Bombay High Court
Armin R. Panthaky vs Rohinton Panthaky on 21 November, 2024
Bench: M.S. Sonak, B.P. Colabawalla, R. I. Chagla
2024:BHC-OS:18834-DB Armin R Panthaky v Rohinton Panthaky
APPEAL NO.311-2014-(F).docx
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 311 OF 2014
IN
PARSI SUIT NO. 20 OF 2013
ARMIN R. PANTHAKY,
Parsi, Indian Inhabitant residing at 'C'
AMOL Block, 2nd floor, Bhiwandiwalla ...APPELLANT
PREMNATH
JADHAV Terrace, Room No.49-52, J.S.S. Road, (ORIGINAL
Digitally signed by
Dhobi Talao, Mumbai - 400 002. DEFENDANT)
AMOL PREMNATH
JADHAV
Date: 2024.11.21
18:23:44 +0530 ~ VERSUS ~
ROHINTON PANTHAKY,
Aged about 53 years, Occupation :
Retired, Parsi, Indian Inhabitant,
presently Residing at Athornan ...RESPONDENT
Boarding Maddressa, Five Gardens, (ORIGINAL
Dadar, Mumbai - 400 014. PLAINTIFF)
A PPEARANCES
FOR THE APPELLANT Ms Zenobia Shapoor Irani, with
Prashant Tikare.
FOR INTERVENORS (PARSI Ms Sanober Nanavati, with Agnel
PANCHAYAT) Carneiro, Gayatri Sathe i/b
M/s. Mulla & Mulla and
Craigie Blunt & Caroe.
IN REFERENCE Adv Jamsheed K. Master.
Adv Abhijit Sarwate.
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ANTI COMMISSION PRESENT Ms Taubon F. Irani, with Disha
Shetty.
CORAM : M.S. Sonak, B.P.
Colabawalla &
R.I. Chagla, JJJ.
RESERVED ON : 25 September 2024
PRONOUNCED ON : 21 November 2024
JUDGMENT:
–
1. Heard learned Counsel for the parties.
2. This reference arises in Appeal No. 311 of 2014,
challenging the order dated 3 April 2014 made by the learned
Parsi Chief Metropolitan Court, Mumbai (Hon’ble Justice G S
Patel) in Parsi Suit No. 20 of 2013. By the order dated 3 April
2014, Patel J has held that under the Parsi Marriage and
Divorce Act, 1936 (“PMDA”), there is nothing which denudes
the Court from exercising its discretion to direct or allow the
recording of evidence before a Court Commissioner in terms
of Order XVIII Rule 4 of Civil Procedure Code, 1908 (“CPC”).
3. By order dated 31 July 2014 in Appeal No. 311 of 2014
against Patel J’s order, the Division Bench comprising Mohit S
Shah, C J and M S Sonak J, made the following order of
reference:
“Coram : Mohit S. Shah, C. J. & M. S. Sonak, J.
Notice for final disposal, returnable on 5 September
2014. Having regard to the importance of the questionsPage 2 of 33
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that this Appeal is placed for hearing before the Full
Bench.
It is clarified that we are not granting any ad-interim
stay of the proceedings before the trial Court.”
4. Accordingly, the question that arises in this reference is
whether anything in the provisions of the PMDA scheme
denudes the Courts dealing with Parsi matrimonial suits and
proceedings the discretion to direct or allow the recording of
evidence before a Court Commissioner by resorting to the
provisions in CPC, 1908, as amended from time to time.
5. Ms Sanober Nanavati, Ms Zenobia Irani, and Mr
Jamsheed Master argued that evidence in suits or proceedings
under the PMDA must, under all circumstances, be recorded
before the Court in the presence of delegates (jury members).
They submitted that the Court is completely denuded of its
discretion to either direct or allow the recording of evidence
before a Court Commissioner.
6. Mr Sarwate submitted that there was neither any
express nor implied bar for recording evidence before a Court
Commissioner. Accordingly, he defended Patel J’s order dated
3 April 2014 based on the reasoning reflected therein and
certain further contentions and precedents.
7. Ms Taubon Irani did not go so far as to urge that the
Court be wholly denuded of its discretion to direct or allow
the recording of evidence before a Court Commissioner.
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However, she submitted that recording evidence in the Court
in the presence of delegates must be the rule, and recording
evidence before a Court Commissioner is only an exception.
She submitted that discretion must be exercised judiciously,
and sufficient safeguards must be provided before any
evidence can be directed or allowed to be recorded before a
Court Commissioner.
8. In support of their contentions that the Court has no
discretion to direct or allow the recording of evidence before a
Court Commissioner, Ms Nanavati, Ms Zenobia Irani and Mr
Master submitted that PMDA, a special Act, would prevail
over the CPC, a general Act. They submitted that Section 45 of
PMDA, based on which CPC is sought to be made applicable,
applies only in so far as the provisions of CPC are not
excluded either expressly or by necessary implication. They
submitted that Section 45 is an instance of ” legislation by
incorporation”, and therefore, only such of the provisions of
CPC on the date of PMDA entering into force, i.e., 23 April
1936, would apply and not the provisions introduced by the
1976 or 2002 amendments to the CPC.
