P L D 1963 (W (PLP)

His Lordship further observed "But unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further con clusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors." Thus, it would be seen that in English Courts the general rule is that no matrimonial cause should be heard in camera for the sake of public decency, whether the parties desire it or not. In paragraph 408 of Halsbury's Laws of England, Third Edition, Vol. 12, the learned author has enunciated the rule followed in England as under "The general rule that no matrimonial cause may be heard in camera for the sake of public decency, whether the parties desire it or not. The rule applies to legitimacy declaration suits, despite the easily comprehensible desire of petitioners to avoid publicity. In any proceedings for nullity of marriage, however, evidence on the question of sexual capacity must be heard in camera unless in any case the Judge is satisfied that in the interests of justice any such evidence ought to be heard in open Court."

4. In McPherson v. McPherson (AIR 1936 P C 246), in an appeal from the Supreme Court of the Province of Alberta, the question for decision before their Lordships was whether in an undefended divorce suit which was heard m the Judge's library the decree was void or voidable. In this connection their Lordships observed as under "Every Court of justice is open to every subject of the King. Publicity is the authentic hall‑mark of judicial as distinct from administrative procedure and a divorce suit is not within any exception. The actual presence of the public is never of course necessary. The Court must be open to any who may present themselves for admission." Their Lordships, however, held "that in spite of the breach of the rule of publicity, the decree was only voidable and not void and that the time for appeal having passed, the parties were entitled to the protection afforded by section 57, Matrimonial Clause Act, 1857."

5. Had there been no provision like section 53 of the Divorce Act, 1869, there would not have been any difficulty in accepting the contention of the appellant's counsel that the learned District Judge was not justified in ordering the holding of the divorce proceedings in camera. It would, therefore, be necessary to consider the provisions of section 53 of the Divorce Act for finding out whether the principles enunciated in the House of Lords case and the Privy Council decision can be applied to the above‑mentioned provision of law. Section 53 of the Divorce Act of 1869 is in the following terms "The whole or any part of any proceeding under this Act may be heard, if the Court thinks fit, with closed doors." A plain reading of this section shows that its object is to allow the parties the privilege of disclosing all relevant facts before the Court. This provision of law is a definite departure from the English practice. It confers on the Court in this country much more extensive power than that possessed in English Courts. The contention of Mr. Dorab Patel that under section 7 of this enactment the Courts in this country should act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief is not well‑founded for this provision under the terms of section 7 is subject to the provisions contained in the enactment itself. Thus section 53 B takes away the binding effect of the principles and rules under which the English Courts decide such cases. It seems to us, therefore, that the learned District Judge was fully justified to decide the question on the basis of the above‑mentioned provision of law.

6. Mr. Patel's grievance is that the learned District Judge has not applied his mind to the facts of the case and was hasty in arriving at the conclusion that this was a fit case in which the proceedings should be held in camera. The learned counsel has taken us through the impugned order and has contended that the holding of the proceedings in camera was granted on wholly irrelevant considerations. He has referred us to the concluding portion of the judgment "I have already pointed out that one reason for holding the proceedings in camera would be the nature of allegations made against each other by the parties to such proceedings. Respondent's Advocate has admitted that allegations of very reckless nature affecting the character of his client have been made by the petitioner. 1, therefore, consider it proper, for the reasons stated above, to allow the application. Order accordingly." It was urged before us that in all cases of divorce where the divorce is sought on the ground of adultery, reckless allegations are made and that by itself is no ground to hold the proceedings in camera. Mr. Patel strenuously argued before us that had that been the intention of the Legislature, it would not have left the discretion with the Courts but would have clearly laid down that in no such case the proceedings would be held in open Court. The contention of the learned counsel is not without force. It is not in every case where an allegation of adultery is made that the Court must order that the proceedings should be held in camera. The provisions of section 53 give discretion to the Courts to exclude in any particular case the public generally and there is no doubt that when indecent and obscene matters have to be canvassed during the trial, the Court may in the exercise of its discretion exclude the general public and hold the proceed ings with closed doors.

