High Court of Jharkhand dismissed a CPC for quashing an order allowing photographic and mobile evidence to be sent for forensic examination in a suit for dissolution of marriage on grounds of adultery.
The C.M.P. was dismissed; petitioner to take available points after receipt of forensic report from CFSL.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 78 of 2020
Puja Kumari ..... … Petitioner Versus Jitendra Kumar Mahto …. …. Respondent
CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner :- Mr. A.K.Sahani, Advocate For the Respondent :-
Order No. 07 Dated: 12.02.2021
2. The present CMP has been preferred for quashing the impugned order dated 27.08.2019 (wrongly written as 15.07.2019 at the relevant parts of the writ petition) passed by the Additional Principal Judge, Additional Family Court, Dhanbad in Original Suit No. 655 of 2017 whereby the petition dated 28.03.2019 filed by the respondent for sending the photographs as contained in Annexure 9(i) to 9(ii) and one mobile set to the examiner of electronic evidence or any government scientific expert for his opinion, has been allowed.
3. Mr. A.K. Sahani, learned counsel for the petitioner, submits that the respondent herein has filed Original Suit No. 655 of 2017 before the Principal Judge, Family Court, Dhanbad for dissolution of marriage of the petitioner and the respondent under the provisions of section 13(1)(i)(ia) of the Hindu Marriage Act, 1955 alleging therein that the petitioner had illicit relationship with one Shiv Kumar Singh. The petitioner appeared in the said suit and filed her written statement. The respondent filed a petition dated 28.03.2019 before the Principal Judge, Family Court, Dhanbad for sending the photographs and mobile set for examination to examiner of electronic evidence or any government scientific expert. The petitioner opposed the said prayer of the petitioner by filing a rejoinder, however the court below allowed the petition of the respondent for sending the photographs and mobile phone to the CFSL, Kolkata. It is further submitted that the prayer of the respondent in the petition dated 28.03.2019 was beyond pleading and as such the same should not have been allowed by the court below. The alleged adulterer has not been made as party respondent in the said suit and as such the petition for divorce on the ground of
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adultery was itself not maintainable. It is also submitted that the evidence led by the plaintiff’s witnesses failed to establish that the petitioner was with Shiv Kumar Singh in the hotel at Puri. The impugned order suffers from the vice of non-consideration of Section 45 of the Indian Evidence Act, 1872 and the same cannot be sustained. The court below failed to appreciate that the respondent had filed the petition dated 28.03.2019 just to fill up the lacuna in the said suit.
4. Heard learned counsel for the petitioner and perused the materials available on record. The petitioner is aggrieved with the order dated 27.08.2019 passed by the court below whereby the prayer of the respondent herein was allowed and some photographs and mobile set were ordered to be sent to CFSL, Kolkata to get its opinion on the said electronic evidences.
5. This Court vide order dated 24.06.2020 called for report from the court below regarding the present status of Original Suit No. 655 of 2017. Pursuant to the said order, the Additional Principal Judge, Additional Family Court, Dhanbad submitted the report vide letter no.119 dated 07.07.2020 apprising this Court that the Director CFSL, Kolkata, vide letter dated 11.12.2019, stated that the articles could not be accepted for examination due to certain technical reasons as mentioned in the letter with a further request to resubmit the same after necessary correction.
6. It is evident that the ground for divorce as taken in Original Suit No.655 of 2017 was adultery, however the said allegation of the respondent herein was denied by the present petitioner. The respondent in order to prove the allegation of adultery brought on record some photographs and mobile set with the list of documents and subsequently filed a petition dated 28.03.2019 for sending the said photographs and mobile set to scientific expert claiming that since the respondent had denied the said allegation of adultery, it was necessary to prove the genuineness of the photographs. The petitioner had filed reply to the said petition and denied all the allegations made by the respondent, however did not aver sufficient explanation as to what prejudice could cause to her on allowing the respondent’s petition dated 28.03.2019. Moreover, looking to the
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nature of the case, I am of the view that the opinion of the scientific expert would in fact facilitate the court below in deciding the rival claims of the parties. Whatever grounds are being raised by the petitioner before this Court touching the merit of the case of the respondent, can effectively be taken by her before the court below at an appropriate stage of the proceeding.
7. In view of the aforesaid facts and circumstance, I do not find any infirmity in the impugned order dated 27.08.2019 passed by the Additional Principal Judge, Additional Family Court, Dhanbad in Original Suit No. 655 of 2017. The present C.M.P. is accordingly dismissed. The petitioner is however at liberty to take all available points with her once the forensic report is received in the court from the CFSL, Kolkata.
(Rajesh Shankar, J.)
Ritesh/-
1 issue framed by the court
Whether an order allowing the submission of electronic evidence for forensic examination in a divorce suit suffered from any infirmity.
Puja Kumari
Jitendra Kumar Mahto
Rajesh Shankar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
