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2018 Supreme(Mad) 3166
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
N. Magesh - Appellant
Vs.
Suganthi - Respondent
Civil Revision Petition (Pd) No. 2019 of 2010, 2020 of 2010
Decided On : 25-10-2018
N. Manokaran, Adv., J. Prithivi, Adv., S. Kaithamalai Kumaran, Adv.
The admissibility of electronic evidence in court proceedings and the necessity for such evidence to be consistent with pleadings and subjected to proper cross-examination.
Headnote:
Electronic Evidence - Divorce Proceedings - Section 65B of the Indian Evidence Act - [SUMMARY OF ACT SECTIONS REFERENCED AND DISCUSSED]
Fact of the Case:
The husband filed for divorce, alleging various instances of misconduct by the wife. After the evidence was concluded and the matter was posted for arguments, the husband filed applications to reopen the case for filing further documentary evidence and to recall a witness to give further evidence.
Finding of the Court:
The court dismissed the applications, stating that the recorded evidence sought to be produced was contrary to the pleadings and the evidence, and that it amounted to character assassination without proper cross-examination.
Issues: Admissibility of electronic evidence in divorce proceedings, relevance of recorded evidence to the pleadings and evidence presented, and the necessity for proper cross-examination.
Ratio Decidendi: The court held that the recorded evidence sought to be produced could not be permitted without putting the person making the statement into the witness box and subjecting him to cross-examination. The court also emphasized the importance of evidence being consistent with the pleadings and oral evidence.
Final Decision: The Civil Revision Petition was dismissed, and no costs were awarded.
P.T. Asha, J.
C.R.P.(Pd).Nos.2019 and 2020 of 2010 have been filed challenging the order passed by the learned Sub Judge, Bhavani, in I.A.Nos.87 and 88 of 2009 in H.M.O.P.No.18 of 2007 which are applications filed to reopen the HMOP for filing further documentary evidence and to recall P.W.1 to give further evidence and produce documentary evidence, respectively.
2. Since the contents of the affidavit and counter in both the applications are big and large and the similar order in I.A.No.88 of 2009 was consequential order pursuant to the order in I.A.No.87 of 2009, this Court is pronouncing a Common Order in both the revisions.
The brief resume of the facts necessary to dispose of the revision are as follows:
3. The revision petitioner, who is the husband, had filed H.M.O.P.No.18 of 2007 on the file of the learned Sub Judge, Bhavani, seeking divorce from his wife, the respondent herein. The allegations in the main petition are as follows:
(a) The respondent was disrespectful to the petitioner.
(b) The respondent would frequently leave her matrimonial home and stay at her parents house.
(c) The respondent did not show any love or affection to the petitioner.
(d) The factum of her pregnancy was not immediately intimated, but informed only five months later.
(e) The respondent had suffered an abortion with reference to the second child.
(f) The respondent was in the habit of receiving phone calls from several men.
(g) Whenever the petitioner attempted to make phone calls, there was no response from her.
(h) The petitioner had contracted venereal disease and D.W.1 told him that he had contracted the disease only by reason of the physical intimacy which his wife was having several men.
(i) Despite several attempts to mediate, all attempts ended in failure.
(j) The respondent had started living separately.
4. The respondent herein had filed a counter denying the various allegations stated in the petition and contending that she had been subjected to several cruelty both physically and mentally at the hands of the petitioner and more particularly, his mother, who was living along with them. She would contend that the mother-in-law was angry with her because she had not brought the dowry as demanded by the petitioner and his mother. She would also contend that despite her informing the husband, namely, the petitioner herein about her pregnancy, the petitioner had not come to visit her and even after birth of the son, he did not immediately come to see the child. Only after three months, he had come to visit the child and he had taken back the child and mother only after nine months. In fact, when she was pregnant, the petitioner and his mother had gone to the Doctor to clarify as to whether her pregnancy was a natural one which has caused immense mental agony and anguish to the respondent. After the abortion of the second child, she had gone to her parents house for re-equipping and despite several attempts to send her back, the petitioner was not willing to take her back. After the evidence of both the parties were concluded and the matter was posted for arguments, the petitioner had come forward with the above petitions subject matter of the revision petitions.
5. The reason given in the affidavit for taking out the impugned petition is as follows:
"2.I filed the main petition for divorce against my wife/respondent. After both side witnesses, the main petition stand posted today for arguments. I was examined as PW1. I submit that to substantiate my case, I have to necessarily mark some vital documents regarding the illicit intimacy of the respondent. The typed copy of the conversation taken through a mini tape recorder between me and the doctor who treated the respondent will certainly prove the illicit intimacy of the respondent and it is very relevant to be adduced. Therefore, to mark some more vital documentary evidence on my side and to give further evidence, it is necessary to re-open the case.
6. Therefore, the only ground for filing the
