JUDGEMENT
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(1.)Challenge has been made to the order dated 18 -12 -2015 passed by the Family Court Kekri, District
Ajmer (hereinafter 'the Family Court) dismissing the petitioner -wife -non -applicants (hereinafter
'the non applicant) application praying that as the evidence of the
respondent -husband -non -applicant (hereinafter 'the applicant) placed in the course of a divorce
petition, on record of the Family court i.e. one pinhole camera, hard disk memory, 3 CD/ DVDs
video recording, mobile messages, CD/ DVD of bio -data photos along with the affidavit in evidence
was in the nature of electronic records without requisite certification under under Section 65B read
with 122 of the Evidence Act, 1872 (hereinafter the Act of 1872') and in the cross hair of Section 122
thereof, not be taken on record and read in evidence.
(2.)e facts relevant are that the applicant husband filed an application for dissolution of the marriage under Section 13 of the Family Court Act, 1984 (hereinafter 'the Act of 1984') against the the non
applicant wife praying that their marriage solemnized on 10 -12 -2013 be dissolved on the grounds of
cruelty and adultery. It was alleged that the applicant had in his possession a video clipping
recorded through a pin hole camera establishing the non applicants extra -martial relationship. The
divorce petition was resisted by denial. It was stated that the electronic record referred to as the
foundation of the divorce petition was fabricated and the petition was liable to be dismissed.
Pleadings being complete and issues framed, the applicant filed his affidavit in evidence in support
of the divorce petition and relied upon the video clippings alleged to be recorded by him establishing
the extra marital affair of the respondent wife and certain other electronic record. Following the
affidavit in evidence, the non applicant moved an application under Section 65B read with 122 of the
Act of 1872 stating that the electronic record placed on record by the applicant with his affidavit in
evidence did not satisfy the preconditions of Section 65B of the Act of 1872 and was therefore
inadmissible. Protection of Section 122 of the Act of 1872 was also invoked, stating that the
electronic record was inter alia constituted of privileged communication between the husband and
the wife, and hence could not be read in evidence without the consent of wife, which was absent. It
was submitted that the electronic record to the extent constituted of such communication was also
not admissible.
(3.)e applicant's response to the non -applicant's case was that the original electronic recordings having been placed on record of the family court, section 65B of the Act of 1872, which relates to
secondary evidence of electronic record, did not attract. It was further submitted that Section 122 of
the Act of 1872 was also not applicable to the electronic record placed before the family court in
support of the divorce petition. Inasmuch as all of it was not a communication between the husband
and the wife and even if it were, it was not hit by the plain language of the Section 122 of the Act of
1872 and saved by the exception inbuilt in the aforesaid section. Section 14 of the Family Court Act, 1984 was also invoked as an exception to issues of relevance and admissibility arising under the Evidence Act, 1872. The family court by the impugned order dated 18 -12 -2015 dismissed the non
applicants application. Hence this petition.
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