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2020 DIGILAW 2097 (KAR)

Amaresh v. Suvarna

2020-10-21

B.M.SHYAM PRASAD

body2020
JUDGMENT B. M. Shyam Prasad, J. - The learned Counsel for the petitioner and the learned Counsel for the respondent are heard, and the impugned order dated 21.03.2020 in Crl. Misc. No.317/2016 on the file of the II Additional Principal Judge, Family Court, Bengaluru [for short Family Court ] is perused. The Family Court by the impugned order has rejected the petitioner s application under Section 65 of the Indian Evidence Act, 1872 read with Section 151 of the Civil Procedure Code, 1908 for production of certified copies of the pleadings in certain prior proceedings as mentioned hereinafter. 2. The respondent has filed her application in Crl. Misc. No.317/2016 under Section 125 of the Criminal Procedure Code, 1973 [for short Cr.P.C.] for maintenance asserting inter alia that the petitioner, her husband who is duty bound to provide for her maintenance, has failed to do so. The petitioner has resisted the petition contending that because of certain prior proceedings inter se respondent/her family members and his family members and him, his mother has executed her last Will and Testament bequeathing in respondent s favour life interest in two commercial shops in New Tharagupet, Bengaluru apart from permitting the respondent to occupy, without any cost, one of the premises in the first floor of the property owned absolutely by her. These measures are intended to ensure that there is proper arrangement for the respondent s maintenance. The petitioner s mother is no more and these measures are irrevocably settled in favour of the respondent. The respondent, despite these measures, has initiated the present proceedings under Section 125 of Cr.P.C. after a long lapse of time. 3. The respondent has completed her evidence and the petitioner has filed his affidavit in lieu of his chief examination. It is at this point of time that the petitioner has filed the present application seeking leave to produce the following certain, and one of the documents is an Endorsement issued by the Civil Court stating that the records in Criminal Misc. No.1064/2006 have been destroyed on 21.11.2020. [a] Certified copy of endorsement in Crl. Misc. No.1064/2006. [b] Copy of Petition in Crl. Misc. No.1064/2006. [c] Copy of objection of respondent in Crl. Misc. No.1064/2006. [d] Copy of the Order sheet along with interim order in Crl. Misc. No.1064/2006. No.1064/2006 have been destroyed on 21.11.2020. [a] Certified copy of endorsement in Crl. Misc. No.1064/2006. [b] Copy of Petition in Crl. Misc. No.1064/2006. [c] Copy of objection of respondent in Crl. Misc. No.1064/2006. [d] Copy of the Order sheet along with interim order in Crl. Misc. No.1064/2006. [e] Copy of plaint copy in O.S. No.10447/1992 [f] Copy of the Judgment and Decree in O.S. No.10447/1992 dated 6.6.1998 [g] Copy of the order on I.A. I and II in O.S. No.3431/1992 4. The Family Court while rejecting the petitioner s application for production of these documents as secondary evidence has observed that the petitioner has filed this application when the matter is posted for his evidence as a last chance. On merits, the Family Court has opined that the application cannot be entertained because the petitioner has not explained how the Endorsement issued by the Civil Court as regards the destruction of records in O.S. No.3431/19921 would be relevant to explain the petitioner s obligation to maintain the respondent. 5. The learned Counsel for the petitioner is categorical that the petitioner has filed the application to place on record certified copies of the prior proceedings and only insofar as pleadings in Criminal Misc. No.1064/2006, 1 There must be an error in mentioning the proceedings number because the petition averments and the list of documents filed before the Family Court refers to the Endorsement relating to the records of Criminal Misc. No.1064/2006. secondary evidence by way of photocopies supported by the endorsement issued by the Civil Court is filed. These documents would be material to the petitioner s defence that the certain arrangements are made for the petitioner s maintenance because of prior proceedings and the petition is filed belatedly. 6. The Family Court has not discussed about any document except the Endorsement issued about the destruction of the records in Criminal Misc. No.1064/2006. The petitioner in his examination-in-chief, which is enclosed to the petition as Annexure-E, has detailed the circumstances which, according to him, make the pleadings in the previous proceedings, including the pleadings in Criminal Misc. No.1064/2006, relevant. Though the Family Court has extracted the provisions of Section 65-C of the Evidence Act, the merits of the application is not tested as against the requirements of the provisions. It is settled that secondary evidence can be placed on record provided the foundational facts necessary to place such record is established. No.1064/2006, relevant. Though the Family Court has extracted the provisions of Section 65-C of the Evidence Act, the merits of the application is not tested as against the requirements of the provisions. It is settled that secondary evidence can be placed on record provided the foundational facts necessary to place such record is established. If the original is destroyed, and such if destruction is not attributable to the petitioner that would be a foundational circumstance that could justify production of secondary evidence. 7. This Court in the facts and circumstances of the case is of the considered view that the Family Court should have allowed the application permitting the petitioner to produce the documents subject to the petitioner explaining and establishing its relevance and probative value. It is clarified that in allowing this application, this Court has not expressed its opinion either on the relevance or the probative value of these documents and these will have to be considered by the Family Court at the appropriate stage in accordance with law. 8. The learned counsel submits that the respondent s petition under Section 125 of Cr.P.C. has been pending for the last five years and there is no order for interim maintenance to the respondent. Therefore, it would be just and reasonable to expedite the decision on merits with liberty to the respondent to file an application for grant of interim maintenance if so advised. Therefore the following: ORDER [a] The writ petition is allowed-in-part. [b] The impugned order dated 21.03.2020 in Crl. Misc. No.317/2016 on the file of the II Additional Principal Judge, Family Court, Bengaluru is set aside. [c] The application in I.A. No.VI is allowed. The petitioner is permitted to produce certified copies of the pleadings in Crl. Misc. No.1064/2006, O.S. No.10447/1992 and O.S. No.3431/1992 as stated in the application along with the endorsement insofar as Crl. Misc. No.1064/2006. [d] The Family Court is called upon to expedite the decision in the matter and preferably within an outer limit of five months from the date of receipt of this order.