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2018 DIGILAW 3941 (MAD)

N. Magesh v. Suganthi

2018-10-25

P.T.ASHA

body2018
JUDGMENT P.T. Asha, J. C.R.P.(Pd).Nos.2019 and 2020 of 2010 have been filed challenging the order passed by the learned Sub Judge, Bhavani, in I.A.Nos.87 and 88 of 2009 in H.M.O.P.No.18 of 2007 which are applications filed to reopen the HMOP for filing further documentary evidence and to recall P.W.1 to give further evidence and produce documentary evidence, respectively. 2. Since the contents of the affidavit and counter in both the applications are big and large and the similar order in I.A.No.88 of 2009 was consequential order pursuant to the order in I.A.No.87 of 2009, this Court is pronouncing a Common Order in both the revisions. The brief resume of the facts necessary to dispose of the revision are as follows: 3. The revision petitioner, who is the husband, had filed H.M.O.P.No.18 of 2007 on the file of the learned Sub Judge, Bhavani, seeking divorce from his wife, the respondent herein. The allegations in the main petition are as follows: (a) The respondent was disrespectful to the petitioner. (b) The respondent would frequently leave her matrimonial home and stay at her parents house. (c) The respondent did not show any love or affection to the petitioner. (d) The factum of her pregnancy was not immediately intimated, but informed only five months later. (e) The respondent had suffered an abortion with reference to the second child. (f) The respondent was in the habit of receiving phone calls from several men. (g) Whenever the petitioner attempted to make phone calls, there was no response from her. (h) The petitioner had contracted venereal disease and D.W.1 told him that he had contracted the disease only by reason of the physical intimacy which his wife was having several men. (i) Despite several attempts to mediate, all attempts ended in failure. (j) The respondent had started living separately. 4. The respondent herein had filed a counter denying the various allegations stated in the petition and contending that she had been subjected to several cruelty both physically and mentally at the hands of the petitioner and more particularly, his mother, who was living along with them. She would contend that the mother-in-law was angry with her because she had not brought the dowry as demanded by the petitioner and his mother. She would contend that the mother-in-law was angry with her because she had not brought the dowry as demanded by the petitioner and his mother. She would also contend that despite her informing the husband, namely, the petitioner herein about her pregnancy, the petitioner had not come to visit her and even after birth of the son, he did not immediately come to see the child. Only after three months, he had come to visit the child and he had taken back the child and mother only after nine months. In fact, when she was pregnant, the petitioner and his mother had gone to the Doctor to clarify as to whether her pregnancy was a natural one which has caused immense mental agony and anguish to the respondent. After the abortion of the second child, she had gone to her parents house for re-equipping and despite several attempts to send her back, the petitioner was not willing to take her back. After the evidence of both the parties were concluded and the matter was posted for arguments, the petitioner had come forward with the above petitions subject matter of the revision petitions. 5. The reason given in the affidavit for taking out the impugned petition is as follows: "2.I filed the main petition for divorce against my wife/respondent. After both side witnesses, the main petition stand posted today for arguments. I was examined as PW1. I submit that to substantiate my case, I have to necessarily mark some vital documents regarding the illicit intimacy of the respondent. The typed copy of the conversation taken through a mini tape recorder between me and the doctor who treated the respondent will certainly prove the illicit intimacy of the respondent and it is very relevant to be adduced. Therefore, to mark some more vital documentary evidence on my side and to give further evidence, it is necessary to re-open the case. 6. Therefore, the only ground for filing these applications is the recorded conversation between the petitioner and the Doctor, who treated the respondent herein through which the illicit intimacy of the respondent was sought to be proved. 7. 6. Therefore, the only ground for filing these applications is the recorded conversation between the petitioner and the Doctor, who treated the respondent herein through which the illicit intimacy of the respondent was sought to be proved. 7. The respondent herein resisted the above application by stating that this conversation, which is now sought to be marked and of which there is no reference either in the pleadings or in the evidence of P.W.1, is a fabricated recording and therefore, it should not be marked. The affidavit does not also contain any detail as to the person, who has recorded these conversations and how the conversations came to be recorded. Further, the application is being moved at a time, when evidence were concluded and the matter was posted for arguments. Therefore, the petition requires to be dismissed. 8. The learned Sub Judge, passed a detailed order in I.A.No.87 of 2009 after hearing both the parties, dismissing the application by observing that the allegations which have been made in the affidavit filed in support of the petition does not refer to this alleged conversation between the petitioner and the respondent's Doctor and even in his evidence as PW1, there is no reference to this conversation. The petition is totally bereft of any details with reference to the person to whom the respondent is alleged to have an intimacy in the conversation. This is the factum which can be proved by examining the witness, who has been privy to this conversation. As a result of the order in I.A.No.87 of 2009, the petition in I.A.No.88 of 2009 was also dismissed as that application is depended on I.A.No.87 of 2009. It is aggrieved by this order that the revision petition is before this Court. 