Dismissed

Hadiya Firdouse v. Abdul Vahab @ Vahab

Kerala HC15 Feb 2017OP (FC)/357/2016

Case brief

AI extract

What is this about?

In a null and voidable marriage petition, the High Court set aside orders directing photographs and documents to experts. The Court held expert opinions were unnecessary as the petitioner did not dispute the content, noting signatures could be compared by the Court itself.

What did the court decide?

Orders directing expert opinion for photographs and handwriting were set aside; original petition to be disposed of within 3 months.

Hadiya Firdouse Vs Abdul Vahab @ Vahab — Matrimonial and Divorce | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938

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OP (FC).No. 357 of 2016 (R)

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I.A.NOS.1767/2016 AND 1768/2016 IN O.P.NO.159/2010 ON THE FILE OF THE FAMILY COURT, ERNAKULAM

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PETITIONER(S):

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HADIYA FIRDOUSE, AGED 25 YRS, D/O.K.K.MOHAMED HYDER, KOLLIYIL HOUSE, KODUNGALLUR, THRISSUR DISTRICT. NOW RESIDING AT POST BOX NO.4020, PURCHASING DEPARTMENT, MINISTRY OF INTERIOR, DOHA, STATE OF QATAR.

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BY ADVS.SRI.ALAN PAPALI

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SRI.M.R.DHANIL

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RESPONDENT(S):

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ABDUL VAHAB @ VAHAB, S/O.SULTAN MOIDEEN, KANJIRAPARAMBU HOUSE, VEDIMARA, MANNAM P.O., NORTH PARAVOOR, ERNAKULAM DIST., PIN 683 520.

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BY ADVS. SRI.G.HARIHARAN

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SRI.PRAVEEN.H. SMT.K.S.SMITHA SMT.T.T.SHANIBA SMT.A.ANJANA

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 15-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (FC).No. 357 of 2016 (R)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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------------------------------------EXHIBIT-P1: A COPY OF THE ORDER DATED 25.6.2016 PASSED BY THE FAMILY COURT, ERNAKULAM IN I.A.NO.1767/2016 IN O.P.NO.159/2010.

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EXHIBIT-P2: A COPY OF THE ORDER DATED 25.6.2016 PASSED BY THE FAMILY COURT, ERNAKULAM IN I.A.NO.1768/2016 IN O.P.NO.159/2010.

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EXHIBIT-P3: A TRUE COPY OF THE PETITION IN O.P.NO.159/2010 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT-P4: A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN O.P.NO.159/2010 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM.

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EXHIBIT-P5: A TRUE COPY OF THE PETITION IN O.P.NO.156/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT-P6: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P.NO.156/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM.

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EXHIBIT-P7: A TRUE COPY OF THE JUDGMENT DATED 16.01.2013 IN O.P.(CIVIL) NO.4557/2012 PASSED BY THIS HONOURABLE COURT.

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EXHIBIT-P8: A TRUE COPY OF THE ORDER IN O.P.(FC)NO.163 OF 2014 DATED 8.10.2014.

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EXHIBIT-P9: A TRUE COPY OF THE ORDER DTD.17.8.2015 IN SLP NO.34909 OF 2014 PASSED BY THE APEX COURT.

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EXHIBIT-P10: A TRUE COPY OF THE I.A.NO.1767/2016 IN O.P.NO.159/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM, DATED 24.5.2016.

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EXHIBIT-P11: A TRUE COPY OF THE I.A.NO.1768/2016 IN O.P.NO.159/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM, DATED 24.5.2016.

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EXHIBIT-P12: A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.1767/2016 IN O.P.NO.159/2010 FILED BY THE RESPONDENT

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BEFORE THE FAMILY COURT, ERNAKULAM, DATED 4.6.2016.

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EXHIBIT-P13: A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.1768/2016 IN O.P.NO.159/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM, DATED 4.6.2016.

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EXHIBIT-P14 TRUE COPY OF THE EMAILS SENT TO THE EMAIL ID OF THE BROTHER OF THE PETITIONER WHICH WAS PRODUCED IN THE COUNTER IN O.P.(F.C) NO.355/2016 AS EXTS.R1 (b) AND R1(c)

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EXHIBIT-P15 TRUE COPY OF EXT.R1(e) ORDER DATED 11.08.2011 IN CRL.M.C.NO.2236 OF 2011

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OP (FC).No. 357 of 2016 (R) : 2 :

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EXHIBIT-P16 TRUE COPY OF EXT.R1(f) CERTIFICATE OF MARRIAGE DATED 28.10.2009

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EXHIBIT-P17 TRUE COPY OF EXT.R1(g) AGREEMENT DATED 23.09.2009 EXHIBIT-P18 TRUE COPY OF THE JUDGMENT IN O.P.(F.C)NO.6/2016 OF THIS HON'BLE COURT DATED 03.02.2016

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RESPONDENT(S)' EXHIBITS

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EXHIBIT-R1(a) TRUE COPY OF THE EMAIL SENT ON 26.12.2009 AT ABOUT 7.55 PM BY THE PETITIONER SENT TO THE RESPONDENT

