Family law-1

In-camera Proceedings

Table of contents

1. Introduction

2. An over-view

3. Definition

4. Family Court & In-camera proceedings

5. Growing trends in in-camera proceedings

6. Habeas corpus petition, in-camera proceedings

7. Conclusion

In-camera proceedings

Introduction Every judicial proceeding undergoes a trial by the court. The normal

course of trial takes place in open-court, where general public have

access of being an audience. The courts are always open to public

observation. It is in this concept, it is said that justice shall not only be

rendered but appears to have been rendered, only then the general

public will repose confidence in the judiciary and its judicial

pronouncements. Every judgment concludes with a phrase

“pronounced in the open court” and thereafter recorded in the

prescribed diaries. It is general that all trials are conducted in open

court. Exception to it is ‘in-camera proceedings’.

In-camera proceedings are normally adopted in matrimonial

proceedings. A further development is trial in ‘rape’ cases. The

rationale behind it is to avoid embarrassment for the witness when

subjected to undesirable cross- examination touching the modesty of

women.

An over-view

In camera is a Latin phrase meaning “in private” or “in chambers”

and it is used in law to refer to proceedings conducted without public

access. While many legal systems place an emphasis on holding trial

proceedings in public whenever possible, there can be special situations

where proceedings need to be held confidentially. A judge can make a

decision to hear an entire trial in camera, or to review certain

arguments, documents, and evidence in private, while leaving other

parts of the trial open to the public.

When the legal system generally requires trials to be held in public,

clear justifications must be provided for moving proceedings to a

private location. A common argument is a concern about national

security in cases where evidence heard before the public could present

a security threat. Companies may also request hearings in camera to

protect trade secrets, under the argument that being forced to disclose

such information in public is damaging and unfair. Confidentiality may

also be extended to protect witnesses, including people at risk for their

testimony, and young children who might be upset by being in a

crowded court-room with strangers.

Definition

Aiyar’s judicial dictionary defines ‘camera’ as the judges ‘private

room behind the court’. Cases are sometimes heard by ‘in-camera’

especially in divorce matters or those in which pardanashin ladies are

to appear. -1

The Muslim’s have a tradition not to appear in public and

honouring their personal customs such as option is given to them.

A trial is said to take place in camera when the public is excluded from the court. Wharton’s law lexicon states that no criminal trial can take place in-camera, certain kinds of civil actions in the Chancery Division are heard in camera i.e. cases concerning secret processes of manufacture.-2

In a trial under the Official Secrets Act, by the 1920 Act, section 8,

the public may be excluded during part of the hearing( in certain cases)

but the verdict must be pronounced in public.

By the Children and Young Persons Act, 1933 Sec. 37,

1. Aiyar’s judicial dictionary 11th edition p. 213.

2. Wharton’s law lexicon 14th edition p. 157.

the judge is empowered to clear the court while a child or young

person is giving evidence in the case of an offence against decency or

morality, and all persons may be excluded except officers of the court,

parties, counsel, or certain newspaper representatives.

In Juvenile courts, the general publics also are not admitted to

these courts, but bonafide representatives of the press cannot be

excluded.

The phrase ‘in-camera proceedings’ is defined in Black’s law

dictionary as Trial or Hearing held in a place not open to the public such

as judge’s lobby or chambers.-1

Family Courts Act 1984 has laid down the procedure of in-

camera proceedings. One of the objectives of the Family Courts Act is

to simplify the rules of evidence and procedure so as to enable a family

court to deal effectively with a dispute.

Family Court & In-camera proceedings

Section-11 of Family Courts Act:

Proceedings to be held in-camera

1. Black’s law dictionary, 6th edition p. 760

In every suit or proceedings to which this act applies, the

proceedings may be held in-camera if the family court so desires

and shall be so held if either party so desires.

A reading of this provision envisages two vital aspects:

1. It is made optional and discretionary for the family court for

resorting to in-camera proceedings.

2. On the contrary, if both parties to the proceedings opt for in-

camera proceedings, it is made mandatory for the family courts

to take recourse to in-camera proceedings.

Growing trends in in-camera proceedings

Mediation and alternative dispute resolution evolved in

the judicial making process has further contributed to the

concept of in-camera proceedings. In the mediation and

reconciliation process, a kind of in-camera proceedings has

emerged over the years.

In the mediation process, the parties alone participate

in the presence of mediator. Thus, excluding the audience of

general public. Needless to state, excepting the mediator no

other officer or convener will have access to the proceedings.

Stricto senso, mediation may not bring in its sweep in the

definition of proceedings. Nevertheless, the result reached

thereby, ultimately becomes proceedings.

In the process of reconciliation also, in-camera

proceedings are resorted to. The presence of strangers would

totally find absent reconciliation process.

Arbitration is yet another avenue where in-camera

proceedings are normally adapted. It has been already stated,

in-camera proceedings, in depth and substance, is the absence

of public. This objective is well achieved in arbitral proceedings,

where the parties and the arbitrator would find place. The

presence of counsel is in accordance with the wishes of the

parties.

Habeas corpus petition, in-camera proceedings

In non-statutory habeas corpus petition filed under

Article 226 of constitution of India, where sensitive matters are

involved, the Hon’ble judges of High court, at times, resort to

hearing the parties in-camera, to facilitate parties to express

their intention fearlessly. The only object is to have the

intention of the parties revealed without an amount of fear

and un-influenced by outsiders. The latest Habeas corpus

petition dealt with the Hon’ble division of Madras High court in

the much debated romantic-tragedy of the case of Illavarasan

and Dhivya of Dharmapuri did not spare to adapt in-camera

proceedings.

In most of the children custodial matters too, in-camera

proceedings are quite often undertaken, despite there being no

rigid law on this aspect.

Conclusion

In camera proceedings have their own advantages

and disadvantages. The very purpose of Evidence Act is to

thread-bare denude the witness to speak truth. This aspect can

well be achieved only if one is examined and cross-examined in

open court. At the same breadth, it cannot be ruled out honest

witnesses may themselves confess and confide truth in privacy,

than in open court. The Family Courts Act also recognizes

arbitral procedure. The growing trends in alternative dispute

resolution would ultimately alleviate the open - court

examination and cross-examination of witnesses and the

success of in-camera proceedings will then be felt.

Bibliography

1. Aiyar’s judicial dictionary 11th edition p. 213.

2. Wharton’s law lexicon 14th edition p. 157.

3. Black’s law dictionary, 6th edition p. 760.

4. Family Courts Act.

5. Constitution of India.