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2019 Supreme(Guj) 711
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. Thaker, J.
Apurva Jagdishbhai Dave - Appellants
Vs.
Prapti Apurva Dave - Respondent
R/Special Civil Application Nos. 3162 and 17621 of 2018
Decided On : 25-10-2019
For the Appellant : Jayant P. Bhatt and Jeet J. Bhatt
Point of Law
If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act.
Headnote:
Constitution of India, Articles 226 and 227 – Challenging the legality, validity and propriety of the impugned order whereby the prayer of the petitioner for custody of the daughter Harishree has been rejected by the Trial Court – Held, Petitioner has not led any evidence and his right for leading the evidence has already been closed. Under that circumstances, in absence of the evidence led by the petitioner, the Trial Court has passed the impugned order rejecting the application which cannot be said to be perverse one and parties do not chose to led evidence. In such case, if the application is rejected, the party cannot blame or raise any issue at later stage. Therefore, so far as Special Civil Application No. 17621 of 2018 is concerned, it is devoid of merits – Trial Court is directed to take on record the electronic record and after proper verification, it could be exhibited. The Court may, if required, call for other side for further cross-examination (Paras 9,11)
Facts of the Case:
Respondent - wife has lodged the complaint stating that the petitioner and his father had beaten the child in the garden and, at that time, the petitioner has full details of the incident to the police personnel and also showed the mobile recording to them. As such, Mahila Police has asked the petitioner to record the statement. He has contended that, thereafter, the petitioner was constrained to make an application against the respondent as she had threatened to file the false criminal case under Section 498A of the Indian Penal Code – There is dispute between the husband and wife and due to arrogant nature of the wife, the dispute has arisen and though there was direction of visitation right to the husband, she is not allowing the husband to meet the minor daughter.
Finding of the Court:
Petitioner has not led any evidence and his right for leading the evidence has already been closed. Under that circumstances, in absence of the evidence led by the petitioner, the Trial Court has passed the impugned order rejecting the application which cannot be said to be perverse one and parties do not chose to led evidence. In such case, if the application is rejected, the party cannot blame or raise any issue at later stage. Therefore, so far as Special Civil Application No. 17621 of 2018 is concerned, it is devoid of merits – Trial Court is directed to take on record the electronic record and after proper verification, it could be exhibited. The Court may, if required, call for other side for further cross-examination.
Result: Appeal of custody dismissed
JUDGMENT :
A.P. Thaker, J.
1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India challenging the legality, validity and propriety of the impugned order dated 06.01.2018 passed by the learned Principal Judge, Family Court, Gandhinagar (hereinafter be referred to as "the Trial Court") below application at Exhibit 51 filed by the petitioner in Hindu Marriage Petition No. 166 of 2001.
2. The brief facts of the present petition, in nutshell, are as under:-
2.1 The petitioner had made an application at Exhibit 38 in Hindu Marriage Petition No. 166 of 2013 wherein the petitioner wanted to play CD produced by the petitioner in the list of documents attached with Hindu Marriage Petition under Section 13 of the Hindu Marriage Act (hereinafter be referred to as "the Act") with CD contained recording of the respondent with the petitioner and his father had gone to garden in Sector 7, Gandhinagar to meet his child who born out of the wedlock of the petitioner and the respondent.
2.2 While narrating fact of that day, it is contended that on that day, Mahila Police came and he was told that in Mahila Police Station, as the respondent - wife has lodged the complaint stating that the petitioner and his father had beaten the child in the garden and, at that time, the petitioner has full details of the incident to the police personnel and also showed the mobile recording to them. As such, Mahila Police has asked the petitioner to record the statement. He has contended that, thereafter, the petitioner was constrained to make an application against the respondent as she had threatened to file the false criminal case under Section 498A of the Indian Penal Code. The petitioner has contended that he has to file an application in the custody application for modification of the order to meet the child at Mahila Police Station instead of Sector 7 Garden, in order to avoid the respondent from harming the petitioner and his father. It is his contention that he had produced CD along with transcript in the custody application on 15.09.2014. It is contended that the respondent has never raised any dispute regarding the said CD and never questioned the authenticity of the said recording. However, now the CD can be sent to the Forensic Science Laboratory for scientific examination. He has contended that as the recording shows the misbehave of the respondent, she is trying to create unnecessary tactics to delay the trial and in not getting the CD during the pendency of the suit before the Family Court. He has also contended that in both the matters i.e. Hindu Marriage Petition and custody case, the CD has been produced by the petitioner and the copy thereof has been handed over the respondent, but there was no objection raised by the respondent.
2.3 It is contended that during examination-in-chief before the Family Court in Hindu Marriage Petition, the respondent - wife has not disputed the contents of the CD of the petitioner and she has nowhere mentioned that the CD is false and fabricated. It is his contention that during the cross-examination of the respondent, learned advocate for the petitioner was asked the question regarding the incident of 07.09.2014 and at that time, she denied having happening of such incident. As such, the petitioner wanted to play the CD in the proceedings of the Court and asked the question to the respondent either to controvert or to admit the incident of 07.09.2014 and also asked the respondent whether it was her voice or not. It is contended that in order to play the CD, the petitioner has made an application at Exhibit 38 on 16.11.2016. It is contended that the respondent has raised the objection with regard to play of the CD in the Family Court and she has filed the reply wherein she disputed the contents of the recording and stated that no such incident had occurred on 07.09.2014 and after hearing both the parties, the Court has rejected the application at Exhibit 38 vide order dated 02.
