Sunday, 20 January 2019

Whether family court can admit CD in evidence even in absence of certificate as per S 65B of Evidence Act?

The core question to be addressed in the present case is
whether the CD produced before the Family Court could be admitted
in evidence in the absence of certification under Section 65-B(4) of
the Indian Evidence Act.
9. The argument of the learned counsel for the petitioner is
that the Family Court failed to notice and to give effect to Section 14
of the Family Courts Act (for short 'the Act') which empowers the
Family Courts to dispense with the application of the rigid rules of the
relevancy and admissibility of evidence incorporated in the Indian
Evidence Act 1872 to the proceedings before them and further erred

in refusing to receive the uncertified CD in evidence. The argument,
according to us, is legally sound and merits acceptance.
10. Section 14 of the Act reads as follows:
“Application of Indian Evidence Act, 1872:- A Family court
may receive as evidence any report, statement, documents,
information or matter that may, in its opinion, assist it to deal
effectually with a dispute, whether or not the same would be
otherwise relevant or admissible under the Indian Evidence
Act, 1872 (1 of 1872).”
The words employed in the Section make it abundantly clear that, any
matter, information etc., placed before a Family Court may be
admitted in evidence uninhibited by the rules of relevancy and
admissibility prescribed by the Evidence Act, provided the Family
Court is of the opinion that the matter before it is essential for the
effective resolution of the dispute in the proceeding. Understood in
the light of the object and scheme of the Act, Section 14 of the Act
seems to convey the legislative intention that Family Court has
absolute freedom to depart from adopting the sophisticated and strict
rules of relevancy and admissibility applicable to the regular civil
courts in the country. The freedom of partial departure from the
Evidence Act helps the Family Courts prevent valuable information
and materials necessary for effective adjudication of disputes from

being shut out in the enquiries and trial. In effect, the rules of
relevancy and admissibility in the Evidence Act ought to be read
subject only to Section 14 of the Act. In the event of any
inconsistency emerging between the provisions of these two Acts,
Family Courts Act 1984 alone will prevail, thanks to Section 20 of the
Act.
In view of the overriding effect of the Section 14 of the Act on
the rules of admissibility in the Evidence Act, we hold that the CD
produced before the Family Court, Thalassery is admissible in
evidence, despite the fact that it was not certified as mandated by
Section 65-B(4) of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT


OP (FC).No. 513 of 2018

PRAMOD E.K. Vs LOUNA V.C.

Coram:
C.K.ABDUL REHIM
&
T.V.ANILKUMAR, JJ.

Dated:14th day of January 2019



All the three interim applications filed by the husband in
O.P.609/2017 before the Family Court, Thalassery were dismissed on
31.7.2018 by a common order. He challenges the dismissal by
invoking the powers of this Court under Article 227 of the Constitution
of India.
2. He married the sole respondent in the O.P. on 19.4.1997 and
later filed O.P.609/2017 for dissolution of marriage on the ground of
cruelty. He had also filed O.P. 371/2013 for permanent custody of the
minor children. The respondent/wife also filed O.P.204/2014 and MC
111/2014 claiming maintenance from him.
3. While the respondent, wife was being cross examined in the
O.P. No.371/2013, the petitioner/husband confronted her with a

quarrelsome conversation of her recorded by him in his mobile phone.
Since the sound track played from the mobile phone in the course of
trial did not appear to the witness to be clear, she replied that she
was not able to confirm the conversation. This led to the petitioner
recording the voice in a CD and producing it in O.P.609/2017. The
mobile phone was, however, not produced in any of the proceedings
till date and the device seems to be in the custody of the petitioner.
4. The petitioner submitted before the Family Court that CD
containing the voice of the respondent is a secondary evidence
admissible under Section 65-B (4) of the Indian Evidence Act 1872.
He therefore filed I.A.491/2018 for an order admitting the CD in
evidence. He also filed I.A.763/2018 invoking Order XXVI Rule 10 A
of the CPC for appointment of an Advocate Commissioner for
recording the sample voice of the respondent in an electronic device
at the digital studio attached to the All India Radio, Kannur and
producing the same before the court along with certificate issued by a
responsible officer attached to the studio under Section 65-B(4).
I.A.384/2018 is the third petition filed by the petitioner for sending the
sample voice of the respondent to a scientific expert attached to a
Forensic Laboratory for comparison of her voice extracted in the CD.
5. The respondent did not, in her counter statements, oppose

