IMPORTANT POINT
Hearsay evidence which is inherently inadmissible cannot be therefore acknowledged as an evidence in any proceeding before a Family Court u/s 14 of the Act.

JUDGMENT

T.V. Anilkumar, J.—All the three interim applications filed by the husband in O.P.609/2017 before the Family Court, Thalassery were dismissed on 31.7.2018 by a common order. He challenges the dismissal by invoking the powers of this Court under Article 227 of the Constitution of India.

2. He married the sole respondent in the O.P. on 19.4.1997 and later filed O.P.609/2017 for dissolution of marriage on the ground of cruelty. He had also filed O.P. 371/2013 for permanent custody of the minor children. The respondent/wife also filed O.P.204/2014 and MC 111/2014 claiming maintenance from him.

3. While the respondent, wife was being cross examined in the O.P. No.371/2013, the petitioner/husband confronted her with a quarrelsome conversation of her recorded by him in his mobile phone. Since the sound track played from the mobile phone in the course of trial did not appear to the witness to be clear, she replied that she was not able to confirm the conversation. This led to the petitioner recording the voice in a CD and producing it in O.P.609/2017. The mobile phone was, however, not produced in any of the proceedings till date and the device seems to be in the custody of the petitioner.

4. The petitioner submitted before the Family Court that CD containing the voice of the respondent is a secondary evidence admissible under Section 65-B (4) of the Indian Evidence Act 1872. He therefore filed I.A.491/2018 for an order admitting the CD in evidence. He also filed I.A.763/2018 invoking Order XXVI Rule 10 A of the CPC for appointment of an Advocate Commissioner for recording the sample voice of the respondent in an electronic device at the digital studio attached to the All India Radio, Kannur and producing the same before the court along with certificate issued by a responsible officer attached to the studio under Section 65-B(4). I.A.384/2018 is the third petition filed by the petitioner for sending the sample voice of the respondent to a scientific expert attached to a Forensic Laboratory for comparison of her voice extracted in the CD.

5. The respondent did not, in her counter statements, oppose the plea for recording the sample voice or for comparing it with the contents in the CD at the Forensic Laboratory. Nonetheless, the court below dismissed all the three petitions on 31.7.2018 by the impugned order taking a view that even if a scientific result favourable to the petitioner is obtained, it would be of no help to him so long as the CD is not certified under Section 65-B(4) of the Indian Evidence Act and is inadmissible in evidence. Two decisions, Perumal Vs. Star Tours and Travels (India) Ltd., (2010) 3 KerLT 15 and P.V.Anwar Vs. P.K.Basheer and Others, (2015) AIR SC 180 were relied on in this respect by the court below in passing the impugned order.

6. Heard counsel on either side.

7. Under Section 65-B(4), secondary evidence of an electronic document is not admissible unless it is certified by a responsible person as required by the Section. If objection on the ground of lack of certification is omitted to be taken at the time of tender of the electronic document in evidence, the challenge to admissibility cannot be raised at a later stage of the proceeding since the law deems the objection to be waived. The principle of waiver and consequential estoppal applicable to ordinary documents applies to electronic documents also, as can be discerned from the decision of the Hon’ble Supreme Court in Sonu @ Amer Vs. State of Haryana,2017 KHC 6474. The Hon’ble Supreme Court in a recent decision in Shafhi Muhammed Vs. State of Himachal Pradesh, 2018 2 KHC 80 made it clear that the insistence for certification under Section 65-B(4) of the Evidence Act should be confined only to such cases where the person proposing to tender secondary evidence is not in control of the electronic device and consequently not in a position to secure certification. In the case at hand, the petitioner indisputably holds custody of the cell phone all