Lalu vs Sheeja
2021 Latest Caselaw 19553 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                   OP (FC) NO. 752 OF 2019
 AGAINST THE ORDER IN IA 2435/2016 IN OP 166/2012 OF FAMILY
                COURT, IRINJALAKUDA, THRISSUR
PETITIONER:

         LALU,AGED 60 YEARS
         S/O.CHIRAMMAL AUGUSTINE, MANAVALASSERY VILLAGE,
         IRINJALAKUDA DESOM, MUKUNDAPURAM TALUK.

          BY ADV T.N.MANOJ


RESPONDENTS:

    1     SHEEJA,D/O.PAZHAYEDATH PARAMBIL PETER,
          PERAMANGALAM VILLAGE AND DESOM,THRISSUR TALUK,
          THRISSUR DISTRICT-680545.

    2     JOSE,S/O.PAZHAYEDATH PARAMBIL PETER, PERAMANGALAM
          VILLAGE AND DESOM,THRISSUR TALUK, THRISSUR
          DISTRICT-680545.

    3     ROSILY,W/O.PAZHAYEDATH PARAMBIL PETER,
          PERAMANGALAM VILLAGE AND DESOM,THRISSUR TALUK,
          THRISSUR DISTRICT-680545.

          BY ADV SRI.DILIP J. AKKARA

     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(FC) No.752/2019

                                -:2:-




                         J U D G M E N T

Dated this the 17th day of September, 2021

Kauser Edappagath, J.

The order of the Family Court, Irinjalakuda (for short, 'the

court below') in IA No.2435/2016 in OP No.166/2012 dated

31/8/2016 is under challenge in this original petition.

2. The petitioner herein is the petitioner and the

respondents are the respondents in OP No.166/2012 on the file of

the court below. The said original petition was filed for

cancellation of the decree of divorce obtained by the 1 st

respondent in OP No.2139/2010 on the ground of fraud. The

petitioner filed IA No.2435/2016 at the court below u/s 45 of the

Evidence Act to forward two CDs produced by him for comparison

and identification of the sound/voice therein with that of three

persons who are the relatives of the respondents. The court

below as per the impugned order dismissed the application

mainly holding that the mandatory requirement stipulated u/s

65B(4) of the Indian Evidence Act was not complied with. The OP(FC) No.752/2019

said order is under challenge in this original petition.

3. Heard both sides and perused the records.

4. The CD allegedly contains the conversation between

the power of attorney holder as well as the brother of the

petitioner, the respondent No.3, and her daughter through mobile

phone. According to the petitioner, the said conversation was

recorded in the mobile phone and later on copied in the CD.

Along with the CD, the mobile phone was also produced. It is

alleged that the power of attorney holder of the petitioner had

conversation with the respondent No.3 and her daughter viz.

Jeena and there are certain admission and other revelations with

respect to certain crucial facts relating to the case and hence the

CD containing the conversation has to be sent for expert opinion.

For that purpose, the parties to the conversation are to be

summoned and their voices are to be recorded and both admitted

and disputed electronic records are to be sent to the examiner of

electronic evidence for his opinion as required u/s 79A of the

Information Technology Act, 2000 (for short 'the IT Act'). The

court below dismissed the application holding that the CD in

question could be admitted in evidence only as a secondary OP(FC) No.752/2019

evidence and hence the mandatory requirements under Section

65B of the Evidence Act have to be complied with. It was held

that since the CD was not supported by a certificate u/s 65B(4) of

the Indian Evidence Act, it cannot be admitted in evidence.

Accordingly, the application was dismissed.

5. The application filed by the petitioner was to receive

electronic records in evidence as provided under Section 65B of

the Evidence Act. The application was filed only to forward the CD

produced by him to be examined by an expert as provided u/s

79A of the IT Act since the voice comparison cannot be done by

the court. The petitioner only wanted the voice recorded by him

and reduced to the CD to be examined by an expert. For the said

purpose, certificate u/s 65B(4) is not at all required. The

necessity of the certificate could be decided when the CD is

sought to be admitted in evidence at the time of trial. That apart,

the petitioner has produced the mobile phone as well. It is a

primary evidence u/s 62 of the Evidence Act. The Apex Court in

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal

(2020 (4) KHC 101) has held that the requisite certificate under

S.65B(4) is unnecessary if original document itself is produced. OP(FC) No.752/2019

Moreover, it is discernible from S.14 of the Indian Evidence Act

that the technicalities of the Indian Evidence Act regarding the

admissibility or relevancy of evidence are not strictly applicable

to the proceedings under the Family Court and in the matrimonial

dispute before the Family Court, a discretion has been given to

the court to rely on the documents produced if the court is

satisfied that it is required to assist the court to effectively deal

with the dispute. In this case, the petitioner wanted to get an

expert opinion on the disputed conversation between the parties

to the proceedings. The said opinion is relevant u/s 45 of the

Evidence Act. The court shall not preclude a party from adducing

evidence which may be relevant in accordance with the Evidence

Act to prove his case. For all these reasons, we are of the view

that the court below went wrong in disallowing the prayer sought

for in the application.

For the reasons stated above, we set aside the impugned

order. IA No.2435/2016 stands allowed. The court below shall take

steps to summon the daughter of the 3 rd respondent viz. Ms.Jeena

as a witness to record her voice. Thereafter, the court below shall

record the voice of the power of attorney holder of the petitioner, OP(FC) No.752/2019

respondent No.3 as well as Ms.Jeena in the presence of the

counsel for both parties or their representatives and thereafter

send the CD as well as the recorded conversation to the examiner

of electronic evidence for his opinion as required u/s 79 of the IT

Act. The expenditure shall be borne by the petitioner. The

original petition is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp OP(FC) No.752/2019

APPENDIX OF OP (FC) 752/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE OP 166/2012 PENDING BEFORE THE FAMILY COURT AT THRISSUR.

EXHIBIT P2 TRUE COPY OF OP 23/2012 PENDING ON THE FILES OF THE FAMILY COURT AT IRINJALAKUDA.

EXHIBIT P3 TRUE COPY OF THE PETITION IA 2435/16 OF THE FAMILY COURT AT IRINJALAKUDA.

EXHIBIT P4 TRUE COPY OF ORDER IN IA 2435/16 OF THE FAMILY COURT AT IRINJALAKUDA.

EXHIBIT P5              TRUE COPY OF    THE PETITION IA.4121/16
                        FILED BY THE    PETITIONER BEFORE THE
                        FAMILY COURT    AT IRINJALAKUDA TO REVIEW
                        THE ORDER IN    IA 2435/16.

EXHIBIT P6              TRUE COPY OF THE ORDER IA IA.4121/16 OF
                        THE FAMILY COURT AT IRINJALAKUDA.

EXHIBIT P7              TRUE COPY OF THE JUDGMENT IN OP(FC)15/19
                        OF THIS HONOURABLE COURT.