9. The learned counsel submitted that since delegates are
the final arbiters on facts in a Parsi matrimonial suit or
proceedings, the recording of evidence before them is crucial
so that they get to see the witnesses’ demeanour. Besides, the
Parsi suits must be heard in camera, not printed or published.
These crucial requirements will be jettisoned if evidence is
directed or allowed to be recorded before a Court
Commissioner. Accordingly, they submitted that these special
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provisions or peculiarities under the PMDA, either expressly or
in any event, impliedly exclude CPC provisions permitting the
recording of evidence to be recorded before a Court
Commissioner.
10. Ms Irani, Ms Nanavati, and Mr Master referred to the
difficulties in recording evidence before a court commissioner.
They submitted that the Court Commissioner cannot rule on
objections or declare witnesses hostile. They submitted that
the Court Commissioner cannot question the witnesses either
with or without the leave of the Court. They submitted that all
this would render the new and the old Evidence Act
provisions in this regard otiose. They submitted that their
experience had shown that recording evidence before a Court
Commissioner is time-consuming since the Court
Commissioner, unlike the Court, has no control over the
length of cross-examination and no power to rule on the
objections. For all these reasons, they submitted that no
recording of evidence before the Court Commissioner should
be directed or allowed in suits or proceedings under the
PMDA.
11. Mr Sarwate, as noted earlier, mainly relied upon the
reasoning in Patel J’s order dated 3 April 2014. He submitted
that there was nothing in the provisions of PMDA to suggest
any exclusion of the provisions of Order XVIII Rule 4 of CPC
read with or without Order XXVI of CPC. He submitted that
the advanced technology and larger goal of judicial efficiency
can never be ignored if matrimonial matters under the PMDA
are to be disposed of expeditiously and efficiently.
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12. The rival contentions now fall for our determination.
13. At the very outset, we need to clarify that in this
reference, we are only concerned with the issue of whether
the Courts under PMDA are completely denuded from
exercising their discretion to direct or allow a record of
evidence before a Court Commissioner. If it is ultimately held
that the Courts retain such discretion or that there is nothing
in the provisions or scheme of PMDA that denude the Courts
of such discretion, then whether such discretion should be at
all exercised in a given case or the terms and conditions
subject to which such discretion could be exercised, are issues
that do not fall for our consideration in this reference. The
discretion, if retained, will have to be judiciously exercised
considering a range of factors relevant on a case-to-case basis.
14. Ms Nanavati, Ms Irani and Mr Master’s contentions can
be broadly divided into two categories. The first, where they
urged that the Court is completely denuded of its discretion to
direct or allow the recording of evidence before the Court
Commissioner; and the second, where they referred to several
reasons why the discretion for the recording of evidence
before a Court Commissioner ought not to be exercised in
suits and proceedings under the PMDA. We do not need to
elaborately answer the second limb of their contentions in this
reference because if we conclude that such discretion is vested
in the Court, then the exercise of such discretion will depend
upon a host of factors that would be peculiar to such cases
and circumstances.
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15. Therefore, in this reference, we are concerned with
whether there is any express or implied bar to a Parsi
matrimonial court directing or allowing the recording of
evidence before a Court Commissioner in suits and
proceedings under the PMDA.
16. In examining the above issue, a reference is necessary to
the salient features and the peculiarities in the PMDA, based
upon which it was urged that the Court is completely denuded
of its discretion to direct or allow the recording of evidence
before a Court Commissioner. The actual provisions have been
quoted in Patel J’s order dated 3 April 2014. Therefore, unless
necessary, we do not propose to once again quote those
provisions in this opinion.
17. The PMDA entered force on 23 April 1936. It is an Act to
amend the law relating to marriage and divorce among Parsis.
The PMDA mainly concerns marriages and divorces among
Parsis and provides for the constitution and establishment of
Parsi Matrimonial Courts in Calcutta, Madras, Bombay, and
other places as the government deems appropriate.
18. Chapter III, which comprises Sections 18 to 29, is
concerned with Parsi matrimonial Courts. Section 18 provides
for the constitution of Special Courts under the PMDA.
Section 19, among other things, provides that 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
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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.
19. Chapter IV of PMDA, comprising Sections 30 to 48,
concerns “matrimonial suits” and includes provisions for suits
or nullity, execution, divorce, restitution, alimony,
maintenance and disposal of joint property. Section 32
concerns grounds for divorce, and Section 32-B concerns
divorce by mutual consent.
20. Section 43, which is a part of Chapter IV, provides that
suits shall be tried in camera. Section 44 provides that
notwithstanding anything contained in Sections 19 or Section
20, where in the case of trial in a Parsi matrimonial Court, not
less than three delegates have attended throughout the
proceedings, the trial shall not be invalided by reason of the
absence during any part thereof of the other delegates.
21. Sections 45, 46 and 47 are also a part of Chapter IV of
PMDA. Section 45 provides that the provisions of the Civil
Procedure Code, 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
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to decree. Section 46 provides that in suits under the PMDA,
all questions of law and procedure shall be determined by the
presiding judge, but the decision on facts shall be the decision
of the majority of the delegates before the whom the case is
tried. Provided that, where such delegates are equally divided
in opinion, the decision on facts shall be the decision of the
presiding judge.
