Procedure, 1908 the Courts have inherent power to prevent injustice.  Hence, the courts can conduct in camera trials if required to prevent miscarriage of justice.

Although it is a fundamental rule that the trial shall be held in open court pursuant to fair trial principle envisaged in Article 21, Order 18 Rule 4 C.P.C. provides as thus:- “The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the judge.”

• In Attorney General v. Times Newspaper Ltd.[2], it was observed as under: “Freedom of expression, as learned writers have observed, has our broad social purposes to serve: (1) it helps individual to attain self fulfilment, (2) it assists in the discovery of truth (3) it strengthens the capacity of an individual in participating in decision-making; (4) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration.”

Article 19(1) (a) and Reporting of cases- Conclusion

 In State of Uttar Pradesh v Raj Narain[3], the Supreme Court of India held that Article 19(1) (a), in addition, to guaranteeing freedom of speech and expression, guarantees the right to receive information on matters concerning public interest. [4]It is asserted that matrimonial disputes are of highly private nature and cannot be linked to public interest.  Hence, the restriction prescribed in the law is reasonable and not absolute. Moreover, India, at present, does not have any independent statute protecting privacy; the right to privacy is a deemed right under the Constitution. The right to privacy has to be understood in the backdrop of two fundamental rights: the right to freedom under Article 19 and the right to life under Article 21 of the Constitution.

Equally important is the fact that Section 151 C.P.C. cannot be employed as a tool to confer a discretion on the court to turn its proceedings which should be open and public into a private affair. Public’s right to know exist but not in all the circumstances. The law has taken cognizance of this fact. Another legal angle is provided by the exception stated in the provision that is, the judgment can be published or printed with the exception of court. There is no unfettered restriction on the right of the media on reporting.  As such, the provision seems to be legally sustainable and constitutionally valid. It does not contravene any of the provisions of the Constitution of India.

[1] [1913] A.C. 417

[2] (1973) 3 All ER 54

[3] 1975 AIR 865

[4]  Sonal Makhija, ‘Privacy & Media Law, The Centre for Internet & Society’  <http://cis-india.org/internet-governance/blog/privacy/privacy-media-law >