Ajithkumar, J.

The petitioner filed O.P.(HMA) No.1054 of 2017 before

the Family Court, Pathanamthitta. The respondents herein are

the respondents in that O.P. The petitioner also filed I.A.No.1

of 2020 seeking to call for the records in M.C.No.220 of 2016

on the file of the Chief Judicial Magistrate's Court,

Pathanamthitta. As per the order dated 13.07.2022 the Family

Court dismissed that application. Challenging legality of that

order, the petitioner filed this Original Petition under Article

227 of the Constitution of India.

2.

On 10.10.2022, notice was ordered to be served on

the respondents. The petitioner was permitted to serve notice

on the respondents through their counsel appearing before

the Family Court, Pathanamthitta, where O.P.(HMA) No.1054

of 2017 is pending. The 1^st respondent entered appearance

through counsel. The 2^nd respondent did not choose to appear

before this Court.

3.

Heard the learned counsel appearing for the petitioner

and also the learned counsel appearing for the 1^st respondent.

4

4.

O.P.(HMA) No.1054 of 2017 was filed by the

petitioner for dissolution of his marriage with the 1^st

respondent, which was solemnized on 28.04.2002. The

allegations are that the 1^st respondent meted out cruelty and

has been maintaining extra-marital relationship with the 2^nd

respondent. The 1^st respondent filed an objection in that O.P.

denying the allegations. She filed M.C.No.220 of 2016 before

the Chief Judicial Magistrate, Pathanamthitta under the

provisions of the Protection of Women from Domestic Violence

Act, 2005 and on obtaining a protection order she continued

residence in the house belonging to the petitioner. The

petitioner had with him the mobile phone of the 1^st

respondent from which she used to contact the 2^nd

respondent. The petitioner retrieved the chat and call records

from the said mobile phone. He then produced the mobile

phone along with the chat and call records before the Chief

Judicial Magistrate in M.C.No.220 of 2016.

5.

The petitioner alleges that the 1^st respondent

confronted with a situation that the truth will come out, she

withdrew from prosecuting M.C.No.220 of 2016. Her request

5

was allowed and the M.C. was dismissed. The petitioner

therefore filed an application before the Chief Judicial

Magistrate to get the mobile phone along with chat and call

records from the court, which he has produced, to return to

him for production before the Family Court, where O.P.(HMA)

No.1054 of 2017 is pending. That application was allowed. But

the 1^st respondent staked a claim for the return of the mobile

phone on the premises that the same belongs to her and if

the same happened to be in the custody of anyone else there

is possibility for its misuse and violation of her privacy. In the

said circumstances, the petitioner filed Ext.P9 (I.A.No.1 of

2020 in O.P.(HMA) No.1054 of 2017) before the Family Court

seeking to call for the records in M.C.No.220 of 2016 including

the mobile phone for the purpose of reference in that case.

The 1^st respondent filed an objection, a copy of which is

Ext.P10. She reiterated that the said mobile phone was

produced by the petitioner after manipulating the data in it

and any misuse of the same will affect her privacy.

6.

The Family Court, after hearing both sides,

dismissed Ext.P9 application holding that an appeal relating to

6

the proceedings in M.C.No.220 of 2016 is pending before the

Sessions Court, Pathanamthitta as Crl.Appeal No.29 of 2020,

and therefore the records now in the custody of the Chief

Judicial Magistrate could not be called for.

7.

The learned counsel appearing for the petitioner

would contend that the pendency of an appeal has nothing to

do with getting documents produced in the Family Court and

consideration is only whether those documents are accessible

and relevant in the proceedings pending before the Family

Court. In this regard, the learned counsel appearing for the

petitioner placed reliance on the decision i