22. Section 47 provides an appeal to the High Court on the
ground of the matrimonial Court’s decision being contrary to
some law or usage having the force of law or of a substantial
error called 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 no other ground.
23. In Minoo Rustomji Shroff & Ors Vs Union of India &
Ors1, this Court held that the expression ” regular hearing” in
Section 19(B) of PMDA means only a trial and not, for
instance, a suit for divorce by mutual consent. Some decisions
hold that no appeal lies against the decisions of Parsi
Matrimonial Courts on questions of fact determined by the
delegates. Even Patel J’s order dated 3 April 2014 notes that
under the PMDA, the delegates’ verdict on facts is final, and
no appeal lies from that verdict.
24. Section 45 of the PMDA provides that CPC shall apply to
proceedings in suits instituted under the PMDA, including
proceedings in execution and orders subsequent to the decree.
The word used is “shall,” and we agree with Patel J’s
1
2005 4 Bom Case Reporter 147
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reasoning that this word suggests a mandate. The legislature
intended to bring some procedural uniformity to civil trials of
every stripe.
25. Still, an argument was canvassed relying on the phrase
“so far as the same may be applicable ” in Section 45 of the
PMDA. As discussed in this opinion, this phrase only suggests
that the provisions of CPC may not apply where such
provisions could be said to have been expressly or by
necessary implication excluded either by the specific
provisions of PMDA or the scheme of PMDA. For instance,
under the CPC, an appeal generally lies on facts and law.
However, considering the specific provisions in Section 47 of
PMDA, an appeal under the said section will not lie against
the delegates’ verdict on facts. To that extent, therefore, the
provisions of CPC defining the powers of the appellate Court
will be excluded or will not apply. However, the contention
that there are any provisions in the PMDA which either
expressly or impliedly exclude the application of the
provisions in CPC for directing or allowing a record of
evidence before a Court Commissioner cannot be accepted.
26. Patel J’s order dated 3 April 2014 notes, and we entirely
agree, that there is nothing in the statutory mandate of having
delegates and requiring them to aid the presiding judge that
suggests a particular trial procedure and that alone, has to be
followed to the exclusion of all other matters. The verdict of
delegates, on facts, may be unassailable in appeal, but still,
the delegates are only to aid the Judge and not themselves
decide the matter entirely. The word “aid” must be construed
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in its ordinary grammatical sense, meaning only to assist or
help. It certainly cannot be read to suggest that the delegates
present the judge with the final decision for the Court’s
imprimatur. The delegates’ verdict does not end the trial, but
the judge’s decision does, and therein lies the difference.
27. The role of the delegates in a trial under the PMDA is
crucial. However, by directing or allowing evidence to be
recorded before a Court Commissioner, it is not as if the role
of delegates would be significantly diluted or diluted to such
an extent as would suggest any implied exclusion of the
provisions of order XVIII Rule 4 of CPC or order XXVI of CPC
to the suits and proceedings under the PMDA. As has been
observed by Patel J in his order dated 3 April 2014, when
exercising discretion, the Court can provide for adequate
safeguards so that the role of the delegates is not significantly
compromised.
28. Considerable public interest is involved in the
procedural provisions permitting the record of evidence before
Court Commissioners. This serves the larger goal of the
expedition and enhances judicial efficiency without
compromising the core principles of fairness. Therefore, to
take the extreme view that the Courts are wholly denuded of
their discretion to direct or permit the record of evidence
before a Court Commissioner does not commend us. The
construction of the provisions in Sections 18, 19, 43, 44 to 47
cannot lead to any inference of either express or implied
exclusion of the provisions of the CPC applicable in this regard
to suits and proceedings under the PMDA.
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29. Order XVIII Rule 4 of CPC provides that in every case,
the examination-in-chief of a witness shall be on affidavit, and
copies thereof shall be supplied to the opposite party by the
party who calls him for evidence. Provided that where
documents are filed and the parties rely upon the documents,
the proof and admissibility of such documents, which are filed
along with the affidavit, shall be subject to the orders of the
Court. Admittedly, consistent with Order XVIII Rule 4 (1)
provisions, examination-in-chief in Parsi suits and proceedings
under the PMDA is on affidavit. No serious objection was
raised to the applicability of Order XVIII Rule 4 (1) of CPC
regarding the procedure for the record of examination-in-
chief.
30. Order XVIII Rule 4(2) provides that the evidence (cross-
examination and the re-examination) of the witness in
attendance, whose evidence (examination-in-chief) by
affidavit has been furnished to the Court shall be taken either
by the Court or the commissioner appointed by it. The proviso
provides that the Court may consider taking into account such
relevant factors as it thinks fit while appointing a commission
under this sub-rule. Thus, discretion is vested in the Court on
whether to direct or allow cross-examination and re-
examination in the Court or before the Commissioner is
appointed. Assume the Court decides to appoint a
commissioner. In that case, the Court must consider taking
into account “such relevant factors as it thinks fit “. Thus, if
deemed necessary, the Court could consider most of the
factors referred to by the learned Counsel if it decides to
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exercise its discretion for directing or allowing the recording
of evidence before a Court Commissioner.
