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2026 Supreme(Online)(Ker) 35172
IN THE HIGH COURT OF KERALA AT ERNAKULAM
G. Girish, J
Muhammed Shafi – Appellant
Versus
State Of Kerala – Respondent
OP(CRL.) NO. 857 OF 2025
For the Appellants/Petitioners: Shajin S. Hameed, P.M. Saneer
For the Respondents: R.T. Pradeep, Niranjan T. Pradeep, Sangeetharaj.N.R
Evidence must be recorded in open court unless all parties consent to an Advocate Commissioner; in-camera proceedings are generally at the discretion of the party whose privacy is primarily concerned.
Headnote:The case involves a challenge to a Family Court order regarding the mode of trial in a maintenance petition. The petitioner sought an in-camera trial, but the lower court rejected this while ordering witness examination via an Advocate Commissioner. The High Court determined that the appointment of an Advocate Commissioner for witness recording requires the consent of all parties, referencing established precedent. The core issues were whether an Advocate Commissioner could record evidence without mutual consent and whether the petitioner could insist on in-camera proceedings. The ratio decidendi established that a Family Court cannot compel witness examination via an Advocate Commissioner if any party objects, necessitating an open court trial in such instances. Additionally, in-camera trials are a privilege typically sought by the party whose privacy is at risk. The original petition was allowed in part; the order to use an Advocate Commissioner was set aside, the request for in-camera trial was rejected, and the Family Court was directed to conduct the trial in open court.
JUDGMENT
Ext.P10 order passed by the Family Court, Neyyattinkara, in C.M.P.No.4/2025 in M.C.No.150/2022 is under challenge in this original petition filed by the counter petitioner in the aforesaid M.C.
2. The prayer in the aforesaid petition before the court below was to conduct an in-camera trial in that M.C. The learned Judge of the Family Court, while declining the prayer to have in-camera trial, directed that the trial be conducted with an Advocate Commissioner examining the witnesses, so that the privacy of the parties could be protected. Challenging the aforesaid verdict of the court below, the petitioner is here before this Court with this original petition.
3. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents 2 to 4.
4. The learned Counsel for the petitioner brought to my notice a decision of the Division Bench of this Court in [ Shemeera v. Shani (2018 (2) KHC 494], in which it is held that the recording of evidence by the Advocate Commissioner in a Family Court could be done, if only the parties concerned have no objection to adopt such a course of procedure. It is made clear in the aforesaid decision that if any of the parties objects to such a course of procedure, the Family Court is obliged to conduct the examination of witnesses in the face of the court itself. Going by the aforesaid dictum laid down by the Division Bench of this Court, the order passed by the Family Court, Neyyattinkara, directing the examination of witnesses through the Advocate Commissioner, is prima facie unsustainable, since the petitioner herein, who is the counter petitioner in that M.C., had opposed such a course of procedure. However, the petitioner herein cannot be heard to say that there should be an in-camera proceedings in the aforesaid case, since such a contention could be raised only by the petitioners in that M.C., if they have got a case that their privacy would be in peril, if the proceedings are conducted in open court. Since the petitioners in that M.C. are against in-camera proceedings, the decision of the Family Court, rejecting the request of the counter petitioner in that M.C. (the petitioner herein), is perfectly in order.
In the result, the original petition stands allowed in part as follows:-
1) The direction of the Family Court, Neyyattinkara, in Ext.P10 order, to have the examination of witnesses in M.C.No.150/2022 through an Advocate Commissioner, is hereby set aside.
2) The request of the petitioner herein to have in-camera trial, stands rejected.
3) The Family Court has to conduct the trial, in open court.
4) The Family Court shall expedite the proceedings, and make every endeavor to dispose of the matter, as early as possible.
