1. Parties are wife and husband. The Petition for divorce between the parties and other ancillary reliefs is pending trial. The wife, who is the Petitioner, is under cross-examination. The husband relies upon certain handwritten diaries of the wife as well as Compact Disk (CD) on which conversation between the wife and the husband has been recorded by the husband on certain dates. The husband has produced the transcript of the said conversation. The husband has applied for verification of the handwriting of his wife in the diaries and the voice of the wife in the taped conversation on the CDs. The wife admits the handwriting in her diaries. That can be produced in evidence. Hence the husband does not press the relief in that behalf. Aside from the diary, there is one line written by the wife on a certain menu of her catering service which is also admitted by the wife.

2. The parties are at dispute with regard to the taped conversation on the CDs. The husband has not yet filed his affidavit of documents. He has, therefore, not relied upon any specific document. The husband has, however, served upon the wife inter alia the CDs as well as the transcript. These are the documents referred to by the husband in paragraph 22 of his written statement. The reference runs thus:

“On several occasions thereafter the Defendant had occasion to record the Plaintiff's conversation where she has told the Defendant to leave her father’s house, as she wanted a divorce.”

It is contended on behalf of the wife that the taped conversation is not relied upon as a document. It is not referred to as a document and hence the husband cannot use it as a document in evidence. It is also contended by the wife that the affidavit of documents is not filed and the instrument on which the initial conversation was recorded is not produced. The husband could have recorded it on a tape recorder, audio cassette, MP3 player, Dictaphone, computer or even on his mobile phone. That recording is not produced and inspection of that recording is not given and hence the wife contends that the CD and the transcript cannot be used by the husband.

3. The wife has neither admitted nor denied the conversation. The husband seeks to use it in her cross-examination.

4. The elementary principle of recording evidence must be first considered. Evidence consists of examination-in-chief and cross-examination. A party is required to offer for inspection and produce the documents relied upon by him in support of his case. This is required in his examination-in-chief. This contains the oral and documentary evidence.

5. Order VII Rule 14 of the Civil Procedure Code (CPC) deals with the documents of the Plaintiff and Order VIII Rule 1-A of the CPC with regard to the documents of the Defendant. The aforesaid orders and rules run thus:

“14. Production of document on which plaintiff sues or relies. (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff’s witnesses, or handed over to a witness merely to refresh his memory.”

“1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.- (1) Where the defendant bases his defen