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2023 Supreme(Online)(KER) 19486
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
KOHENSUR D. JAYAN
– Appellant
Versus
SURESH KUMAR R – Respondent
OP (FC) 646 2022
AYSHA YOUSEFF, MOLLY JACOB, JOBI.A.THAMPI, M.KABANI, DINESH, ASHIFA YOUSEFF, RABIA BEEGAM, T.K.FASHIYA YOUSEFF, C.M.EBRAHIM, SHOUKATH HUSAIN, T.M.MOHAMED YOUSUFF(SR.)
The power to recall witnesses post-evidence is strictly limited to clarifying ambiguities, not for correcting omissions, as established under the Indian Evidence Act.
Headnote:
Evidence - Family Law - Indian Evidence Act - Section 65B, Order XVIII Rule 17 CPC - The court analyzed provisions of the Indian Evidence Act regarding electronic evidence and the discretionary power under Order XVIII regarding recalling witnesses, leading to the conclusion that reopening evidence post-trial is impermissible except for clarifying ambiguity.
Fact of the Case:
The respondent sought to set aside orders allowing evidence reopening in a family law case concerning marriage dissolution, arguing that such requests were belated and aimed to fill evidence gaps.
Finding of the Court:
The court found that the requests to reopen evidence were primarily attempts to fill lacunae and lacked bona fides, specifically in light of the delayed nature of these requests after trial completion.
Issues: Whether the Family Court's orders to allow reopening and call for further evidence after the trial had concluded were justified under the provisions of the law and the circumstances of the case.
Ratio Decidendi: The court ruled that recalling witnesses and reopening evidence after conclusion of trial is only permissible to clarify existing evidence and cannot be used to rectify evidential omissions or prolong proceedings.
Final Decision: The Original Petition is allowed in part; orders Exts.P7 and P8 are set aside while Ext.P9 is upheld.
JUDGMENT
P.G. Ajithkumar, J.
The respondent in O.P.No.2214 of 2016 of the Family Court, Ernakulam has filed this Original Petition under Article 227 of the Constitution of India. She seeks to set aside Exts.P7, P8 and P9 orders dated 14.10.2022 of the Family Court.
2. Pursuant to notice, the respondent entered appearance.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. O.P.No.2214 of 2016 was filed by the respondent before the Family Court, Ernakulam seeking a decree of dissolution of his marriage with the petitioner, which was solemnised on 19.04.2000, on the ground of cruelty. Ext.P1 is a copy of the said original petition. Ext.P1(a) is the objection filed by the petitioner herein. She has filed O.P.No.2255 of 2015 before the Family Court, Ernakulam for a declaration that she is the owner of the property described as item No.1 in A-Schedule, to return of gold ornaments and ancillary reliefs. Ext.P2 is a copy of the said original petition. She had also filed M.C.No.242 of 2017 claiming maintenance from the petitioner. In the joint trial held in the said cases, evidence on both sides was recorded. Thereafter, the respondent has filed I.A.Nos.820 of 2022, 822 of 2022 and 823 of 2022, copies of which are Exts.P4, P5 and P6. The petitioner filed counter affidavits to all the said interlocutory applications. After hearing both sides, the Family Court allowed those applications vide separate orders, copies of which are Exts.P7, P8 and P9 respectively.
5. As per Ext.P7 order, the respondent was allowed to call for details pertaining to a prepaid mobile phone connection having number 8714800395 during the period from September 2015 to December, 2021. As per Ext.P8 order, the respondent was allowed to recall and re-examine the petitioner for the purpose of confronting the audio recording contained in Ext.A10 C.D. and in the event of her denying her voice in the recording, to send Ext.A10 to the Forensic Science Laboratory, Thiruvananthapuram for ascertaining truth or falsity of the denial. Ext.P9 order directs to send Ext.A26 and A27 diaries, which were already admitted in evidence, to the Forensic Science Laboratory, Thiruvananthapuram along with specimen handwriting of the petitioner for comparison.
6. The learned counsel appearing for the petitioner would submit that filing of those petitions after recording entire evidence on either side is nothing but an attempt to protract the proceedings. It is contended that the mobile phone number mentioned in Ext.P4 application belongs to the respondent himself and without stating any reason the call details of the said mobile phone is sought to be called for. Similarly, no reason has been stated for confronting the audio recording in Ext.A10 C.D. with the petitioner. At any rate, after recording the entire evidence on either side, the respondent cannot be allowed to get the evidence reopened for the purpose of confronting the petitioner with the contents of a document, which was produced much earlier to her examination as a witness.
7. The further contention of the learned counsel for the petitioner is that Ext.A10 is an electronic record, but it was produced without a certification under Section 65B of the Indian Evidence Act , 1872. For that reason also the request to confront that document with the petitioner could not be allowed. It is also alleged that the Family Court failed to consider the fact that such an examination will amount to infringement of the right of privacy of the petitioner.
8. As regards Exts.A26 and A27, which are diaries purportedly written by the petitioner, it is urged that the reason why Exts.A26 and A27 are to be examined in the Forensic Science Laboratory has not been disclosed. Therefore, the Family Court went wrong in allowing Ext.P6 application; whereby the request to examine genuineness of Exts.A26 and A27 were allowed.
9. The Apex Court inRam Rati v. Mange Ram (Dead) through LRs. and others [ (20
