A party cannot introduce documents for cross-examination without prior pleading, and electronic evidence must meet admissibility criteria under Section 65B of the Evidence Act.

ORDER :

Arun R. Pedneker, J.

Heard Mr. S.B. Solanke, learned counsel for the petitioner.

2. By way of present writ petition, the petitioner is challenging the impugned orders dated 25.10.2023 and 23.1.2024 passed by the learned Judge, Family Court, Osmanabad, below Exhs. 52 and 55, respectively in Petition No. A-216/2021 filed by the petitioner for divorce.

3. The divorce petition is at the stage of the evidence of the respondent/wife. During the cross examination of the respondent/wife, the petitioner/husband wanted to show a video clip to the respondent/wife and therefore, the application at Exh. 52 was filed by the petitioner for production of the electronic record i.e. pen drive. The said application was rejected by the Family Court vide order dated 25.10.2023 by observing that the contents of the pen-drive were nowhere pleaded by the petitioner and the said evidence is without pleading.

4. Again the petitioner approached the Family Court by filing application below Exh. 55 with a specific prayer that the petitioner may be permitted to show a video recording from the pen drive to refresh the memory of the witness and ask further questions to the respondent/wife during her cross examination. The said application was again rejected by the Family Court for the same reason. Hence, the present writ petition is filed to challenge the above impugned orders at Exhs. 52 and 55.

5. In paragraphs Nos. 11 and 12 of the impugned order, dated 25.10.2023 the Trial Court has held as under :-

"11. The petitioner in person is cross-examining the respondent. During cross-examination, he has suggested the respondent that she was repeatedly giving threats of suicide to the petitioner, she told him during discussion that she was saying to do suicide under tension and he prepared video of discussion with the consent of her. Said suggestions are clearly denied by the respondent. She denied of giving threats of suicide to the petitioner. She flatly denied of saying the petitioner of giving threats under tension. Further, flatly denied of making video by the petitioner about their discussion with her consent.

12. The petitioner wants to produce pen-drive during cross-examination of the respondent and wants to confront contents in it from the respondent. As there are no pleadings in Exh. 1 as well as no such evidence by the petitioner, the contents in pen-drive are surprising on the part of the respondent. The petitioner has smartly avoided evidence about audio and video clips of conversation between him and the respondent and thereby avoided the cross-examination on that point at the hands of advocate of the respondent. Further, he has cleverly avoided to examine his close friend Shailesh Ayanile and bring on record that the data sent by the petitioner to his Laptop is missing. Thereby, the respondent lost opportunity to cross-examine to the petitioner and his witness on the point of audio and video clips. At the flag end of the trial the petitioner is trying to bring on record the evidence which is surprising on the part of the respondent and that too without pleadings. The petitioner is trying to shift his burden of proving his case on the shoulder of the respondent. It is not expected to prove the evidence, without pleading, from the mouth of the respondent. As the respondent is denying of making video clips of conversation between her and the petitioner about giving threats of suicide under tension, it is not just and proper to allow production."

6. As regards, Exh. 55, the Family Court held that it has already decided Exh. 52 and the order at Exh. 52 covers the issue of Exh. 55 and dismissed the same.

7. The law on production of the document directly at the stage of cross examination is considered by the judgment of this Court with reference to Order VII, Rule 14 (4), Order VIII, Rule 1-A (4)(a) and Order XIII, Rule 1(3) of C.P.C.. Before I deal with the judgments of this Court and Hon'ble Supreme Court, for ready reference, the above provisions are qu