Appeal against in-camera trial only for petitioner
Gopan
(Querist) 27 November 2013
This query is : Resolved
I'm the respondent in a divorce case filed under HMA 13(1) on ground of impotency and mental cruelty arising out of non-consummation of marriage which lasted only one month.
I've undergone potency test by state medical board on my application for the same in court,and the report is in my favour.
The petitioner, wife, filed application under HMA-22 & FC Act 11 for in-camera trial for petitioner, respondent and all witnesses including the doctors in the medical board.
I opposed the same saying in-camera should only be allowed for petitioner, and not for other witnesses especially the doctors in medical board.
The FC passed the order allowing in-camera trial for the petitioner only. The order says the above petition was filed u/s 11 of FC Act and nothing mentioned about HMA-22.
Now, the petitioner approached the High Court against the FC order on contention that FC ignored the given below points:
1) Sec 11 of FC act clearly states that 'In every suit or proceedings to which this act applies the proceedings may be held in camera if the family court desires AND SHALL BE HELD SO IF EITHER OF THE PARTY SO DESIRES.
The court failed to understand the meaning of the word SHALL used in the above section.
2) Sec 22 of HMA 1955 also mandates a procedure to conduct in camera.It also imposes an obligation to the courts conduct trial in camera. The word used in both sections 11 & 22 is "Proceedings" which means entire proceeding in a suit from start to end.
Sec 22 of HMA also casts a mandatory duty on courts to strictly hold the proceedings before it in camera.
So, allowing the in camera only for the petitioner is illegal and should be set aside.
Now, please help me to clear the following points:
a) In such a case involving personal privacy issues like impotency, should FC court allow in camera for entire proceedings even if the respondent wants open court trial for himself and witnesses but not against in camera for petitioner only?
b) Why should the evidence of doctors from medical board which only says about the potency of husband be conducted in camera? Even the husband wants open court.
c) It would be helpful if anybody provide any judgements from HC/SC regarding in-camera proceedings which totally deny or allow for only one party or selected proceedings in one suit?
Please advise.
R.K Nanda
(Expert) 27 November 2013
consult lawyer with ur case papers.
Gopan
(Querist) 27 November 2013
Ok. I'm sure that my advocate will do the needful. But i'm asking for advise here is to get the view points of all experts on such a issue. Here, I've also seen the experts giving different opinions and at last reaching on consensus.
Biswanath Roy
(Expert) 28 November 2013
Dear Gopan,
You raised an interesting question of law.
Sec.11 of the FC Act prescribes "the proceedings may be held in camera if the family court desires and shall be held so if either of the party so desires" According to the principle of the interpretation of Statute here the word " AND" CORRELATES TO THE WORD " MAY" and stands as an injunction to the word MAY.
In my view the order of the F C court's order is not appealable.
Biswanath Roy
(Expert) 28 November 2013
Dear Gopan,
You raised an interesting question of law.
Sec.11 of the FC Act prescribes "the proceedings may be held in camera if the family court desires and shall be held so if either of the party so desires" According to the principle of the interpretation of Statute here the word " AND" CORRELATES TO THE WORD " MAY" and stands as an injunction to the word MAY.
In my view the order of the F C court's order is not appealable.
Biswanath Roy
(Expert) 28 November 2013
TYPOGRAPHICAL ERROR
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In my message read the word INJUNCTION as CONJUNCTION.
T. Kalaiselvan, Advocate
(Expert) 29 November 2013
The discretionary judgment of court can be challenged in the high court but the in camera proceedings decision is as per law and the judge has rightly given the order, Sec 22 and 11 of FC act denote the same provisions, what is the outcome of the appeal?
Gopan
(Querist) 30 November 2013
Thanks.
The appeal will be heard on 4th Dec. So, I'll update outcome later.
R.K Nanda
(Expert) 30 November 2013
it is ok. ur welcome.
ajay sethi
(Expert) 30 November 2013
best of luck for your appeal
Gopan
(Querist) 02 December 2013
Thanks for the responses.
The appeal got heard and allowed by HC today. So, the FC order allowing in camera only for petitioner stands cancelled, and the trial of respondent & witnesses will also be conducted in camera.
Now, Is there any option for me to challenge the order of High Court allowing the appeal against FC order?
In this situation, if I go for appeal against HC order, is there any chance to get the FC order reinstated allowing the in camera for the petitioner only?
Why should court allow in camera for doctors who are the members of medical board which certified respondents potency?
ajay sethi
(Expert) 02 December 2013
you are at liberty to file appeal against HC order .
Biswanath Roy
(Expert) 02 December 2013
In absence of the entire facts I AVERRED my previous comment is correct. But I add further that doctors can be examined in camera in relation to Barberio's test and Florence test only.