31. Order XVIII Rule 4(3) provides that the Court or the
Commissioner, as the case may be, shall record evidence
either in writing or mechanically in the presence of the Judge
or of the Commissioner, as the case may be, and where the
Commissioner records such evidence, he shall return such
evidence together with his report in writing signed by him to
the Court appointing him and the evidence taken under it
shall form part of the record of the suit. Order XVIII Rule 4(4)
provides that the Commissioner may record such remarks as it
thinks material in respect of the demeanour of any witness
while under examination. Provided that any objection raised
during the recording of the evidence before the Commissioner,
shall be recorded by him and decided by the Court at the
stage of arguments. The Commissioner is obligated to submit
the report to the Court appointing the Commission within 60
days from the date of issue of the Commission unless the
Court, for reasons to be recorded in writing, extends the time.
32. In Salem Advocates Association Vs Union of India (I)2
and (II)3, the Hon’ble Supreme Court made it explicit that
broad discretion was vested in the Court in appointing or not
appointing the Commissioner. The Court observed that in suits
of complexity involving questions of fraud, forgery, disputed
testamentary dispositions, partnership actions, and so on, the
Cout may prefer to record the cross-examination to itself. In
2
AIR 2003 SC 1819
3
AIR 2005 SC 3353
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Salem (II), the Hon’ble Supreme Court acknowledged the
legislative wisdom in giving greater importance to judicial
time than to a Judge’s observation of how a witness chooses
to conduct himself in the witness box. In any event, Order
XVIII Rule 4(4) provides for the Commissioner to record such
remarks as it thinks material in respect of the demeanour of
any witness while under examination.
33. In Salem (I), the Hon’ble Supreme Court has held that
under Order XVIII Rule 4(2) the Court has the power to direct
either all evidence being recorded in the Court or all the
evidence recorded by the Commissioner, or the evidence being
recorded partly by the Commissioner and partly by the Court.
Further, the Court referred to using the word “mechanically”
in Order XVIII Rule 4(3) and held evidence can be recorded
even with the help of electronic media, audio or video. The
court observed that, in fact, whenever the Commissioner
records evidence, it will be advisable that there should be
simultaneously at least an audio recording of the statement of
the witnesses to obviate any controversy at a later stage.
34. In the Salem cases, it is held that the Court must apply
its mind to the facts of the case, nature of the allegations,
nature of evidence, and the importance of particular witnesses
for determining whether the witness shall be examined in
Court or by the Commissioner appointed by it. The power
under Order XVIII Rule 4(2) is required to be exercised with
circumspection, having regard to the facts and circumstances
of the case. By clarifying that such orders were discretionary,
the court refrained from laying down hard and fast rules
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controlling the discretion of the Court to appoint the
Commissioner to record the cross-examination and re-
examination of witnesses.
35. The contention about the Court being deprived of the
benefit of watching the demeanour of the witnesses when
evidence is recorded before the Court Commissioner was
considered by the Hon’ble Supreme Court but not accepted.
The Court held that the will of the legislature, which has by
amending the Code provided for recording of evidence by the
Commissioner for saving the Court’s time taken for the said
purpose, cannot be defeated merely on the ground that the
Court would be deprived of watching the demeanour of
witnesses. The court also referred to the provisions of Order
XVIII Rule 4 and held that it would have the benefit of
observations on the demeanour made by the Commissioner.
36. Order XXVI of the CPC also deals with the issue of
commission to examine witnesses. This provides that the
Court may issue a commission to examine witnesses exempted
under the Code from attending Court or who are suffering
from any sickness or infirmity unable to attend the Court.
There are provisions for the issue of commission to persons
resident beyond the local limits of its jurisdiction, persons
who are about to leave such limits before the date on which
they are required to be examined in the Court, persons who
cannot, in the opinion of the Court attend without detriment
to public service and so on.
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37. Order XXVI Rule 4(A), which has been given an
overriding effect, provides that the Court may, in the interest
of justice or for the expeditious disposal of the case or any
other reason, issue commission in any suit for the
examination, on interrogatories or otherwise, of any person
resident within local limits of its jurisdiction and the evidence
so recorded shall be read in evidence. Order XXVI Rule 5
empowers the Court to which application is made for the issue
of commission for the examination of a person residing at any
place not within India upon being satisfied that the evidence
of such person is necessary, the Court may issue such
commission or a letter of request.
38. There can be varied situations where it is not possible or
feasible for witnesses to depose before the Court in the
presence of the delegates. To take an extreme view that the
Court can, under no circumstances, direct or allow evidence to
be recorded before a Court Commissioner would not be in the
public interest or the quick, fair and efficient prosecution of a
suit or proceeding under the PMDA. Critical evidence of, say,
old or infirm witnesses may have to be forgone because such
witnesses may not be able to attend the Court. Evidence of
witnesses who live abroad or beyond the limits of the local
jurisdiction of the Court may also have to be forgone, given
the practical difficulties and costs involved in such an exercise.
