Madras High Court
Subulakshmi vs Amirtharajan on 27 January, 2021
CRP(PD)(MD).Nos.386&387 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 27.07.2021
Pronounced on : 06.08.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP(PD)(MD).Nos.386 and 387 of 2021
and
CMP(MD)No.2114 of 2021
Subulakshmi : Petitioner/Petitioner/Respondent
(in both petitions)
Vs.
Amirtharajan : Respondent/Respondent/Petitioner
(in both petitions)
Common Prayer: Civil Revision Petitions are filed under Article 227 of
Constitution of India, to call for the records of the common fair and executable
orders in I.A.Nos.3 and 4 of 2020, in H.M.O.P.No.94 of 2014, dated
27.01.2021 on the file of the Family Court, Tiruchirappalli and to set aside the
same.
(in both petitions)
For Petitioner : Mr.A.Haja Mohideen
For Respondent : Mr.V.Palanichamy
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
COMMON ORDER
These Civil Revision Petitions are directed against the orders passed in
I.A.Nos.3 and 4 of 2020 in H.M.O.P.No.94 of 2014, dated 27.01.2021 on the
file of the Family Court, Tiruchirappalli, dismissing the petitions filed under
Section 151 CPC, seeking permission to accept the Xerox copies as the
secondary evidence.
2.The revision petitioner is the respondent/wife and the respondent/
husband has filed a petition in H.M.O.P.No.606 of 2011 before the Principal
Subordinate Court, Thiruchirappalli, claiming divorce and that subsequently,
the case was transferred and the same was taken on file in H.M.O.P.No.94 of
2014 and the same is pending on the file of the Family Court, Thiruchirappalli.
3.When the main case was pending for the revision petitioner side
evidence, she filed two applications, the first one in I.A.No.3 of 2020 under
Section 151 CPC, seeking permission to treat the Xerox Copies as secondary
evidence and the other application in I.A.No.4 of 2020, under Order 8 Rule
3(a) and under Section 151 CPC for the reception of additional documents.
The learned Judge, Family Court, after enquiry, has dismissed the petition in
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
I.A.No.3 of 2020 and partly allowed the petition in I.A.No.4 of 2020, ordering
to receive the documents except the Xerox copies of the letters. Aggrieved by
the said orders, the wife has come forward with the present revisions.
4.It is evident from the records that the respondent herein has claimed
divorce on the ground of desertion and cruelty. The case of the revision
petitioner is that she has filed the copies of the letters written by her husband's
sister to her husband, that her husband has disputed the said documents during
his cross examination and that therefore, the said two copies of the letters are
to be received as secondary evidence.
5.The defence of the husband is that petition in I.A.No.3 of 2020, is
unknown to the Code of Civil Procedure and the Indian Evidence Act, that the
authenticity of the document sought to be marked is doubtful, that the
documents, which are Xerox Copies cannot be marked, that the letters sought
to be marked does not depict who has written the letter and to whom the same
was written, that any written document could only be marked through the
author and that since there are no merits in the petitions, the same are liable to
be dismissed.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
6.The learned trial Judge, by observing that without accounting for the
primary evidence, Xerox Copies of the said documents cannot be received as
secondary evidence, that the petitioner has not chosen to examine her
husband's sister, who has allegedly written the said letters, that the petitioner
has not offered any explanation as to how she got those letters and that
therefore, the Xerox copies of the letters unconnected with the case cannot be
received as secondary evidence and in violation of the provisions of Sections
65 and 66 of the Indian Evidence Act, dismissed the petition.
7.The learned counsel for the revision petitioner would submit that the
trial Court has failed to consider and apply Sections 20 and 14 of the Family
Courts Act, that the Family Court is having power to receive any report,
statement, document, information or matter, if the same will assist the Court to
deal effectually with the dispute pending between the parties, that the
petitioner's husband could not be affected anyway and no prejudice would be
caused to him, if the said documents are admitted in evidence, that the learned
trial Judge has not assigned any valid reason for negativing the reliefs and that
the impugned order is cryptic in nature and a non speaking order.
8.Before entering into further discussion, it is necessary to refer
Sections 14 and 20 of the Family Courts Act.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
“Section 14. Application of Indian Evidence Act, 1872 – A
Family Court may receive as evidence any report, statement,
documents, information or matter that may, in its opinion, assist it
to deal effectually with a dispute whether or not the same wold be
otherwise relevant or admissible under the Indian Evidence Act,
1872 (1 of 1872).
