Case Note & Summary
The case involved a suit filed under the Parsi Marriage & Divorce Act, 1936, by Rohinton Panthaky against Armin R. Panthaky. During the proceedings, a question arose whether the court could direct that evidence be recorded before a Commissioner under Order 18 Rule 4(2) of the Code of Civil Procedure, 1908, or whether it must be recorded in court with delegates present as per Section 46 of the Parsi Marriage & Divorce Act, 1936. The court noted conflicting views on this issue, with some courts permitting evidence before a Commissioner. The court examined Section 46 of the Parsi Marriage & Divorce Act, which provides for the presence of delegates during evidence recording, and Order 18 Rule 4(2) CPC, which allows the court to appoint a Commissioner for recording evidence. The court held that Section 46 does not contain a mandatory prohibition against recording evidence before a Commissioner; the provision for delegates is directory and not mandatory. The non-obstante clause in Section 46 only excludes the application of the Indian Evidence Act, not the CPC. Therefore, the court has discretion under Order 18 Rule 4(2) CPC to appoint a Commissioner for recording evidence, and such appointment does not conflict with Section 46. The court also noted that delegates are not judges and their presence is not essential for valid evidence recording. The court concluded that the evidence in the suit could be recorded before a Commissioner, and the Notice of Motion for intervention was disposed of accordingly.
Headnote
A) Parsi Law - Evidence Recording - Discretion to Appoint Commissioner - Section 46 of Parsi Marriage & Divorce Act, 1936 and Order 18 Rule 4(2) of CPC, 1908 - The court held that Section 46 does not contain a mandatory prohibition against recording evidence before a Commissioner; the provision for delegates is directory and not mandatory. The court has discretion under Order 18 Rule 4(2) CPC to appoint a Commissioner for recording evidence, and such appointment does not conflict with Section 46. The non-obstante clause in Section 46 only excludes the application of the Indian Evidence Act, not the CPC. (Paras 2-10) B) Parsi Law - Delegates - Role and Presence - Section 46 of Parsi Marriage & Divorce Act, 1936 - The requirement of delegates being present during evidence recording is not mandatory; it is a procedural direction that does not override the court's power to appoint a Commissioner under CPC. The delegates are not judges and their presence is not essential for valid evidence recording. (Paras 11-15) C) Civil Procedure - Commission for Evidence - Order 18 Rule 4(2) CPC - The court has inherent discretion to direct that evidence be recorded before a Commissioner, especially in cases where it is expedient in the interests of justice. This power is not curtailed by the special provisions of the Parsi Marriage & Divorce Act, 1936. (Paras 16-20)
Issue of Consideration
Whether in a suit under the Parsi Marriage & Divorce Act, 1936, the court has discretion to direct that evidence be recorded before a Commissioner under Order 18 Rule 4(2) CPC, or must it only be recorded in court with delegates present.
Final Decision
The court held that evidence in a suit under the Parsi Marriage & Divorce Act, 1936 may be recorded before a Commissioner under Order 18 Rule 4(2) CPC, and that Section 46 does not mandate in-court recording with delegates. The Notice of Motion for intervention was disposed of with leave granted limited to the present hearing.
Law Points
- Interpretation of Section 46 of Parsi Marriage & Divorce Act
- 1936
- Order 18 Rule 4(2) CPC
- discretion of court to appoint commissioner for evidence
- non-obstante clause
- harmonious construction
