CRP.(PD).No. 655 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Orders Reserved on : 08.10.2020

Pronounced on : 14.12.2020

CORAM :

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

CRP.(PD).No. 655 of 2020

and

C.M.P.No. 3383 of 2020

Mrs. A. Priyadarsini

... Petitioner

Versus

Mr. M. Kumaresh

... Respondent

Prayer:

Civil Revision Petition filed under Article 227 of the Constitution

of India, to set aside the impugned order dated 23.01.2020 passed in

O.P.No.2552 of 2016 on the file of III Additional Judge, Family Court,

Chennai, as unsustainable, irrational, against law, facts and equity

and reject the Exhibit-P9 (CD) filed through PW2 by allowing the

above Civil Revision Petition.

For petitioner

: Mr. OM.Prakash (SC)

Asst. by Mr. P.Elayarajkumar

For Respondents : Mr. S.S. Karthikeyan

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CRP.(PD).No. 655 of 2020

ORDER

The revision petitioner is the respondent in the H.M.O.P.

No.2552 of 2016.

2. The Civil Revision Petition is filed by the revision

petitioner/wife under Article 227 of the Constitution of India, to reject

the Exhibit-P9 (CD) filed through PW2 during the trial of the

H.M.O.P.No.2552 of 2016 on the file of III Additional Family Court,

Chennai.

3. The petitioner/husband filed H.M.O.P.No. 2552 of 2016

before the III Additional Family Court, Chennai, to dissolve the

marriage between the petitioner and the respondent on the ground of

cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955.

The petitioner/husband had examined himself as PW1 and Ex.P1 to

Ex.P8 were marked on the side of the husband. Thereafter, one

Mr.Sridhar, uncle of the husband, examined as PW2, filed one CD

along with proof affidavit and also served a copy of the same to the

respondent/wife therein and the CD was also marked as Ex.P9 and

Ex.P10 is the receipt for retrieving the data from the mobile phone of

the PW2. Mr.Sridhar (PW2), uncle of the husband, had filed proof

affidavit dated 07.11.2009 stating that information sought for said to

have been happened in his house. After marking of the document,

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CRP.(PD).No. 655 of 2020

the petitioner and the respondent filed a memo alleging that they

cannot be allowed to give evidence in the matrimonial dispute and the

receipt of Ex.P9 (CD) is in violation of the Indian Evidence Act and

filed a memo to reject the Ex.P9 and Ex.P10. The aforesaid memo

was rejected by the learned III Additional Judge, Family Court,

Chennai, by a docket order dated 23.01.2020. Hence, the Civil

Revision Petition has been filed by the revision petitioner/wife.

4. Heard the learned counsel for the petitioner and the learned

counsel appearing for the respondent and perused the materials

available on record.

5. The contention of the petitioner/wife is as follows.-

The memo was filed by the petitioner in O.P.No. 2552 of 2016

on the file of the III Additional Judge, Family Court, Chennai, seeking

to reject the Ex.P9 marked through PW2. The memo was filed in

O.P.No. 2552 of 2016 with a specific averment that without the leave

of the court and complying the statutory provisions and without

serving a copy of the Exhibit and without putting on notice, filing of a

CD, marked as Ex.P9, by the respondent through PW2, is not

permissible in the eye of law. Hence, the marking of the CD, being

an electronic record and rejecting the objection by impugned order

dated 23.01.2020, in the memo filed by the petitioner, is liable to be

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CRP.(PD).No. 655 of 2020

set aside.

6. The learned counsel for the revision petitioner has also

stated that whether there is any pleading in the petition as to

whether the respondent is put on notice or provided with the copy of

the exhibit and whether the requirement, under Section 65-B of the

Information and Technology Act