39. The problems expressed by the learned Counsel can
always be examined and, if found genuine, addressed by
providing suitable safeguards and exercising discretion in the
particular facts and circumstances of the case. However, if the
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Court is denuded of its power of exercising discretion, then
the comparative mischief and disservice would be much
greater than by conceding or retaining the discretion in the
Court. Ultimately, even Section 46 of the PMDA provides that
all questions of law and procedure are to be determined by
the Judge and not the delegates, who are only there to aid or
assist the Judge, in deciding questions of fact.
40. In a given case, suitable orders can always be made
permitting the delegates to attend the recording of evidence
or to watch the recording of such evidence before a Court
Commissioner through video conferencing and other
technological facilities that may be available or appropriate.
Suitable orders can be made depending upon the facts and
circumstances of a given case to involve the delegates in
recording the evidence before the Court Commissioner.
41. These are all matters in the realm of exercise of
discretion and exercising discretion subject to suitable terms
and conditions. However, on account of the difficulties
expressed by the Counsel, we do not think that it would be in
the interest of expeditious and efficient disposal of suits and
proceedings under the PMDA to completely denude the Courts
from exercising their discretion, to direct or allow the
recording of evidence before a Court Commissioner. This
would be like throwing the baby along with the bath water.
42. The Hon’ble Supreme Court rejects explicitly the
demeanour argument in the Salem cases. The argument that
the involvement of the delegates and the fact that the
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delegates’ verdict on facts is unassailable makes a difference
also cannot be accepted. The reason in Salem cases will apply
even in the present context. However, we agree that this
special provision involving the delegates is one of the
considerations the Court must consider when exercising
discretion for directing or allowing the recording of evidence
before a Court Commissioner.
43. All these matters will have to be decided by the Court on
a case-to-case basis and depending upon the facts and
circumstances of that particular case. It is neither necessary
nor advisable to provide any uniform guidelines in this regard.
Suffice to state that the discretion will have to be exercised
judiciously and by taking into account all relevant factors,
including the peculiar position arising out of the involvement
of the delegates in suits and proceedings under the PMDA.
44. The judicial system is entrusted with the responsibility
of dispensing justice swiftly and efficiently without
compromising on the core values of fairness. In Salem (II), the
Hon’ble Supreme Court emphatically underscored the pressing
need to preserve the scarce judicial time and resources. The
Court highlighted that delays in judicial processes can
undermine the public’s confidence in the legal system and
inflict undue hardships on the parties involved. Considering
these observations, it becomes imperative for the Courts to
adopt procedural mechanisms that ensure swift
administration of justice, particularly in matrimonial matters
where prolonged litigation can exacerbate emotional and
financial strength.
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45. The discretion to record evidence before a Court
Commissioner serves a larger goal of expedition and judicial
efficiency. By delegating the task of recording evidence to the
Court Commissioner, the Court can expedite the trial process
without compromising core principles. The final scrutiny of
evidence remains within the Court’s purview, ensuring that
the integrity of the proceedings is preserved. Flexibility,
successfully employed in other civil matters, is essential even
for suits and proceedings under PMDA.
46. International jurisprudence supports procedural
flexibility in the interest of efficiency. In Williams Vs Florida4,
the US Supreme Court upheld the constitutionality of smaller
jury size in criminal cases, emphasising that procedural
efficiency does not necessarily undermine the fairness of a
trial. Similarly, in Maryland Vs Craig5, the US Supreme Court
upheld the use of video links for the testimony of a child
witness as necessary to protect their wellbeing. The Court
held that the accused’s right to confront witnesses may be
fundamental but was not absolute. It had to be balanced
against the need to protect vulnerable witnesses from the
trauma of in-person testimony.
47. In Singapore, the Evidence (Civil Proceedings in Other
Jurisdictions) Act has paved the way for using technology to
reduce procedural delays. The Act permits videoconferencing
and other technological means to record evidence, particularly
in cases involving witnesses in foreign jurisdictions.
4
399 US 78 (1970)
5
497 US 836 (1990)
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Incorporating technology in civil proceedings has been
instrumental in ensuring timely adjudication while
maintaining the quality and fairness of the process.
Singapore’s approach reinforces the idea that procedural
flexibility, when properly regulated, can enhance judicial
efficiency without sacrificing fairness.
48. The principle of judicial efficiency has also been invoked
to justify the intervention in personal and religious laws in
other jurisdictions. In Bruker Vs Marcovitz6, the Supreme
Court of Canada ruled that religious obligations could not be
used as a defence to evade a civil duty, holding that fairness
and public policy considerations must prevail over personal
religious practices. This judgment demonstrates that where
personal or religious laws impede the fair and efficient
resolution of disputes, courts are empowered to prioritise the
principles of justice.
49. In Lina Joy Vs. Majlis Agama Islam7, the Federal Court of
Malaysia upheld the application of civil law over religious
principles concerning individual rights, holding that religious
practices must not compromise the administration of justice in
civil matters. These cases reflect a growing global trend
toward integrating efficient judicial practices, even in the
context of personal or religious laws. This principle can be
applied in the context of the PMDA to harmonise efficiency
with community-based adjudication.