7. In the light of the discussion in the earlier part of the judgment it appears to us that the view of the Judicial Committee that "publicity is the authentic hall‑mark of judicial as distinct from administrative procedure and a divorce suit is not within any of the exceptions" still holds good. But this principle can give way only in some cases in order to discharge the paramount duty of doing full justice between the parties. In our opinion Courts in this country are fully competent to hold proceedings in camera for the sake of public decency or morality. In camera trial can also be ordered to be held in cases where justice cannot be done if it is held in public. No hard and fast rule can be laid down and it would depend on the facts of each case, but the Court before passing such an order must satisfy itself that by nothing short of the exclusion of the public can justice be done.

8. In the present case the learned Subordinate Court has not exercised the discretion vested in him on these principles. He has passed the impugned order mainly on the grounds that respondent No. 1 is a high Government official, the facts involved are of a personal and intimate nature and allegations of reckless nature were made against the appellant or by the parties against each other. In our opinion these grounds by themselves are not good and sufficient for holding the trial behind closed doors. As a matter of fact the stage for passing the impugned order had not yet reached. The trial has not yet commenced and the appropriate stage to pass it would have been after it had begun. The learned Subordinate Court did not even consider the question whether the parties interests could be protected by prohibiting the publicity of the proceedings in the press. In this connection the attention of the learned Subordinate Court may be drawn to an instructive case decided by the Lahore High Court in the case of the Province of West Punjab v. Khan Iftikar Hussain Khan (A I R 1950 Lah. 143), in which the interest of the State was safeguarded by restricting the publication of the proceeding to a limited extent. The relevant portion of the observation in that case is reproduced below "Thus, it is well‑settled that in cases affecting wards and lunatics, no part of the proceedings may be published without the express permission of the Court, and in cases affecting secret trade and manufacturing processes the same rule is applied. In the former case, the ground of the restriction is that the jurisdiction relates to Court. In the latter case, the power proceeds on the basis that in the absence of secrecy, justice cannot be administered at all. The latter consideration is directly pertinent to these proceedings ; the charges relating to high matters of State and the conduct in question being that of a Premier of an important Province, it is impossible to investigate them fully, for the due formation of a just decision, without entering upon matters, the disclosure of which would be detrimental to the highest interests of the State. Therefore, the consideration that full publicity should be given to all proceedings in this Court, to which it must not be understood that we attach any but the highest importance, must give place to the paramount duty of doing full justice in the case, to the extent that appropriate restrictions may be placed upon the extent of publicity which may be given to the Court's pro ceedings."

9. On the facts of this case we are satisfied that the learned Subordinate Court failed to take into consideration these well established principles before passing the impugned order. No only this, but he passed an order for holding the whole proceed ings in camera although the counsel for Respondent No. 1 during z the arguments before him had confined it only to the examina tion of the parties. In our opinion the learned Subordinate Court did not exercise the discretion vested in him on sound judicial principles. We would, therefore, set aside the impugned order and direct him to dispose of the application under section 53 of the Divorce Act of 1869 at the time of the trial on fresh material produced by the parties and keeping in view the observations made in this appeal.

10. A preliminary objection was raised that no appeal lay to this Court from an order passed by the Subordinate Court under section 53 of the above‑mentioned enactment. Mr. Patel has referred us to two decisions of the Lahore High Court reported in the case of Robert Cameron Chamarette v. Mrs. Phyllis Ethal Chamarette (A I R 1937 Lah. 176) and Noble Millicans v. Mrs. Gladys Millicans (A I R 1937 Lah. 862). In both the cases it was held that interlocutary orders passed by a Court under the Divorce Act of 1869 are subject to appeal under section 55 of the Act. The objection raised has no force and is overruled.

11. In the result the appeal is allowed and the matter is remanded back for decision as ordered above. In the special circumstances of the case the parties are left to bear their own costs. K.B. A. Appeal accepted.