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criwp498.21

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 498 OF 2021

Dhananjay S/o. Balasaheb Kanakdande,

...PETITIONER

Age-35 years, Occu-Agri,

(ori. Respondent)

R/o. Berali, Tq. Loha,

Dist. Nanded

VERSUS

1.

Sow Sarita Dhananjay Kanakdande,

...RESPONDENTS

Age-38 years, Occu-Household,

(Ori. Petitioners)

R/o. Berali, Tq. Loha, Dist. Nanded,

Presently residing Mantri Nagar,

Bhavasar Chowk, Dist. Nanded

2.

Aakanksha Dhananja Kanakdande,

Age-17 years, Occu-Nil,

3.

Brijesh S/o. Dhananjay Kanakdande,

Age-14 years, Occu-Nil,

4.

Aarati D/o. Dhananjay Kanakdande,

Age-11d years, Occu-Nil,

The respondent Nos. 2 to 4 are minor through

their mother Sarita Dhananjay Kanakdande

Mr. Pavan P. Uttarwar, Advocate for the petitioner

Mr. Ramesh I. Wakade, Advocate for the respondent No.1

CORAM : SURENDRA P. TAVADE, J.

RESERVED ON : 10-08-2021

PRONOUNCED ON : 20-08-2021

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JUDGMENT :

.

Rule. Rule made returnable forthwith. With the consent

of the parties, the petition is taken up for final hearing.

2.

In this petition the petitioner is challenging the order

dated 01-03-2021 passed by the learned Family Judge, Nanded

below Exh.1 in petition No. E 237 of 2014. It is contended that the

respondent No.1 has filed the petition for maintenance bearing No.

237 of 2017 before the Family Court, Nanded. The Family Court

granted maintenance to the respondent Nos. 2, 3 and 4.

Maintenance allowance was not granted to the respondent No.1 on

the ground that she was able to maintain herself.

3.

The respondent No.1 led her evidence in the said case.

Thereafter, present petitioner led his evidence and relied on the

evidence of his brother Sanjay Kanakdande who produced memory

card of his mobile phone. The case of petitioner is that his brother

Sanjay Kanakdande recorded conversation between himself and

respondent No.1 wherein respondent No.1 made disclosure that she

has sexual relation with many persons. The petitioner submitted an

application for sending the said memory card for the forensic

examination. Said application was allowed by the trial court. Said

order was challenged by the respondent No.1 before this court by

Criminal Writ Petition No. 239 of 2016. The said petition came to be

dismissed on 08-03-2017 with direction that petitioner shall comply

with the requirement Section 65(2) of Evidence Act. It is contended

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that the petitioner has complied with the provision of Section 65(2)

of the Evidence Act. Thereafter, he filed an application for sending

sample of voice of respondent No. 1 to Forensic Lab. Said

application was allowed. Said order was challenged by the

respondent No.1 by filing writ petition No.1389 of 2017. Said writ

petition was dismissed and respondent No.1 was directed to give

her sample of voice before the forensic lab. The memory card was

sent as per the order to the Forensic Lab, Pune. But, the Forensic

Lab sent back the memory card with advise, that it may be sent to

the Forensic Lab, Aurangabad. But, meantime, the memory card

was lost in the transit. The petitioner filed copy of memory card for

sending it for analysis. It was allowed. Due to pandemic copy of

memory card was not sent to the lab. On 01-03-2021 the trial court

passed an order wherein it was observed that duplicate memory

card is not admissible in the evidence. Therefore, it should not be

sent to the Forensic Lab for analysis. Said order is challenged in this

petition.

4.

Heard learned counsel for the petitioner and learned

counsel for the respondents.

5.

The respondents also filed an affidavit wherein it is

contended that the provision of sub-section 2 and 65 B of the

Evidence Act is not applicable to the electronic record for filing

secondary evidence. It is also contended that only the original

memory card can be sent to analysis not duplicate memory card.

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