the plea for recording the sample voice or for comparing it with the
contents in the CD at the Forensic Laboratory. Nonetheless, the
court below dismissed all the three petitions on 31.7.2018 by the
impugned order taking a view that even if a scientific result
favourable to the petitioner is obtained, it would be of no help to him
so long as the CD is not certified under Section 65-B(4) of the Indian
Evidence Act and is inadmissible in evidence. Two decisions,
Perumal Vs. Star Tours and Travels (India) Ltd., (2010) (3) KLT
SN.15) and P.V.Anwar Vs. P.K.Basheer and Others, (AIR 2015 SC
180) were relied on in this respect by the court below in passing the
impugned order.
6. Heard counsel on either side.
7. Under Section 65-B(4), secondary evidence of an electronic
document is not admissible unless it is certified by a responsible
person as required by the Section. If objection on the ground of lack
of certification is omitted to be taken at the time of tender of the
electronic document in evidence, the challenge to admissibility cannot
be raised at a later stage of the proceeding since the law deems the
objection to be waived. The principle of waiver and consequential
estoppal applicable to ordinary documents applies to electronic
documents also, as can be discerned from the decision of the

Hon'ble Supreme Court in Sonu @ Amer Vs.State of Haryana,
[(2017) KHC (6474)]. The Hon'ble Supreme Court in a recent
decision in Shafhi Muhammed Vs. State of Himachal Pradesh
[(2018) (2) KHC (80)] made it clear that the insistence for certification
under Section 65-B(4) of the Evidence Act should be confined only to
such cases where the person proposing to tender secondary evidence
is not in control of the electronic device and consequently not in a
position to secure certification. In the case at hand, the petitioner
indisputably holds custody of the cell phone alleged to have been
used by him for recording the quarrelsome dialogue of the
respondent.
8. The core question to be addressed in the present case is
whether the CD produced before the Family Court could be admitted
in evidence in the absence of certification under Section 65-B(4) of
the Indian Evidence Act.
9. The argument of the learned counsel for the petitioner is
that the Family Court failed to notice and to give effect to Section 14
of the Family Courts Act (for short 'the Act') which empowers the
Family Courts to dispense with the application of the rigid rules of the
relevancy and admissibility of evidence incorporated in the Indian
Evidence Act 1872 to the proceedings before them and further erred

in refusing to receive the uncertified CD in evidence. The argument,
according to us, is legally sound and merits acceptance.
10. Section 14 of the Act reads as follows:
“Application of Indian Evidence Act, 1872:- A Family court
may receive as evidence any report, statement, documents,
information or matter that may, in its opinion, assist it to deal
effectually with a dispute, whether or not the same would be
otherwise relevant or admissible under the Indian Evidence
Act, 1872 (1 of 1872).”
The words employed in the Section make it abundantly clear that, any
matter, information etc., placed before a Family Court may be
admitted in evidence uninhibited by the rules of relevancy and
admissibility prescribed by the Evidence Act, provided the Family
Court is of the opinion that the matter before it is essential for the
effective resolution of the dispute in the proceeding. Understood in
the light of the object and scheme of the Act, Section 14 of the Act
seems to convey the legislative intention that Family Court has
absolute freedom to depart from adopting the sophisticated and strict
rules of relevancy and admissibility applicable to the regular civil
courts in the country. The freedom of partial departure from the
Evidence Act helps the Family Courts prevent valuable information
and materials necessary for effective adjudication of disputes from

being shut out in the enquiries and trial. In effect, the rules of
relevancy and admissibility in the Evidence Act ought to be read
subject only to Section 14 of the Act. In the event of any
inconsistency emerging between the provisions of these two Acts,
Family Courts Act 1984 alone will prevail, thanks to Section 20 of the
Act. In the two decisions of the High Court of Kerala, Treasa Bency
Vs. Preceline George, (2013) (3) KLT 414) and Pankajakshan Nair
Vs. Shylaja, (2017) (1) KLJ 739), the uniform view taken is to the
effect that the technicalities of the Evidence Act should not be
imported to the proceeding before the Family Courts in view of the
provisions in Section 14 of the Act. We too concur with the view
expressed in the said decisions.
11. In view of the overriding effect of the Section 14 of the Act on
the rules of admissibility in the Evidence Act, we hold that the CD
produced before the Family Court, Thalassery is admissible in
evidence, despite the fact that it was not certified as mandated by
Section 65-B(4) of the Act. The contention put forth by the learned
counsel for the respondent that the non obstante clause in Section
65-B (1) introduced by Act No.21 of 2000 would, however, prevail
over Section 14 of the Act rendering production of certificate under
Section 65-B(4) of the Evidence Act inevitable, does not merit