6
2007 SCC 54
7
(2007) MYFC 6
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50. The role of demeanour in assessing witness credibility
was earlier significantly emphasised. Courts worldwide had
stressed the importance of physical presence, allowing the
trier of fact to observe a witness’s body language, tone, and
mannerisms. In Mattox Vs United States8, the U.S. Supreme
Court underscored that face-to-face confrontation with
witnesses allows juries and judges to evaluate demeanour as
an essential aspect of truth-seeking.
51. The traditional belief is that physical presence offers
psychological and physical cues to assess a witness’s
credibility. It was argued that in-person testimony enables the
court to perceive nuances such as hesitation, nervousness, or
confidence, which may reflect the veracity of the witness. The
physical act of giving evidence in court is said to compel
truthfulness and reinforce the solemnity of the proceedings.
This notion had been considered crucial in matrimonial
disputes, where questions of fact–often involving sensitive
and deeply personal matters–are at the heart of the
adjudication process.
52. However, the weight attributed to demeanour in
credibility assessments has increasingly been scrutinised.
Scholars, notably Jeremy Blumenthal, have critiqued the over-
reliance on non-verbal cues, suggesting that they often lead to
unreliable conclusions9. Blumenthal argues that psychological
research consistently shows that humans, including judges
8
156 U.S. 237 (1895)
9
Jeremy Blumenthal, A Wipe of the Hands, a Lick of the Lips: The Validity of
Demeanor Evidence in Assessing Witness Credibility , 72(4) NEBRASKA LAW REVIEW 1157
(1993).
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and jurors, are not adept at detecting deception based on
demeanour. Non-verbal cues such as nervousness or fidgeting,
often perceived as signs of dishonesty, can be misleading and
influenced by various factors unrelated to truthfulness,
including cultural differences, personal anxiety, or the
inherent stress of legal proceedings.
53. Technological advancements have provided courts with
viable alternatives to live testimony, mitigating logistical and
emotional challenges while maintaining key elements of
fairness. In State of Maharashtra Vs Dr. Praful B. Desai &
Anr10, the Court held that video conferencing and real-time
video links could effectively substitute in-person testimony
without infringing on a defendant’s rights. The judgment
recognised that while physical presence may offer certain
benefits, technology ensures that testimony can still be
delivered transparently and reliably, preserving the essential
function of the trial process.
54. Vanessa Munro’s research further substantiates this
argument, revealing that jurors’ ability to assess credibility
does not significantly differ when testimony is delivered live
versus pre-recorded or via video link11. Munro’s studies on pre-
recorded evidence in trials, particularly in cases involving
vulnerable witnesses, indicate that the perceived advantages
of observing demeanour in live testimony are overstated. The
integrity of the testimony remains intact, and jurors can still
10
2003(4) SCC 601
11
Munro, Vanessa (2018) The impact of the use of pre-recorded evidence on
juror decision‐making : an evidence review. Edinburgh: Scottish Government. (Crime
and Justice).
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evaluate the substance of the evidence effectively without the
undue influence of potentially misleading non-verbal cues.
55. Empirical research has consistently debunked the notion
that body language is a reliable indicator of truthfulness.
Studies have shown that factfinders, whether judges or juries,
are often overconfident in their ability to read non-verbal
cues, leading to erroneous conclusions. This research supports
the view that while demeanour may have some relevance, its
importance has been exaggerated, particularly in modern-day
trials where efficiency and fairness must be balanced.
56. In “The Business of Judging”, Lord Tom Bingham writes
that the current tendency is, on the whole, to distrust a
witness’s demeanour as a reliable pointer to his honesty. He
quotes passages from the extra-judicial utterances of three
very experienced trial judges, i.e. Lord Devlin and Mr Justice
MacKenna, in a passage which Lord Devlin later adopted as
his own:
“I question whether the respect given to our findings of fact
based on the demeanour of the witness is always deserved. I
doubt my own ability, and sometimes that of other judges, to
discern from a witness’s demeanour, or the tone of his voice,
whether he is telling the truth. He speaks hesitantly. Is it the
mark of a cautious man, whose statements are for that reason
to be respected, or is he taking time to fabricate? Is the
emphatic witness putting on an act to deceive me, or is he
speaking from the fullness of his heart, knowing that he is
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from shyness or a natural timidity? For my part, I rely on
these considerations as little as I can help.”
Third, Lord Justice Browne:
57. “So the main job of the judge of first instance is to
decide the facts. How does he do it? When there is a conflict
of evidence between witnesses, some judges believe that they
can tell whether a witness is telling the truth by looking at
him and listening to him. I seldom believed that….”
58. The modern judicial landscape has seen an increasing
acceptance of technological alternatives that preserve the
narrative integrity of witness testimony while addressing the
limitations of live court appearances. Using video
conferencing, pre-recorded depositions, and real-time video
links allows the court to maintain procedural fairness without
requiring the physical presence of the witness. These
alternatives have been particularly effective in mitigating
delays, reducing emotional trauma for witnesses, and
ensuring a smoother administration of justice. Importantly,
they allow courts to focus on the content and consistency of
the testimony rather than overemphasising demeanour, which
may be misleading.
59. Therefore, while demeanour’s significance in assessing
witness credibility has its place in legal tradition, its
importance must be re-evaluated considering technological
advancements and empirical research. The judiciary’s focus
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must evolve to embrace tools that enhance the efficiency of
proceedings while preserving fairness and the core principles
of justice.
