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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.2050 OF 2021

ASHWINI PRASAD DESHMUKH

VERSUS

PRASAD LAXMIKANT DESHMUKH

Mr.S.C.Swami, Advocate for the petitioner.

Mr.Shaikh Ashraf Patel h/f Mr.Abhijit P.Avhad, Advocate for the

respondent.

( CORAM : BHARATI H. DANGRE, J.)

DATE : FEBRUARY 18, 2022

PER COURT :

1.

Heard the learned Advocate for the petitioner and the learned

Advocate for the respondent. The matrimonial discord between the two

parties landed them before the Family Court, Latur, wherein the

respondent/husband filed a petition u/s 13(1) of the Hindu Marriage

Act, 1955 seeking dissolution of the marriage. Since the divorce is

sought on the ground of wife is in relationship with respondent No.2

(before Lower Courts), he was also impleaded as party respondent in

the proceedings before the Trial Court.

2.

In this pending proceedings, the husband moved an application

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vide Exh.77 seeking permission to adduce secondary evidence and the

relief in the application was prayed in the background that he had

already produced copies of whats app messages between his wife and

respondent No.2 (Respondent No.2 before Trial Court), which were

obtained by him from the mobile phone given by his wife. Since the

claim of the husband of the petitioner is on the ground of adultery, he

relied upon the chat history between petitioner/wife and respondent

No.2 and he pleaded that he scanned the chat sessions and obtained

scan sheets of the messages of his mobile and sent this scanned sheets

to the Forensic Laboratory, which had authenticated these messages

with the help of Forensic Aid. However, in order to establish and prove

this chat to be an authentic one, he seek production of the mobile

phone before the Court.

This application has been allowed by the learned Judge of the

Family Court in the background that the husband has already filed print

out of the alleged chat history between his wife and respondent No.2

but in absence of the certificate u/s 65-B of the Indian Evidence Act, it

cannot be read in evidence.

Though the mobile phone of petitioner/wife, which is in

possession of the respondent/husband, sought to be produced before

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the Court, it is stated that it is having a pattern lock. Unless and until,

the lock is opened and the data is transcribed, and the chats are backed

up by 65-B certificate, the chat history cannot be relied upon. Though

the learned Judge has granted opening of the mobile phone, I do not

think it is permissible for him to open the mobile phone pattern lock

and as on date, even the husband has produced the chat history

without 65-B certificate. In such case the learned Family Judge will

have to be carefully tread upon the evidence produced before him,

considering the admissibility of this type of evidence without the phone

being unlocked and whats app chat on which the husband is seeking

reliance is without 65-B certificate.

3.

With this observation and a word of caution being expressed, the

writ petition is disposed off.

( BHARATI H. DANGRE, J.)

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