A husband's appeal against dismissal of his divorce petition filed on grounds of alleged adultery and cruelty was rejected: email evidence lacked Section 65B certificates, a compact disk recording was unverified by voice analysis, and cited witnesses were not examined; the appeal was dismissed.
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NC: 2024:KHC:23361-DB MFA No.1481/2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JUNE, 2024 PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.1481 OF 2014 (FC)
BETWEEN:
LOKESH JAGANNATH S/O JAGANNATH AGED 31 YEARS, MAJOR, HINDU R/O NO.139, II-B CROSS B E M L LAYOUT BASAWESHWARANAGAR BANGALORE – 560 079. …APPELLANT
Digitally signed by K S RENUKAMBA Location: High Court of Karnataka
(BY SMT.SUNANDA SARKAR, ADV., FOR SRI. DEEPAK J, ADV.,)
AND:
WORKING AT: TATA CONSULTANCY SERVICES NO.69/2, SALARAPURIA G R TECH PARK JAL BUILDING, MAHADEVAPURA K R PURAM, BANGALORE 560 066.
NC: 2024:KHC:23361-DB MFA No.1481/2014
PERMANENT ADDRESS: PLOT NO.235 N G O COLONY, JEWERGI ROAD GULBARGA - 585 103.
…RESPONDENTS
(BY SMT. M.P. GEETHADEVI, ADV., FOR R1 SRI. K. CHANDRANATH ARIGA, ADV., FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:31.01.2014 PASSED IN M.C.NO.2143/2008 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(i) AND (i-a) OF HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard.
and 2 alleging that respondent No.1 is leading adulterous life with respondent No.2. In the petition, he claimed that during their stay in Germany, respondent No.2 used to visit his house, and petitioner, respondents and their colleagues used to go for picnics and trips. During that time also, respondent No.1 used to have undue intimacy with respondent No.2. During one of such trips his colleague Sudhir Nagaraj found respondent Nos.1 and 2 together in obscene manner and informed the petitioner about the same, respondent No.1 used to pressurize him to bring respondent No.2 to the house and she was not taking care of the child. She exchanged lot of emails, Sms, phone calls with respondent No.2. The adulterous activities of respondent Nos.1 and 2 were witnessed by Shankar - uncle of respondent No.1. A meeting was conveyed in the house of respondent No.1 at his instance, in that meeting on confronting respondent No.1, she admitted in front of her Uncle Shankar, brother Raju, her grandmother and other family members about her relationship with respondent No.2. Her brother pleaded with the petitioner to forgive his sister and give her a chance. Even thereafter, she continued her adulterous activities. By such acts of respondent No.1, he is subjected to cruelty and he claimed
that it is impossible for him to continue matrimonial life. Thus, he sought decree for dissolution of marriage.
[email protected], therefore, the certificate under Section 65B of the Evidence Act was not required. Relying on Section 14 of the Family Courts Act,1984 (for short ‘Family Courts Act’) she contends that the Evidence Act is not strictly applicable for Family Courts proceeding and for effectual adjudication of the matter, the Court may receive evidence, any report, statement or documents irrespective of any bar under the Evidence Act. She submits that the trial Court has overlooked the material admissions of respondent No.1 i.e. RW-1. She submits that, the impugned judgment and order suffers illegality.
be recorded in Ex-P2 Compact Disk. Despite that, the petitioner
did not produce certificate as required under Section 65B of Evidence Act nor sought reference of Ex-P2 to the lab for voice test analysis. Therefore, the trial Court was justified in rejecting the petition on the ground of adultery and cruelty. Thus she seeks dismissal of the appeal. In support of her submissions she relies on the judgment of Arjun Pandit Rao Khotkar Vs.
Kailash Kushan Rao Gorantyal and others (2020) 7 SCC 1
ANALYSIS:
petition was that respondent No.1 was leading permitting him physical proximity, because of her relationship with respondent No.2. The burden was on him to prove that respondent No.1 was living adulterous life with respondent No.2. As such allegation is serious in nature, legally acceptable evidence is required in proof of the same. To prove the said allegations, the petitioner relied on Ex.P3 to P145 allegedly containing E-mails exchanged between respondent Nos.1 and 2. Respondent Nos.1 and 2 both denied them in the statement of objection.
e-mail since they were accessible to her husband also. Secondly, certificate as required under Section 65B of the Evidence Act was not produced to prove those e-mails.
Khotkar’ s case referred to supra has held that, unless the certificate required under Section 65B of the Evidence Act is produced, such secondary evidence namely printout of e-mails are not admissible in evidence, leave apart proof of the same. Therefore, the Trial Court was justified in rejecting the said e- mails Exs.P3 to P145 as proof of alleged exchange of objectionable e-mails between respondent Nos.1 and 2.
that regarding conduct of respondent Nos.1 and 2 a panchayath was convened in the parental house of respondent No.1 and in the said panchayath respondent No.1 confessed about her adulterous life and her uncle and grandmother admonished her. It was further alleged that brother of respondent No.1 pleaded to show mercy by forgiving respondent No.1 and all those conversations were found in Ex.P2. Firstly, to prove such panchayat, the petitioner did not examine any of the persons who participated in said panchayat. Secondly, to prove that the
alleged conversation contained in Ex.P2 was the voice of respondent No.1 and other persons stated by him, no requisition was made by the petitioner to the Court to send that for voice identification test or lab test, despite respondent No.1 denying the voice. Therefore, Trial Court was justified in rejecting Ex.P2 also from the evidence.
even before their marriage and he willingly married her. After six years of the marriage, he comes up with allegations that his father-in-law was an alcoholic and smoker.
NC: 2024:KHC:23361-DB MFA No.1481/2014
no reasons either to the Trial Court or there are grounds for this Court to exercise the discretion under Section 14 of the Family Courts Act to receive inadmissible documents or rely on them. The appeal deserves no merit. Hence the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
ABK/PKN List No.: 1 Sl No.: 26
2 issues framed by the court
Whether dismissal of the divorce petition alleging adultery and cruelty was sustainable given electronic evidence lacked Section 65B certification?
Whether Section 14 of the Family Courts Act justified relying on otherwise inadmissible documents?
Colour shows how this judgement treated each authority
Arjun Pandit Rao Khotkar v. Kailash Kushan Rao Gorantyal and othersRelied on¶15
Arjun Pandit Rao Khotkar Vs. Kailash Kushan Rao Gorantyal and others (2020) 7 SCC 1 · Who else cites this
4 provisions across 4 enactments
Lokesh Jagannath
Smt. Ranjeetha (Rekha)
Chandrashekar Deshmukh
K.S. Mudagal
Vijaykumar A. Patil
As recorded by the court registry
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