Aman Kumar Namdev vs Smt. Roshni Namdev W/O Aman Kumar Namdev
2023 Latest Caselaw 21923 MP

Madhya Pradesh High Court

Aman Kumar Namdev vs Smt. Roshni Namdev W/O Aman Kumar Namdev on 20 December, 2023

Author: Vishal Dhagat

Bench: Vishal Dhagat

                                                               1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                              ON THE 20 th OF DECEMBER, 2023
                                               MISC. PETITION No. 2244 of 2023

                           BETWEEN:-
                           AMAN KUMAR NAMDEV S/O SHRI MANOJ KUMAR
                           NAMDEV, AGED ABOUT 28 YEARS, OCCUPATION:
                           FOREST GUARD BHAGAT SINGH WARD KARVE
                           COLONY SEONI DISTRICT SEONI (MADHYA PRADESH)

                                                                                             .....PETITIONER
                           (BY SHRI VAIBHAV JAIN, ADVOCATE )

                           AND
                           SMT. ROSHNI NAMDEV W/O AMAN KUMAR NAMDEV
                           D/O SHIVKUMAR NAMDEV, AGED ABOUT 25 YEARS,
                           VILLAGE JHIRI POST CHIMARI THANA TAHSIL
                           CHHAPARA DISTRICT SEONI (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                           (BY SHRI GAJENDRA TAMSIKAR, ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                                ORDER

Petitioner has filed this petition under Article 227 of Constitution of India, challenging order dated 2.3.2023 by which application filed by the petitioner for adducing evidence in respect of receiving conversation between husband and wife, as secondary evidence, was dismissed by the trial court. Trial court while considering the application, relied on judgment passed by this Court in case of Rayala M Bhuvaneswari vs. Nagaphanender Rayala, AIR 2008 AP 98 and Vishal Kaushik Vs. Family Court and other, 2015 Rajasthan and has dismissed the application.

2. Learned counsel for the petitioner relied on judgment passed by Delhi High Court in the case of Deepti Kapoor vs. Kunal Julka, 2020 SCC Online Del 672, wherein it has been held that Section 14 of Family Courts Act carves out an exception. As per Section 14 of Family Courts Act, Family Court may receive as evidence any report, statement, document, information, matter which in opinion of Court will assist it to deal effectively matter in dispute irrespective of the fact whether said evidence is relevant or admissible under Evidence Act, 1872. Placing reliance on said Section, Delhi High Court held that conversation between husband and wife is admissible in evidence in proceedings. Learned counsel for the petitioner further submitted that Section

122 of Evidence Act also carves out an exception regarding admissibility of evidence between husband and wife if case is between them. Learned counsel for the petitioner has further relied on Section 14 of Family Courts Act, 1984 wherein it has been laid down that Family Court may receive as evidence any report, statement, documents, information, etc. which will assist it to deal effectually with a dispute, whether or not the same would be relevant or admissible under the Indian Evidence Act, 1872. Section 20 of Family Courts Act, 1984, lays down that Act will have overriding effect on any other law for time being in force. In these circumstances he made a prayer for setting aside impugned order and permitting petitioner to adduce secondary evidence in respect of conversation between husband and wife.

3. Learned counsel for the respondent has relied upon the judgment passed by this Court in the case of Anurima @ Abha Mehta vs. Sunil Mehta, reported in 2016 (1) MPLJ 333. In said judgment it has been held that receiving evidence of conversation between husband and wife will be

infringement of rights of privacy which is guaranteed under Articles 19 and 21 of Constitution of India. On basis of same, learned counsel for the respondent makes a prayer for dismissal of petition.

4. Heard the learned counsel for the parties.

5. Section 122 of Indian Evidence Act 1872, carves out an exception regarding adducing of evidence in criminal cases when proceedings are between married couples. Exception in Section 122 is carved out only in criminal cases and will not be of any help to petitioner in civil proceedings between husband and wife. In civil case such evidence is not permissible.

6. However, on going through the provision of Section 14 and Section 122 of Indian Evidence Act, it cannot be said that bar which has been created by Section 122 of Evidence Act, will be lifted by Section 14 of the Family Courts Act, 1984. Right of privacy is also inherent and constitutional right and same cannot be taken away.

7. In these circumstances, I do not find any merit in this petition. Misc. Petition is dismissed.

(VISHAL DHAGAT) JUDGE mms