Sanjib Sarkar vs Smt. Rajasree Roy
2021 Latest Caselaw 5653 Cal

                                      1


                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE


PRESENT:

HON'BLE JUSTICE SUBRATA TALUKDAR
                 AND
HON'BLE JUSTICE SAUGATA BHATTACHARYYA


                              FAT 146 of 2020
                                    With
                            IA No. CAN 1 of 2020

                               Sanjib Sarkar
                                    vs.
                             Smt. Rajasree Roy


For the Appellant                     :    Mr. Prantik Ghosh


For the Respondent                    :    Mr. Kiron C. Saha

Mr. Pratip Mukherjee Mr. Omar Faruk Gazi

Heard on : 26/08/2021

Judgment on : 11/11/2021

Subrata Talukdar, J:

Under challenge in this appeal is a judgement and decree dated the

13th of December 2017 passed by the Learned Trial Court, being the Second

Additional District Judge at Sealdah, in Matrimonial Suit No. 142 of

2017(for short referred to as the Learned Trial Court and the said MAT suit

or only the MAT suit respectively).

By the impugned judgement and decree the Learned Trial Court

upheld the prayer for annulment of marriage filed by the Petitioner/ the Wife

under Section 25(III) of the Special Marriage Act, 1954(for short the Special

Marriage Act). The Respondent/ the Husband in the MAT suit is the

appellant before this Court (hereinafter referred to as the appellant/ the

husband). The respondent in this appeal is the wife (hereinafter referred to

as the respondent / the wife).

The Learned Trial Court, inter alia, held that the consent of the

respondent/ the wife was obtained by the appellant/ the husband by

practising fraud. It was held that the appellant/ the husband, prior to

marriage and during their period of courtship, represented to the

respondent/ the wife that he was a school teacher earning a handsome

salary. It was further represented that the family of the appellant/ the

husband was well-to-do and the appellant/ the husband intended to start

construction of his own house on a plot of land at Durganagar.

The couple were introduced to each other over Facebook in 2014. The

introduction ripened into a love affair and the marriage was ultimately

registered on 16th September 2016 before the Special Marriage Registrar,

P.S. Maniktala, Kolkata - 67, under the jurisdiction of the Learned Trial

Court.

The Learned Trial Court took notice of the contention of the

respondent/ the wife that two days after registration of the marriage, i.e. on

18th of September 2016, the appellant/ the husband confided the truth

connected to his actual state of affairs before the respondent/ the wife. It

was, inter alia, confided that the appellant/ the husband is a Group-D staff

and not a school teacher. His family did not belong to the well-to-do strata of

society. He had contracted marriage with the respondent/ the wife with the

intention of gaining a respectable living standard out of her income.

To support her allegations before the Learned Trial Court, the

respondent/ the wife relied upon several documentary evidence which were

marked as Exhibits. The documentary evidence pertain to several

complaints before the police authorities as well as before the Cyber Cell of

Kolkata Police. The complaints, inter alia, pertain to the alleged circulation

of intimate and obscene pictures of the respondent/ the wife with the

appellant/ the husband or of herself alone. Another set of evidence relate to

the electronic messages sent over Facebook by the appellant/ the husband

to the respondent/ the wife which demonstrated the fraud practised by him

to entice the respondent/ the wife into a marital relationship.

The defence of the appellant/ the husband before the Learned Trial

Court is one of denial. It is submitted that throughout the period of their

courtship and following registration of their marriage, the respondent/ the

wife had visited the residence of the appellant/ the husband and interacted

with his family members. The actual physical and economic status of the

appellant/ the husband was therefore all along known to the respondent/

the wife. There being no manner of concealment or misrepresentation on the

part of the appellant/ the husband, the prayer for a declaration of nullity of

marriage under Section 25 (III) of the Special Marriage Act should fail.

Mr. Ghosh, Learned Senior Counsel appearing for the appellant/ the

husband, takes the primary point that the so-called electronic evidence

relied upon by the respondent/ the wife before the Learned Trial Court in

support of her stand that false representations have been made by the

appellant/ the husband were inadmissible as evidence. It is submitted that

such electronic messages sent through Facebook could not be relied upon

on behalf of the respondent / the wife since such messages were not

certified by law as provided under Section 65B (4) of the Indian Evidence

Act.