9. Mr.N.Manokaran, learned counsel appearing on behalf of the petitioner would submit that the petitioner/husband has in his evidence clearly stated the reasons for moving this application. Section 65B of the Indian Evidence Act provides the manner in which an electronic evidence can be marked. He would further contend that the learned Judge has simply proceeded to dismiss the applications on the ground that it is posted for trial and therefore, cannot be entertained. Section 65B of the Indian Evidence Act provides the manner in which an electronic evidence can be marked. He would further contend that the learned Judge has simply proceeded to dismiss the applications on the ground that it is posted for trial and therefore, cannot be entertained. He would further submit that in his petition, he has clearly narrated about the illicit intimacy that the respondent has with several persons and even in her cross examination as DW1, the respondent would admit that she has admitted her book and diary with several phone numbers. 10. The learned counsel would also rely upon the Judgments reported in [K.K. Velusamy v. N.Palanisamy, (2011) 11 SCC 275 ] and [Sonu Alias Amar v. State of Haryana, (2017) 8 SCC 570 ], wherein the Hon'ble Supreme Court has held that the party can be permitted to produce any evidence at any stage even after the conclusion of the evidence, if the Court is satisfied that despite exercise of due diligence, the evidence could not be produced by person seeking to produce the evidence and though this express provision in order XVIII Rule 17(A) has been deleted with effect from 01.07.2002 however, this Court can exercise of its inherent power under Section 151 of the Code of Civil Procedure and allow such an application. Ultimately, the Hon'ble Supreme Court has held in the interest of justice and in order to prevent abuse of process of Court, the trial Court therein could have considered as to whether it was necessary to reopen the evidence and if so, to what extent the evidence permitted to be exercised. The next Judgment relied on by him is one reported in [Sonu Alias Amar v. State of Haryana, (2017) 8 SCC 570 ] which has considered the role of electronic records in criminal investigation and the provisions contained in Section 65B of the Evidence Act. 11. Per contra, Mr.J.Prithivi, learned counsel appearing on behalf of the respondent would submit that the document now sought to be marked is contrary to the pleadings and highly belated one and an attempt to fill up the lacunae. 11. Per contra, Mr.J.Prithivi, learned counsel appearing on behalf of the respondent would submit that the document now sought to be marked is contrary to the pleadings and highly belated one and an attempt to fill up the lacunae. She would rely on the Judgment reported in [Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473 ], where the Hon'ble Supreme Court had discussed in detail the manner in which the provisions of Section 65B of the Evidence Act have to be interpreted and the conditions that have to be complied with before invoking the provisions of Section 65B. 12. Heard the submissions of the learned counsel on either side and perused the material available on record. 13. Although the main thrust of arguments on either side was on the admissibility of an electronic evidence namely, a voice recording on a tape recorder, the same may not have much application to the facts. The above observation is made for the following reasons: The petitioner in his pleadings before the Family Court has made a statement to the effect that when he had contracted the venereal disease and he had approached Doctor, the Doctor had opined that it could be on account the conduct of his wife in having physical intimacy with different men. This is not reiterated in the oral evidence, whereas in the affidavit filed in support of the applications subject matter of the revision, the revision petitioner is seeking to produce a tape recorded conversation which he has had with the Doctor, who is speaking about the character of the respondent. It is not known as to how such a document, which is a conversation toughing on the character of a person in her absence, can be marked by way of a tape recorded voice without putting the person making such a conversation into the box and subjecting him to cross examination. There is no dispute with reference to the power of the Court to receive an electronic recorded conversation but when the same can be proved by oral examination of the person concerned, there is no necessity to mark a recorded conversation. Further, the affidavit does not contain any details about the Doctor with whom the petitioner had the conversation except for stating that he is the Doctor of the respondent. The name and other particulars of the Doctor has also not been given. 14. Further, the affidavit does not contain any details about the Doctor with whom the petitioner had the conversation except for stating that he is the Doctor of the respondent. The name and other particulars of the Doctor has also not been given. 14. In his pleadings, the petitioner had stated that the Doctor had opined that he could have contracted the ailment on account of his wife's loose living. The context in which such a statement has been made should be looked into and for this purpose, the person making the statement has to be subjected to cross examination. 15. Be that as it may, the recorded evidence which is likely to amount to character assassination cannot be permitted to be marked except by putting the person making such a statement into the witness box and subjecting him to cross examination. The learned Sub Judge has rightly held that the statement made in the affidavit filed in support of the impugned petition is totally contrary to the pleadings and the evidence. I find no infirmity in the order passed by the learned Sub Judge, Bhavani. In the result, this Civil Revision Petition is dismissed. There shall be no order as to costs.