60. In balancing expediency with fairness, ensuring that
procedural innovations do not dilute the substantive
safeguards envisioned under the PMDA is critical. The role of
the delegates, as prescribed by the statute, remains central to
resolving marital disputes within the Parsi community.
However, allowing the recording of evidence by a
commissioner, with the subsequent involvement of delegates
in reviewing and assessing the evidence, preserves both the
statutory role of the delegates and the goal of swift justice.
The interplay between the CPC and the PMDA is not one of
conflict but complementarity, allowing the court to promote
timely justice without undermining the traditional safeguards
enshrined in the Act.
61. Therefore, the discretion to record evidence before a
commissioner, coupled with the continued involvement of
delegates in deliberating on the evidence, serves the dual
purpose of efficiency and fairness. Modern safeguards, such as
video recordings and technological interventions, ensure that
the testimony is preserved with integrity, allowing the court to
expedite proceedings while adhering to the statutory
mandates of the PMDA.
62. The evolving role of technology in the administration of
justice supports a broader, more progressive view of legal
processes. As courts worldwide have increasingly recognised,
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integrating modern technological tools can enhance efficiency
while safeguarding the rights and interests of all parties. In
the context of Parsi matrimonial disputes, using
commissioners to record evidence, if necessary, supplemented
by technological advancements such as video recordings and
remote testimony, offers a viable path forward. It allows for
the expeditious resolution of disputes while preserving the
essential role of the delegates and maintaining the integrity of
the trial process.
63. Patel J’s Order strikes a careful balance between the
need for procedural flexibility and the imperative of
preserving the fairness and integrity of Parsi matrimonial
trials. The discretion granted to the court under the CPC when
applied in harmony with the PMDA, ensures that the unique
community-oriented elements of the Act are respected while
adapting to the practical realities of modern litigation. In this
regard, we emphasise that the application of Order XVIII, Rule
4 and Order XXVI Rule 1 of CPC serves the interests of both
expediency and justice, allowing courts to avoid unnecessary
delays without compromising the fundamental principles of
fairness that underlie matrimonial proceedings. We
unreservedly approve Patel J’s order.
64. The argument that section 45 of the PMDA is an
instance of legislation by incorporation, and therefore, the
provisions of recording evidence before a court commissioner
introduced much after the PMDA entered into force on 23
April 1936, cannot be accepted for several reasons discussed
hereafter.
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65. The provisions of Order XXVI CPC, as obtained on 23
April 1936, did provide for the appointment of a Court
Commissioner to record evidence in a Suit, though not in as
expansive terms as the 2002 amendment in CPC. Besides, on
the construction of Section 45 of PMDA, we are satisfied that
this is an instance of legislation by reference and not
legislation by incorporation. Therefore, even the amended
provisions of the CPC would apply, not merely the provisions
the CPC contained when the PMDA entered into force in
1936.
66. Recently, in Insolvency and Bankruptcy Board of India
Vs. Satyanarayan Bankatlal Malu and Others12, the Hon’ble
Supreme Court, after an exhaustive survey of the precedents
on the subject, explained that the effect of incorporation
means bodily lifting of the provisions of one enactment and
making it part of another, so much so that the repeal of the
former leaves the latter wholly untouched. However, in the
case of legislation by reference, the amendment or repeal of
the provisions referred to in the subsequent act will also bear
the effect of amendment or repeal of the said provisions.
67. The Court quoted Lord Esher M. R. in Re. Wood’s Estate
in13 p. 615: –
“… If a subsequent Act brings into itself by reference
some of the clauses of a former Act, the legal effect of
that, as has often been held, is to write those sections into
the new Act just as if they had been actually written in it
with the pen, or printed in it, and, the moment you have12
(2024) 6 SCC 508
13
(1886) LR 31 Ch D 607Page 27 of 33
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refer to the former Act at all.”
68. The court also quoted Brett, L.J., in Clarke Vs.
Bradlaugh14, in p. 69:-
“… there is a rule of construction that, where a
statute is incorporated by reference into a
second statute, the repeal of the first statute by a
third statute does not affect the second.”
69. In Girnar Traders (3) Vs State of Maharashtra15, the
Hon’ble Supreme Court has explained the tests for
determining whether the provision is an instance of
legislation by incorporation or legislation by reference. One of
the tests is where there is a general reference in the Act in
question to some earlier Act, but no specific mention is made
of the provisions of the former Act. In such a situation, the
provision is generally regarded as an instance of legislation by
reference. The Court held that the general reference,
ordinarily, will imply the exclusion of specific references, and
this is precisely the fine line of distinction between the two
legislations. The Court explained that both are referential
legislations, one merely by way of reference and the other by
incorporation. Section 45 of PMDA, as noted earlier, generally
refers to the provisions of the CPC, 1908, but not any specific
provisions.
14
1881 8 QBD 69
15
(2011) 3 SCC 1
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70. The CPC, 1908, contains primarily procedural provisions
that complement or supplement the provisions of PMDA. CPC
and PMDA provisions can coexist and operate without
conflict, except where the conflict is expressed or compellingly
implied. The expression “so far as the same may be
applicable”, far from excluding the application of CPC, evinces
a clear legislative intent of harmonious construction of the
provisions of PMDA and CPC, 1908.
