Madras High Court
P.Indhumathi vs S.Hariharan on 23 June, 2022
C.R.P. (PD) No.1545 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
C.R.P. (PD) No.1545 of 2022
and
C.M.P.No. 7816 of 2022
P.Indhumathi,
D/o.Periyasamy ... Petitioner
Versus
1. S.Hariharan,
S/o. Chiththan
2. G.Ilayaraja,
S/o. Ganesan ... Respondents
Prayer:- Civil Revision Petition has been filed under Art. 227 of
Constitution of India, praying to set aside the fair ad decreetal order dated
23.02.2022 in I.A.No.2 of 2021 in H.M.O.P. No. 34 of 2019 on the file of
Family Court, Salem.
1/7
https://www.mhc.tn.gov.in/judis
C.R.P. (PD) No.1545 of 2022
For Petitioner : Mr.K.Selvaraj
For Respondents : Mr. R.Marudhachalamurthy for R1
R2 – No appearance
ORDER
This Civil Revision Petition has been preferred challenging the order
of learned Family Court Judge, Salem dated 23.02.2022 in I.A.No. 2 of
2021 in H.M.O.P. No.34 of 2019.
2. The Revision Petitioner is wife of 1st respondent. The 1st respondent
husband had filed a petition in H.M.O.P.No. 34 of 2019 for dissolution of
marriage on the ground of adultery. Pending the proceedings, he has filed an
Interlocutary Application in I.A. No.2 of 2021 by stating that he has
recorded the whatsapp messages between his wife and the other respondent
and filed a CD along with printed copy of the above message and the same
was received as evidence by the lower court. Aggrieved over that, the
present Civil Revision Petition has been filed.
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C.R.P. (PD) No.1545 of 2022
3. The learned counsel appearing for petitioner submitted that the
evidence produced by the 1st respondent is not in terms of Sec.65-B of
Evidence Act, which stipulates the conditions to receive electronic
evidence. The learned counsel for petitioner further submitted that the
whatsapp messages alleged by the 1st respondent were not downloaded from
either of the cell phone, the Revision Petitioner or the 2nd respondent, but he
claimed that he had extracted those messages by using an app called
Whatscan and hence, it is not admissible in evidence. The learned counsel
further submitted that the genuineness of document cannot be tested before
adducing its admissibility and the relevancy and the authenticity of
document also cannot be tested before adducing its admissibility.
4. The attention of this Court was drawn to the judgment of Hon'ble
Supreme Court of India rendered in 2014 (10) SCC 473. In the said
judgment, in para 24, the Apex Court has held as follows :-
“24. The situation would have been different had the appellant
adduced primary evidence, by making available in evidence,
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C.R.P. (PD) No.1545 of 2022
the CDs used for announcement and songs. Had those CDs
used for objectionable songs or announcements been duly got
seized through the police or Election Commission and had the
same been used as primary evidence, the High Court could
have played the same in court to see whether the allegations
were true. That is not the situation in this case. The speeches,
songs and announcements were recorded using other
instruments and by feeding them into a computer, CDs were
made therefrom which were produced in court, without due
certification. Those CDs cannot be admitted in evidence since
the mandatory requirements of Section 65-B of the Evidence
Act are not satisfied. It is clarified that notwithstanding what
we have stated herein in the preceding paragraphs on the
secondary evidence of electronic record with reference to
Sections 59, 65-A and 65-B of the Evidence Act, if an
electronic record as such is used as primary evidence (under
Section 62 of the Evidence Act), the same is admissible in
evidence, without compliance with the conditions in Sec.65-B
of the Evidence Act.”
4. The very contention of the 1st respondent while producing the CD
is that he had extracted the whatsapp messages of the Revision Petitioner
and the 2nd respondent by using his own phone. The messages extracted by
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C.R.P. (PD) No.1545 of 2022
the 1st respondent is very much available in his phone and he had taken
series of messages and produced the same before the court by stating that
the same was taken by him through his phone by using a special application.
5. In the judgment of Hon'ble Supreme Court, it is specified that
speeches, songs and announcement which were recorded using other
instruments by feeding them into a computer, CDs due certification should
be given under Sec.65-B of Evidence Act. But, in the case in hand, CDs
were made from the cellphone of the 1st respondent himself and he did not
transmit the messages to any other instrument or CDs were not taken by
using any computer. If the messages shown by the 1st respondent are not
true or if his statement that he downloaded those messages directly from his
phone is not true, those facts can be confronted to him during his
examination. When the 1st respondent has stated that he had downloaded the
messages through an App by using his cellphone, and he has filed an
affidavit to that effect, that itself might amount to a certificate as
contemplated under Sec.65-B of Evidence Act. The contentious issues
relating to the authenticity and genuineness of the app or the truth about the
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C.R.P. (PD) No.1545 of 2022
contents downloaded cannot be raised at the stage of just receiving them.
Hence, I find no ground for interference.
6. In the result, this Civil Revision Petition stands dismissed and the
order dated 23.02.2022 passed in I.A.No.2 of 2021 in H.M.O.P. No. 34 of
2019 on the file of Family Court, Salem is confirmed. Consequently, the
connected Civil Miscellaneous Petition is closed.
23.06.2022
rpp
To
Family Court Judge,
Salem.
https://www.mhc.tn.gov.in/judis
C.R.P. (PD) No.1545 of 2022
R.N.MANJULA, J.
rpp
C.R.P. (PD) No.1545 of 2022
23.06.2022
https://www.mhc.tn.gov.in/judis
