Section 27 lays down that while the State Governments are vested with powers to appoint the delegates that by itself will not invest authority in the delegates to sit in any particular trial. By reason of Section 27, the State Government is vested with powers to prepare only the list of Parsis who are eligible to be appointed as delegates.

The power to select delegates from the list, under Section 27 is vested with the presiding judge of the Trial Court. No doubt, the presiding Judge of the Court will make appointments under Section 27 only in rotation and no discretion is left with the presiding judge of the Trial Court.

However, in the proviso to Section 27, an option is given to each Party, in whose case the delegates are sought to be appointed by the presiding judge of the Trial Court, to oppose the appointment of (only) two delegates without assigning any reason. As is clear from the express language of the proviso, “… before such delegates are selected…” the parties can oppose the appointment of delegates only before they are appointed. As per Sections 19 and 20 of the Act, always five delegates are required to sit in the Trial. However, Section 45 of the Act lies down that instead of five delegates, even if three delegates sit in trial, either (1) throughout the Trial or (2) during any part thereof, the said trial will not be vitiated or invalid.

The express language of section is noted. It reads: “not less than three delegates have attended.” It necessarily means that if less than three delegates sit, the trial will be invalid.

ADVERTISEMENTS:

The procedure

The Act lays down its own procedure suitable for its needs. However, it is not exhaustive and wherever it is found insufficient, as is clear from Section 44, provisions of the Code of Civil Procedure, 1908 will apply to the extent necessary. Since the delegates are not expected to be the persons qualified in Law, a proviso to Section 45 is added.

By Proviso to Section 45, it is mandatory upon the presiding judge to read out to the Delegates, in verbatim, the provisions of the Act found to be relevant in the matter by the presiding judge. Not only that the presiding judge has to read the provisions of the Act found to be sufficient in the matter but also, under second Proviso, it is necessary to make a record in verbatim.

Section 37 makes it explicit, which otherwise may be implicit, that it is not necessary for the Defendant Spouse to file an independent Suit, if he/she has any claim against the Plaintiff Spouse and the same (counterclaim) can be taken up in the Suit already filed by the Plaintiff Spouse.

ADVERTISEMENTS:

Section 42 of the Act casts a ‘Duty’ in Courts to protect the property of wife. Such property might have received by wife (a) at the time of marriage or (b) at about the time of marriage, whether the said property is (c) held jointly by both the spouses or 0d) belongs to both the spouses. For this reason, the Court can make such provisions in the final decree, as it may deem just and proper on the facts and circumstances in the given case.

Section 52 of the Act makes it clear that irrespective whether the suits and proceedings are undertaken before or after the passing of this act, the same procedures and law will apply to such suits and proceedings. In subsection (2), it is also made clear that even if a Parsi ceases to be a Parsi, he will be governed by the provisions of this Act, if his marriage was solemnized under the Act, notwithstanding the fact that he is not a Parsi and the Parsi Act ceases to apply.

The High Court had issued Non-Bailable Order against the Husband for non-compliance of its Order to appear in person. The husband challenged this Order on the ground that the courts do not have such power and at the most, the Court could proceed to decide it was apprehended by the husband who was in a foreign country that he would be arrested on coming to India. The apex Court held that the Court was within its power to issue such an order, particularly when the High Court had granted interim stay. Therefore, in the circumstances, the husband would not be entitled to claim equitable relief.

The evidence

ADVERTISEMENTS:

There is a complete procedure prescribed under the Code of Civil Procedure for conducting a Trial of a Suit. Similarly, there is an Evidence Act, which will enable the Courts, whether Civil or Criminal, to receive evidence, appreciate it and discard which is inadmissible in law. However, the matrimonial suits are not suits for property and they pertain to two human beings, may be more, if there is a child or children. In such, cases, the Act has carved out an exception, without referring to the Evidence Act but enveloping all the laws of such nature.

The Act, accordingly lays down that the documents will be received in evidence and read in evidence while giving the verdict in the Suit filed by the spouse. This will be clear from the express language deployed in Sections 38 “notwithstanding anything in any other law for the time being in force”.