71. Therefore, so long as nothing in the PMDA expressly or
impliedly bars the recording of evidence before a court
commissioner by resorting to the provisions of Order XVIII
Rule 4 or Order XXVI Rule 1 of CPC, the court cannot, based
on a strained construction of section 45 of PMDA, be denuded
of its discretion to direct or allow such recording.
72. The contention about PMDA being a Special Act that
would prevail over CPC, a General Act, is based on the legal
principle of statutory interpretation expressed in the maxims
of generalia specialibus non derogant and generaliabus
specialia derogant. They mean that general things do not
derogate from special things; if a special provision is made on
a certain matter, that matter is excluded from the general
provision.
73. But for these principles to apply, the relative nature of
the general or special provisions have to be determined with
reference to the area and extent of their application either
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generally or specially in particular situations (See Collector of
Central Excise Jaipur Vs Raghuwar (India) Limited16. Besides,
a general law cannot defeat the provisions of a special law to
the extent to which they are in conflict; otherwise, an effort
has to be made to reconcile the two provisions by a
homogenous reading. What, therefore, needs to be seen and
appreciated is whether there is any conflict or inconsistency
between the general and a special law for the former to yield
to the latter. The two enactments must be inconsistent for the
principle expressed in the two maxims to apply. In the
absence of any conflict or inconsistency, which is
irreconcilable, the above two maxims cannot be used. (see
Shah Niwaz Khan & Ors Vs State of Nagaland & Ors17)
74. Though PMDA may be a Special Act dealing with Parsi
marriages and divorces, nothing in this Act suggests any
wholesale exclusion of the provisions in CPC or conflict or
inconsistency. Instead, as noted above, Section 45 of PMDA
provides that the provisions of CPC shall, so far as the same
may be applicable, apply to proceedings in suits instituted
under PMDA, including proceedings in execution and orders
subsequent to decree. The two provisos to Section 45 do not
detract from the primary provision regarding the applicability
of CPC to proceedings and suits instituted under PMDA. There
16
AIR 2000 SC 2027
17
2023 11 SCC 376
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is nothing in Sections 18, 19, and 43 to 47 of PMDA or under
the scheme of PMDA to suggest any wholesale exclusion of
CPC provisions or, for that matter, any serious conflict or
inconsistency, except to the extent expressly or by necessary
implication, specified.
75. The two maxims only suggest that if a special provision
is made on a particular matter in a Special Act, then that
matter is excluded from the general provision, either under
the same or a different Act dealing with that matter. For
instance, Section 47 of PMDA restricts the jurisdiction of the
appellate Court, which restrictions find no place in the CPC.
To that extent, therefore, the general provisions defining the
powers of the appeal Court will have to yield to the special
provisions contained in Section 47 of the PMDA.
76. However, this is different from saying that the
provisions of CPC generally stand excluded in their
application to suits and proceedings under the PMDA. Such a
construction would militate against the express provisions of
Section 45 of the PMDA, which provides they “shall”, and not
merely “may”, apply to proceedings and suits under the
PMDA. The expression “so far as applicable” suggests that,
particularly in procedural matters, PMDA must have an
exclusion, either in specific terms or by necessary implication,
if any of the provisions of CPC are not intended to apply.
Further, section 46 of PMDA provides that the presiding judge
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shall decide all questions of law and procedure. This would
include the procedure of recording evidence.
77. None of the provisions relied upon by the learned
Counsel or others, either expressly or by necessary
implication, exclude the provisions of Order XVIII Rule 4(2) or
Order XXVI Rule 1 of CPC. It was admitted that affidavits in
lieu of examination in chief are routinely allowed and
accepted in suits and proceedings under the PMDA. This is in
pursuance of the 2002 amendment to CPC. In fact, in all
matters where there are no express or implied exclusionary
provisions, the CPC governs the procedure in suits and
proceedings in PMDA. As noted earlier, the legislature
intended to bring about some procedural uniformity to civil
trials of every stripe. Where the legislature intended to make
any departure, the legislature has made so either expressly or
by necessary implication.
78. For all the above reasons, we answer this reference by
holding that the Courts under the PMDA have the discretion
of directing or allowing evidence to be recorded before a
Court Commissioner, and it is not compulsory, in every case,
that evidence must only be recorded in the presence of the
delegates.
79. Typically, after answering the issue referred, the matter
is sent to the referral bench for disposal. However, in this
case, the referral order dated 31 July 2014 states that ” it will
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be in the fitness of things that this Appeal is placed for
hearing before the Full Bench.”
80. Accordingly, now that we have entirely agreed with the
reasoning in the order appealed, we could have dismissed the
appeal. Still, we direct that the appeal be placed before the
appropriate Bench for disposal of the appeal.
81. We thank the learned counsel for the valuable assistance
they rendered to us in this matter.
82. The registry to do the needful in the matter at the
earliest.
(R.I. Chagla, J) (B.P. Colabawalla, J) (M.S. Sonak, J)
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