MUMBAI: No faith demands that litigants should be made to wait endlessly for their cases to be heard, the Bombay high court said in a ruling that signals reforms at the special Parsi chief matrimonial court. Justice Gautam Patel ruled that the court had the discretion to direct that evidence can be recorded by a commissioner and it was not mandatory in every case that it should be recorded only before a court with the delegates or a jury present.
Justice Patel rejected the claim, including by lawyers of Parsi Punchayet Funds and Properties which had intervened in the matter, that any change in procedures was akin to tampering with a special law meant for a minority community. “This is not a submission that ought ever to have been made. Belonging to any particular community is not a mantra for clinging to a system that ill serves its purpose or the interests of the community itself. A procedural reform is not a matter of faith or religion,” said Justice Patel, adding, “Achieving a fair and just result by and within law is no apostasy. No faith could possibly demand that its adherents be made to wait endlessly for their cases to be decided.”
The special court, which meets twice a year to hear Parsi matrimonial cases, is the only court in India to have a system of delegates or jury. The jury system for trials had been abolished in India in the 1960s after the infamous case where a Parsi naval officer was accused of shooting dead his wife’s lover. Under the Parsi Matrimonial and Divorce Act enacted in 1936, the delegates are elected from the community and the state can appoint around 30 delegates for a period of 10 years, who can then be reappointed. During a trial, three or five delegates are present to assist the court on the issue of facts. It is however only the judge who can deliver the verdict. The system however has also led to delays, and the high court pointed to the trust’s affidavit that the matters at the special court had come to a standstill since 2012 as there had been no session with delegates.
The court said that it was imperative to change with time and technological advances. The judge said that the special court could take safeguards and direct that delegates be present when the commissioner is recording evidence or that an audio video recording of the proceedings before a commissioner could be watched by the delegates later. “I do not, in fact, see as very distant a time when each of the five delegates, the parties, the witnesses, the lawyers and the judge or the commissioner are all in different locations and yet able to work ‘together’ at the same time.” Justice Patel said.
The court’s orders came in a matter relating to a matrimonial dispute between a Parsi couple. The lawyers for the husband and the trust were opposed to the appointment of a commissioner. Advocate general Darius Khambata said that the provisions of the Civil Procedure Code that allow for a commissioner to be appointed should not be completely jettisoned. The CPC provides that in cases where the evidence has been filed on affidavit, a commissioner can be appointed to record cross examination or re-examination of witnesses. “In a given case, or in certain special circumstances, it should be possible to quicken disposal of matters by referring part of the work, i.e., recording of evidence, to a commissioner. If this saves the court’s time, then it is not only no bad thing, but is perhaps a result devoutly to be wished for,” said the advocate general, a view that the court agreed with.