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2024 DIGILAW 706 (AP)

T. Sreekala v. Thimmaraju Hemadri Sharma

2024-06-26

B.S.BHANUMATHI

body2024
ORDER : B.S. Bhanumathi, J. 1. This revision is filed under Article 227 of the Constitution of India against the order, dated 20.03.2024, dismissing I.A. No.300 of 2023 in FCOP No. 18 of 2020 on the file of the Court of the Judge, Family Court-cum-VI Additional District Judge, Kadapa, filed by the respondent in main OP under Order XXVI Rule 10(2) CPC read with Section 65-B of the Indian Evidence Act, 1872, to appoint a commissioner to collect the C.C Camera video recordings in the respondent/petitioner's house bearing D.No.1/2582 for the past two months and examine the people around the house regarding the relationship of the petitioner and respondent and submit report to the Court. 2. Heard Sri M. Solomon Raju, learned counsel for the petitioner/wife and Sri A.Syam Sundar Reddy, learned counsel for the respondent/husband. 3. For the purpose of convenience, the parties are arrayed as husband and the wife. 4. The husband filed petition for divorce against his wife on the ground of cruelty. Pending the petition, I.A. No.300 of 2023 was filed by the wife averring that her husband had an illicit affair with Konkiri Alekya @ Nandini, wife of Yerraguntla Ashok since February, 2020 and they have been physically and mentally harassing the wife, children and finally necked her and her elder daughter out of the house, however, the husband and his concubine have been living in the house bearing D.No.1/2582, A.P Housing Board Colony, Dongalacheruvu, near Rajiv Park, Kadapa city. The wife further contended that on her application in I.A. No.209 of 2023, Konkiri Alekya was examined as RW5 and through her, a colour photograph was received in evidence as exhibit X1 and further Konkiri Alekya admitted before the Court that she was living in the house bearing D.No.1/1282 in A.P Housing Board Colony, near Rajiv Park, Kadapa city and the said house belongs to the husband (petitioner in the divorce OP). It is also stated by the wife that house bearing D.No.1/2582 is a duplex residential house and that Konkiri Alekya has been residing in the first floor and the husband is residing without wife in the 2nd floor of that house, and whereas, in a duplex house, it is not possible for residence of two families. Therefore, to prove her case, it is necessary to appoint the commissioner. Accordingly, she filed the above petition. 5. Therefore, to prove her case, it is necessary to appoint the commissioner. Accordingly, she filed the above petition. 5. The petition was opposed by filing counter of the husband stating that the reliefs cannot be granted under the provisions cited in the petition and further multiple reliefs are prayed in a single application and thus, the petition is not maintainable. It is further stated that the relief in the petition has an impact on the relief in the main petition which is filed seeking divorce on the ground of cruelty and that it is the burden of the husband to prove the ground taken, but it is not the burden of wife and therefore, the petition needs to be dismissed. It is also stated that CCTV kept in the premises pertaining to the house, where the husband has been residing, would not record the footage, and therefore, there is no backup and saving of the recordings and moreover, the relief is interfering with the right of privacy of the husband and violative of fundamental right and the application is abuse of process of law. The husband further stated that his parents have been residing in the 3rd and 4th floors of the house bearing D.No.1/2582 and also in the house bearing D.No.1/2512 and the husband has been using 1st and 2nd floors of the premises bearing D.No.1/2512 for his professional office and the ground floor of the premises bearing D.No.1/2512 is being used by the parents of the husband and also by the husband. He further stated that husband let out the premises bearing D.No.1/2582 both the ground floor for commercial purpose and the 1st floor for residential purpose under a registered lease deed. He denied the allegation that he has illicit affair with Konkiri Alekya. Further, it is stated that the petition is filed only to drag on the matter. He prayed to dismiss the petition. 6. After hearing both parties, the petition was dismissed holding that there is a vague prayer as to the person whom the commissioner has to examine and further that appointment of commissioner to collect the CC TV footages is a matter relating to privacy guaranteed by the Constitution though it does not mean that matrimonial affairs would effect the right of privacy. It further observed that it is for the husband to prove the ground of cruelty and it is not for the wife to establish the same. 7. Aggrieved by the same, this revision petition is filed. 8. The learned counsel for the petitioner/wife submitted that the trial Court erroneously dismissed the petition and that wife can establish the fact that her husband has illicit relationship with the person named in the petition to oppose grant of divorce. He further submitted that collection of CCTV footage does not amount to interference in the right of privacy and also that a commissioner can be appointed to record evidence of witness. 9. On the other hand, the learned counsel for the respondent submitted that the trial Court rightly dismissed the petition and there is no need to interfere with the order impugned as there is no apparent error or illegality in the order. 10. The relief claimed by the wife has two limbs; (a) to record the evidence of the persons; and (b) to collect the CCTV footage. (a) Insofar as recording of evidence is concerned, the wife failed to name the persons and moreover, she can choose to examine the witness before the Court. Therefore, this Court does not see any reason to interfere with the order of the trial Court in this regard. (b) Insofar as other limb of the relief, i.e., collection of CCTV footage is concerned, this Court is of the opinion that collection of CCTV footage does not amount to interference of right of privacy of a spouse. In this regard, it is apt to refer the decision of the High Court of Delhi in Sachin Arora Vs. Manju Arora, 2023 SCC Online Del 2692 wherein after an elaborate consideration of various decisions, it is rightly held that collection of CCTV footage does not amount to violation of right of privacy. Therefore, the observation of the trial Court contrary to the same is unsustainable. A party should be granted an opportunity to lead all that evidence required to prove the case of the party or to disprove the case of the opposite party. As such, subject to limitations of law regarding the mode of proof of evidence, it is necessary to appoint a commissioner for collection of CCTV footage as prayed for or else, the wife would be prevented from placing evidence in support of her case. As such, subject to limitations of law regarding the mode of proof of evidence, it is necessary to appoint a commissioner for collection of CCTV footage as prayed for or else, the wife would be prevented from placing evidence in support of her case. Merely because, the husband has to prove the ground of cruelty, it does not mean that there is no onus of proof on the wife, in case, when the onus shifts on to her. Therefore, the observation of the trial Court that it is the burden of the husband to prove his case and therefore, there is no need to grant the relief to the petitioner is unsustainable. The trial Court failed to properly exercise its jurisdiction, and therefore, the order impugned is required to be interfered with partly insofar as appointment of commissioner for the purpose of collection of CCTV footage is concerned. 11. In the result, the Civil Revision Petition is partly allowed granting the relief of appointing a commissioner insofar as collection of CCTV footage and recordings in the house bearing D.No.1/2582 of the respondent/petitioner situated at Andhra Pradesh Housing Board Colony, Dongalacheruvu, near Rajiv Park, Yerrakkapalli post, Kadapa city. The rest of the relief sought for is dismissed. The trial Court shall appoint a commissioner for the above said purpose and fix his/her fee. The commissioner shall take all necessary precautions in collecting the same for admission in evidence as per law. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.