The law divides the Evidence into two, the Oral Evidence and Documentary Evidence. Obviously, Section 38 refers to Documentary Evidence and it is conspicuously silent on the Oral Evidence. The only necessary inference that can be drawn is that the Oral Evidence will be received as per the Evidence Act and no exception is carved out in the matter of Oral Evidence, save and except that Oral Evidence (too) be ‘in camera’, as is provided in Section 43 of the Act.

The law

ADVERTISEMENTS:

The Act has retained the oriental “JURY – SYSTEM”. The Members of the jury, the delegates, can give their decisions only on the Questions of Facts’ and not on (1) Question of Law or (2) the Question of Procedure. In case of difference of opinions amongst delegates on the Question of Facts, undoubtedly, the majority view of the delegates will determine the question of facts. The Question of Law’ and the ‘Procedure’, under Section 46 of the Act, are always left to the determination and decision of the Presiding Judge.

“In camera” proceedings

The issues and questions in respect of impotency, adultery, fornication, sexual harassment etc. are highly sensitive, embarrassing, confidential and private. As such, it is ideal and in the larger interest of parties and society at large that the hearing of such cases are not held in open Court. It may be pointed out that the Courts are the public places where public interested in Trial can come and witness the proceedings in the Court.

Therefore, under Section 43, it is provided that ‘hearings’ can be held ‘in camera’. The “in camera” proceedings are opposed to proceedings held in open Court where members of public, as of right, can come and hear the proceedings of the case. Similarly, it is also prohibited that the trial can be printed and/or published. Undoubtedly, the judgment can be published.

ADVERTISEMENTS:

It may clearly be noted the finer distinction between the ‘judgment’ and ‘trial’. The judgment is the final verdict’ or the Order of the Court which includes its ‘reasons’ in coming to the conclusion in the matter whereas the ‘Trial’ is the “going on” in the case and final decision of the Court is yet to come. What is prohibited to be ‘Printed and/or Published’ in the media is the Trial, the “going on” and not the final decision of the Court which, as aforesaid, includes the reasoning of the Court. The printing/publishing in the media is made penal and therefore, if anyone prints or publishes the proceedings of the Trial will be prosecuted and upon conviction, will be punished with fine, which may extend to one thousand rupees.

Advocates can appear

The modern statute, like the Family Courts Act, 1984, under Section 23 prohibits advocates to appear in the trial, as of right, without the Leave of the Court. The Parsi Act does not impose any such prohibition. The Parsi Act under Section 28 allows the advocates to appear in the proceedings. The reasons for such conflicting provisions are not far to search. The Family Courts are at par with the Tribunals whereas the Parsi Matrimonial Courts under the Parsi Act are at par with the High Courts. Be it as it is.

Right of appeal

ADVERTISEMENTS:

It is a settled and sound legal principle that right of appeal is not an inherent in the litigant party but it is always invested under the given Statute, if the legislatures consider it so necessary. The Act, under Section 47, invests a right of appeal. However, in cases where the Suit is instituted (a) outside the place where the Defendant resides or (b) at the place where the two had last resided the Leave of the Court, [Section 29 (3)] is the ‘Condition Precedent’ for filing the Appeal. This is clear from the express provisions of sub clause (b) of Subsection (1) of Section 47 of the Act.

The Grounds of Appeal are as under:

1. The impugned decision is contrary to (i) law or (ii) usage having the force of law.

2. There is substantial (a) error of procedure or the (b) error in investigation of the case.

3. There is substantial (a) defect in procedure or the (b) defect in investigation of the case.

4. The (i) error in procedure, (ii) error in investigation, (iii) defect in Procedure or (iv) defect in investigation has produced error in decision of the case;

5. The (i) error in procedure, (ii) error in investigation, (iii) defect in Procedure or (iv) defect in investigation has produced defect on the merits of the case.

6. Any other ground which is usually available to litigant parties in other cases.

While Subsection (1) of Section 47 lays down that the appeal shall lie to the High Court, Subsection (2) of Section 47 lays down that it will be before the Division Bench of

Two Judges of the High Court: No doubt, the Chief Matrimonial Court is High Court itself but such a Trial will be before the Learned Single Judge of the High Court assisted by five delegates whereas the Appeal, under Section 47 (2), will be before the Division Bench of two judges. The Section 47 is silent on the issue of Delegates in appeal. Therefore, by necessary implication, the Division Bench will not have the delegates.