It is argued that law has been settled In Re: Arjun Panditrao Khotkar

Versus Kailash Kushanrao Gorantyal, reported in 2020) 7 SCC 1 on the point

that secondary evidence by way of electronic record is admissible only if

such evidence is supported by a requisite certificate under Section 65B

(4)(supra). It is argued that the Learned Trial Court failed to take judicial

notice of the fact that the documentary evidence comprising the electronic

record of the purported messages sent by the appellant/ the husband are

not supported by any certificate under Section 65B (4) (supra). Such

evidence in electronic form, particularly Exhibit-9 series, could not have

been therefore relied upon by the Learned Trial Court to arrive at a

conclusion that there has been misrepresentation amounting to fraud

practised by the appellant/ the husband for obtaining consent to marriage

from the respondent/ the wife.

It is further submitted that the purported record of electronic evidence

relied upon on behalf of the respondent/ the wife is beyond the scope of

actual pleadings. The so-called admitted documents are simply a product of

oral evidence generated by and on behalf of the respondent. Even the oral

evidence of the respondent / the wife has been thoroughly rebutted by the

evidence of DW-2 which has not been demolished in cross-examination.

Per contra, on behalf of the respondent/ the wife the judgement and

decree impugned is supported on the ground that the evidence made

available before the Learned Trial Court have been supported by the primary

evidence of the respondent/the wife herself who was the petitioner in the

Mat Suit. It is submitted by Mr. Saha, Learned Counsel, that the essential

facts pertaining to the events leading up to the registration of marriage have

not been demolished. It is pointed out that DW-2, one Susanta Adhikary, is

the brother-in-law of the appellant/ the husband and hence an interested

witness.

It is argued that the appellant/ the husband was unable to deny the

primary facts and evidence submitted by the respondent/ the wife connected

to concealment of information. Probative value of the evidence tendered by

the respondent/ the wife before the Learned Trial Court cannot be negated on

the technicality of certification of electronic evidence since it is an admitted

position that such evidence has been accessed and/or tendered in primary

form by and from the plaintiff herself.

Having carefully considered the rival submissions as well as the

materials on record, this Court is required to first notice the arguments of

the appellant/ the husband that certification in terms of Section 65 (B)(4)

was absolutely necessary qua the electronic evidence tendered by the

respondent/ the wife. While noticing such issue this Court finds that the law

laid down in 2020) 7 SCC 1 creates a difference between the manner of

tendering primary evidence as distinguished from secondary evidence in

electronic form. It has been, inter alia, held by the Hon'ble Apex Court that

the requisite certificate in Section 65 B (4) is not necessary for the original

documents as produced which can be done by the owner of the laptop,

computer, computer tablet or even a mobile phone, by stepping into the

witness box and proving that the device concerned on which the original

information is stored and/or is operated by such owner who is tendering the

evidence.

The above situation of tendering evidence from a primary source is

distinguished from a situation where the computer and/or source of such

information happens to be part of a computer or computer network. Since it

is impossible to physically bring such network or system to the Court during

trial, the only method of proving such information contained in the

electronic record can be by way of certification provided under Section 65B

(4) of the Evidence Act, 1872 (as amended).

To the best of the mind of this Court, it is not denied by the appellant/

the husband that the electronic evidence relied upon on behalf of the

respondent/ the wife before the Learned Trial Court was sourced from the

original electronic device owned by the respondent/ the wife. It is the

respondent / the wife who has stepped into the witness box in support of

her primary contention relating to the fraud practised on her. It is an

admitted position that the electronic record relied upon by her was sourced

from her Facebook account.

This Court also does not find that the nature of the documentary

evidence as produced on behalf of the respondent/ the wife before the

Learned Trial Court was at divergence with her pleadings and the other

evidence on record. It is noticed that although the courtship lasted for two

years, the break-up of the marriage after only two days of registration could

only result out of a discovery or disclosure so enormous on the mind and

spirit of one of the parties, in this case the respondent/ the wife, as to make

any further bonding impossible.

In the backdrop of the above discussion, the judgement and decree

impugned is not interfered with.

However, considering the relative economic status of the parties, the

award of costs by the Learned Trial Court against the appellant/ the

husband stands set aside.

FAT 146 of 2020 with IA No. CAN 1 of 2020 stands thus disposed

of.

There will be no order as to costs.

Parties shall be entitled to act on the basis of a server copy of this

Judgement and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities

I agree.

(Saugata Bhattacharyya, J.) (Subrata Talukdar, J.)