The court affirmed that under the Parsi Marriage and Divorce Act, 1936, courts retain discretion to allow evidence recording before a Court Commissioner, emphasizing procedural flexibility and judicial efficiency.

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 questions raised in this Appeal, it will be in the fitness of things 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.

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 provisions or peculiarities under the PMDA, either expressly or in any ev