Golden opportunity to lift stigma attached to treatment of sexual diseases: Delhi HC

The Delhi High Court has dismissed a suit to prevent the release of T-Series film “Khandani Shafakhana” while observing that the film was a golden opportunity to lift the stigma attached to sexual diseases and its treatment..The Judgment was passed by a Single Judge Bench of Justice Rajiv Sahai Endlaw..The plaintiff, Dr Vjiay Abbot who is an Ayurvedic Sexologist running Hakim Hari Kishan Lal Shafakhana Clinic in New Delhi, had sought the injunction along with damages of Rs. 2 crore from the producers of the film on the ground that the title of the film was deceptively similar to his “proprietary material”..The plaintiff had argued that the movie was based on the “real-life and contributions” of his father. The plaintiff submitted that by exploiting the ‘peshawari’ look of his father along with the goodwill and reputation, the defendants were making financial gains without obtaining any permission from the plaintiff and his family..The petitioner also argued that the film was defamatory and tarnished the reputation of the plaintiff..The defendants, on the other hand, argued that the plaintiff had not been using the mark “Khandani Shafakhana” for the last 18 years. It was further informed that the protagonist of the film was not any man but a woman and all apprehensions of the plaintiff, of the film being based on the father, were misplaced..The defendant also submitted that the film was socially relevant and raised the issues of the need for sex education and treatment of sexual disorders like any other disorder/diseases, thus taking the reputation of the plaintiff forward instead of tarnishing it..Agreeing with the defendant, the Court remarked that the film presented a “golden opportunity” to the plaintiff and other practitioners in his field as it sought to discuss the need to impart sex education and lift the stigma attached to sexual diseases/disorder/dysfunction and its treatment..“There is no gainsaying that till date sexual disorders/dysfunctions are viewed in the society as an abnormality and not as a curable disease.. This often results in the disorder/dysfunction, though being curable, going untreated, obviously at a huge emotional cost. Not only so, but the same also results in the sufferers seeking treatment from quacks and unqualified people, offering cure shrouded in secrecy. .The same is obviously to the prejudice of general practitioners thereof, who are because of the stigma attached to their profession, also deprived of the stature and respect in the society as accorded to other medical practitioners. The film, in two hours duration thereof, shows the societal transformation brought about on the subject.”.Expressing its disappointment with the objections raised by the plaintiff, it added,.“Alas! the plaintiff, inspite of viewing the film, has not seen the potential the film offers to him, to go out in the open and benefit not only himself but the public at large therefrom.”.Relying on a series of judgments by the Supreme Court and the High Court, the Court culled out the principles governing the test to be applied to cases seeking prevention of a film release. Some of these parameters are:.The effect of the film is to be judged from the standards of a reasonable/strong-minded, firm and courageous man and not those of weak and vacillating minds nor of those who scent danger in every hostile point of viewAny restrictions imposed on the expression of artistic thought affects the constitutional right of the film makers.Society is very mature society and there is no need for anyone to be sensitive.Standards of censorship must make a substantial allowance in favour of freedom.A film that illustrates the consequences of social evil, necessarily must show that social evil.A film is to be judged in its entirety, from the point of view of its overall impact.Films are a legitimate and important medium for the treatment of issues of general concern and it is open to a producer to project his own message, even if it is not approved by others.Freedom of expression is of inestimable value in a democratic society based on the rule of law.Anticipated danger from a film should not be remote, conjectural or far-fetched.When the Central Board of Film Certification (CBFC) has granted the certificate and only something with regard to the petitioner which was shown in the media is being reflected in the film, the Court should restrain itself and not grant an injunction..The Court further stated that the protection of literary titles lied in the field of trademark and unfair competition, only if it acquires a secondary meaning..“The evidence necessary to establish secondary meaning of literary work is evidence of an audience educated to understand that the title means the work of a particular artist; such evidence includes the length and continuity of use, the extent of advertising and promotion and the amount of money spent and the closeness of the geographical and product markets of the plaintiff and defendants.”, it further clarified..After applying these principles, the Court opined that the plaint did not show any right or cause of action for the plaintiff to sue as no proprietary rights of the plaintiff had been infringed..Apart from noting that the mark had admittedly not been in use for the last 18 years, the Court also observed that the words “Khandani Shafakhana” singly as well as when used in conjunction with each other were generic words..The Court also concluded that the viewer of the film was more likely to walk away after “being more open than earlier to the acceptability of the profession as a sexologist”..For the above reasons, the Court held that there was no merit in the suit and dismissed it..The petitioner was represented by Senior Advocate Harish Malhotra with advocates Kanishka Prasad, Harsimran Singh, Samridh Ahuja, Kartikeya & Khushboo Tomar. .The defendant was represented by Advocates Harsh Kaushik, Varun Tandon, Harshvardhan Jha, Dr. Harsh Surana, Deepali S. Surana & Sandeep Malik..Read the Judgement: