The admissibility of electronic records and secondary evidence under the Indian Evidence Act, and the procedure for considering objections and deciding admissibility at the final stage in the final judgment.

The respondent in HMOP No. 96 of 2004 on the file of Sub Court, Mettur, is the revision petitioner herein. The said HMOP was filed for dissolution of marriage by the respondent herein. In the said HMOP, I.A. No. 70 of 2007 was filed by the respondent herein to receive the audio CD, which was allowed by order dated 21.07.2007, which is questioned in this revision petition.

2. Mr. S.V. Jayaraman, learned senior counsel appearing for the counsel for the revision petitioner submitted that the respondents case is that the petitioner abused in filthy language and threatened the respondent in his cell phone which was recorded in it and re-recorded in audio CD, if so, the cell phone of the respondent could be marked, but the same is not done and produced only the audio CD, which is not a primary evidence; that the audio CD is fabricated one and inadmissible, which was ordered to be taken into evidence by the trial court, hence, the same is liable to be set aside. In support of his contention, the learned senior counsel relied on the decision (J. Yashoda vs. K. Shobha Rani) 2007 (4) TNLJ 228 (Civil) wherein the Honourable Supreme Court held thus:-

“8. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstance mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the content of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madhavlal Dube and Another (1975 (4) SCC 664), it was inter alia held as follows:-

“After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person or of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clause (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent NO.1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent no.1 denies that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his application. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the p