acceptance. The words used in Section 65-B(1) sufficiently indicate
that the non obstante clause does not extend outside the Evidence
Act nor does it curtail the operation of any other law.
12. The Family Courts though not bound by the sophisticated
rules of relevancy or admissibility of evidence by virtue of Section 14
of the Act, in our opinion, should not, however be understood to
possess unregulated or unbridled power or freedom to receive in
evidence indiscriminately all matters that are brought before them.
Any undue and excessive liberal interpretation put on Section 14 of
the Act may only produce mischievous and disaster result and even
do disservice to the system. While interpreting Section 14, only the
true legislative object should be given effect to and promoted and any
mischief suppressed. The hearsay which is inherently inadmissible
cannot be therefore acknowledged as an evidence in any proceeding
before a Family Court also.
13. The legal system of our country has always the tradition of
observing ordinary principles of proof and natural justice even in
situations where authorities of law deciding cases are not bound or
governed by the Evidence Act 1872. Section 14 of the Act is only
aimed at mitigating the rigour of sophisticated rules of relevancy and
admissibility of the Evidence Act, rather than annihilating the very

fundamental rules of proof and natural justice inherent in an ideal
legal system. We are therefore, of the view that the Family Courts
absolved from the trauma of observing rules of relevancy and
admissibility of evidence envisaged by the Evidence Act 1872, are
nonetheless bound to adhere to the fundamental rules of evidence
based on logic, fairness and expediency and also principles of natural
justice.
14. This naturally takes us to an inquisitive question whether the
production and admission of the CD in evidence by the mere force of
Section 14 of the Evidence Act are proof of the alleged quarrelsome
talk of the respondent. Mere admission of a document in evidence,
whether it be electronic or otherwise, will not discharge the burden of
the party proposing evidence from proving the contents also. What
Section 14 of the Act enacts is not any special rule of evidence as
certain other special statues do. A document merely marked with or
without consent of the opposite party in a proceeding before a Family
Court is no proof at all unless the contents thereof are either
admitted by the adverse party or proved through the persons who
can vouch for the truth of the facts. This is an elementary principle of
proof flawing from principles of natural justice, logic fairness and
expediency dehors the provisions of the Evidence Act. We are of the

opinion that Family Courts cannot take any exception to this binding
fundamental rule of evidence and therefore, the CD produced before
the Family Court cannot be said to be proved unless the contents are
also proved despite its admission in evidence. Section 14 of the Act
as evident from the very language of the Section itself only relaxes
observance of the rules of relevancy and admissibility of evidence
rather than dispensing with the very fundamental principles of
evidence and natural justice or proof of contents of a document.
15. The purported voice of respondent extracted in the CD in
our opinion has to be proved in the same manner as a tape recorded
conversation. The petitioner can succeed in proving the alleged
riotous dialogue in the CD only when the identity of the speaker is
also proved. Proof of the accuracy of the statement recorded is
another essential requirement in the matter of proof of a tape
recorded conservation. The court accepting the evidence must rule
out that no tampering was made while the statement was recorded.
These are only some of the guidelines in the matter of proof of
contents of the CD. Elaborate discussion as to how a tape recorded
conservation could be proved is decipherable from Ram Singh and
others V. Col.Ram Singh, (AIR 1986 SC 3), Yusufalli Esmail
Nagree (AIR 1968 SC 147) and Sunil Panchal Vs. State of

Rajasthan, (MANU/RH/0987/2016 ). Unless all the essential
conditions above are satisfied, contents of the CD produced by the
petitioner cannot be said to be proved despite its admission in
evidence by the mere force of Section 14 of the Act.
16. In view of the forgoing discussion made, the impugned order
of the Family Court dated 31.7.2018 is hereby set aside and
consequently, I.As 384, 491 & 763 of 2018 filed by the petitioner are
allowed. The court below is directed to proceed to take requisite
follow up action.
In the result, the O.P.(FC) is allowed.

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