PREETI JAIN Vs. KUNAL JAIN
LAWS(RAJ)-2016-5-54
HIGH COURT OF RAJASTHAN
Decided on May 27,2016

PREETI JAIN Appellant
VERSUS
Kunal Jain Respondents


Referred Judgements :-

ANVAR P.V. VS. P.K. BASHEER [REFERRED TO]



Cited Judgements :-

SANGEETA GERA VS. SANJEEV GERA [LAWS(DLH)-2018-8-541] [REFERRED TO]
RITU SAIGAL VS. RAKESH SAIGAL [LAWS(P&H)-2022-3-131] [REFERRED TO]
RAM TALRAJA VS. SAPNA TALREJA [LAWS(MPH)-2022-4-193] [REFERRED TO]


JUDGEMENT

- (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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