Section 20. Act to have overriding effect. - The provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or
in any instrument having effect by virtue of any law other than
this Act.”
9.A cursory reading of Section 14 makes it clear that the intention of the
legislature is to permit the Family Court to receive as evidence any report,
statement, documents, information or matter, which are in its opinion, would
assist the Family Court, to deal effectually with a dispute irrespective of
whether the same would otherwise be relevant or admissible under the Indian
Evidence Act.
10. Section 20 of the said Act gives an overriding effect to the Family
Courts Act over the other enactments.
11. A cumulative reading of Sections 14 and 20 of the Family Courts
Act, clearly takes within its ambit the restricted applications of the provisions
of the Indian Evidence Act qua the documentary evidence which includes
electronic evidence, whether or not the same is relevant or admissible, if in the
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
opinion of the Family Court such evidence would assist the Family Court to
deal effectively with the matrimonial dispute.
12. Considering the above, it is clear that the Family Court is
empowered and vested with a wide discretion to take note of the evidence in
any form such as report, statement, documents, information or matter that may
be required to effectively deal with the real controversy in dispute.
13. To put it in other way, the technicalities of Indian Evidence Act
relating to admissibility or relevancy of evidence are not strictly applicable in
relation to a proceeding under the Family Courts Act touching the matrimonial
dispute. Section 14 of the said Act provides for exception to the general rule of
evidence regarding admissibility of documents. More over, there was no
embargo for the Family Court to accept and exhibit the documents as sought
for by the other side. No doubt, it is absolute power and authority of the
Family Court either to accept or disregard a particular evidence in finally
adjudicating the matrimonial dispute. But at the same time, a party would not
be prevented from placing some documents on records or such documents can
be refused to be exhibited unless they are proved, goes contrary to the object
of Section 14 of the Family Courts Act.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
14.It is settled law that the objection as to the admissibility of document
is classified in to two classes and the first classification is that the documents
to be proved is itself inadmissible and the second classification is as to the
mode of proof is insufficient. The approach of the Family Court is required to
be realistic and rational to the facts on hand rather than technical and narrow.
15. Bearing the above legal position in mind, let us consider the case on
hand. The petitioner has sought to mark the copies of two letters alleged to
have been written to her husband by his sister. No doubt, as rightly observed
by the learned trial Judge, the petitioner has not furnished the particulars as to
how the petitioner got the copies of the letters, but the learned counsel for the
revision petitioner would submit that those two letters were allegedly referring
the disputes that existed between the petitioner and the respondent and the
alleged cruelty committed by the husband against his wife and that therefore,
the letters will assist the Court to deal with the disputes effectively. The only
condition required to be considered is that whether the documents would assist
the Court to decide the matter effectually and that the Court need not consider
whether the document is admissible or not under the Evidence Act.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
16. In view of the mandate of Sections 14 and Section 20 of the Family
Courts Act, the trial Judge, if he is of the opinion that the documents produced
would assist the Court to deal with the matter effectually, then he has no other
option but to admit the same and thereafter, to see whether the document is
genuine and the contents of the same are true, since it is the bounden duty of
the parties to prove the genuineness of the documents as well as its contents.
Considering the above, this Court has no other option, but to hold that the
decision of the learned trial Judge in rejecting the reliefs is not good in law
and as such the same is liable to be set aside. The learned trial Judge is to be
directed that the documents in question be taken on record and that thereafter,
permitting the parties to prove the genuineness of the documents as well its
contents.
17.In the result, the Civil Revision Petitions are allowed and the
impugned order in I.A.Nos.3 of 2020, dismissing the petition and in
I.A.No.4 of 2020, partly dismissing the petition in H.M.O.P.No.94 of 2014,
dated 27.01.2021 on the file of the Family Court, Tiruchirappalli, are set aside.
The learned trial Judge is directed to receive the documents in evidence and to
decide the genuineness and truthfulness of the contents of documents at the
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
time of passing orders or judgment. No costs. Consequently, connected
Miscellaneous Petition is closed.
06.08.2021
Index : Yes/No
Internet : Yes/No
das
To
The Judge, Family Court,
Tiruchirappalli.
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).Nos.386&387 of 2021
K.MURALI SHANKAR, J.
das
CRP(PD)(MD).Nos.386 and 387 of 2021
and
CMP(MD)No.2114 of 2021
06.08.2021
https://www.mhc.tn.gov.in/judis/