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EXHIBIT-R1(b) TRUE COPY OF THE EMAIL MESSAGE DATED 27.12.2009 SENT BY THE PETITIONER TO THE RESPONDENT EXHIBIT-R1(c) TRUE COPY OF THE PETITION FILED BY THE RESPONDENT AS I.A.NO.1767/2016 IN O.P.NO.159/2010 BEFORE THE FAMILY COURT, ERNAKULAM EXHIBIT-R1(d) TRUE COPY OF THE PETITION FILED BY THE RESPONDENT AS I.A.NO.1768/2016 IN O.P.NO.159/2010 BEFORE THE FAMILY COURT, ERNAKULAM EXHIBIT-R1(e) TRUE COPY OF THE VALENTINE'S DAY GREETING CARD SENT BY THE PETITIONER TO THE RESPONDENT EXHIBIT-R1(f) TRUE COPY OF THE NEW YEAR GREETING'S CARD SENT BY THE PETITIONER TO THE RESPONDENT EXHIBIT-R1(g) TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE MASJID OFFICIALS EXHIBIT-R1(h) TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 28.10.2009 ISSUED UNDER SECTION 13 OF THE SPECIAL MARRIAGE ACT 1954 EVIDENCING THE MARRIAGE OF THE PETITIONER WITH THE RESPONDENT

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EXHIBIT-R1(i) TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER AND RESPONDENT AFTER THE SOLEMNIZATION OF THEIR MARRIAGE TAKEN AT THE HOUSE OF THE PETITIONER AS WELL AS AT THE HOUSE OF THE RESPONDENT EXHIBIT-R1(j) TRUE COPY OF THE ORDER MADE IN CRL.M.C.NO.2235/2011 DATED 11.08.2011 PASSED BY THIS HON'BLE COURT

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EXHIBIT-R1(k) TRUE COPY OF THE FIRST INFORMATION REPORT IN CONNECTION WITH CRIME NO.2121/2012 OF CENTRAL POLICE STATION

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OP (FC).No. 357 of 2016 (R) : 3 :

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EXHIBIT-R1(l) TRUE COPY OF THE COMPLAINT DATED 06.08.2012 FILED BY THE RESPONDENT BEFORE THE ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM

//True Copy//

P.A. To Judge

A.M.SHAFFIQUE

K. RAMAKRISHNAN, JJ.

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============================== O.P.(F.C.)No.357 of 2016

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============================== Dated this, the 15^th day of February, 2017.

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J U D G M E N T

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A.M.Shaffique, J.

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The petitioner challenges Exts.P1 and P2 orders by which, certain documents, namely, photographs, email, New year card, Valentine's day card, authorisation etc., had been sent for an expert opinion and also to a handwriting expert. Two separate orders had been passed in I.A.Nos.1767/2016 and 1768/2016.

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The original petition had been filed by the petitioner herein seeking for a declaration that the marriage under the Special Marriage Act is null and void. During evidence, certain documents had been produced by the respondent herein and he filed I.A.No.1767/2016 to sent the photographs for obtaining scientific evidence.

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O.P.(F.C.)No.357 of 2016 : 2 :

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There is dispute between the parties in regard to the question as to who had taken the photographs. There is no dispute regarding the photographs as such. The Family Court observed that certain photographs of Nikah and emails are denied by the petitioner, stating that it is morphed. On that premise, direction was issued to send Exts.B1 to B8 photographs and emails Ext.B10 series to the Director, CDAC, for expert opinion. The respondent also filed I.A.No.1768/2016, by which, direction had been sought for sending Ext.B12 to B14 to an expert for ascertaining handwriting of the petitioner. The Family Court observed that since the petitioner denied the signature in the documents, a report of a handwriting expert is necessary to establish the genuineness. Accordingly, application was allowed and direction was issued to send Exts.B12 to B14 to a handwriting expert and the respondent was asked to take urgent steps and for an expeditious filing of the report.

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The learned counsel appearing for the petitioner while impugning the aforesaid directions, placed reliance

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O.P.(F.C.)No.357 of 2016 : 3 :

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on the judgment dated 08.10.2014 in O.P.(F.C.) No.163/2014, by which, similar directions had been earlier issued. This Court, while setting aside the impugned order, reserved the right of the respondent to seek for appropriate orders after adducing evidence. It was observed that there was no necessity to send the documents for expert opinion without the evidence being taken in the matter.

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It is therefore contended that a situation has envisaged by Division Bench in O.P.(F.C.)No.163/2014 had not arisen so far. According to the petitioner, if at all the Family Court requires verification of the signature, it could be done by the Court itself under Section 73 of the Indian Evidence Act. As far as Exts.B1 to B8 photographs are concerned, there is no dispute regarding the photographs and the petitioner does not have a case that it has been morphed, whereas, the only issue is as to who had taken the photographs for which the computer from which photographs have been taken, requires to be produced and expert evidence obtained. It is also

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O.P.(F.C.)No.357 of 2016 : 4 :

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contended that Ext.B10 series are email communication which was allegedly sent after the so called marriage to the brother of the respondent. It is contended that no certification as envisaged under Section 65B of the Indian Evidence Act has been produced along with the same and as such, there was impropriety and illegality on the part of the Family Court to have sent the same for expert opinion. Reference is also made to the judgment of the Apex Court in the decision reported in Anvar P.V. Vs.

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P.K.Basheer and Others [(2014) 10 Supreme Court

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Cases 473] where the Apex Court had considered the admissibility of electronic records and the basis on which

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such records could be received in evidence. It is held in paragraph No.17 as under:

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“ 17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A - opinion of Examiner of Electronic Evidence.”

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In regard to Exts.B12, B13 and B14, the learned

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O.P.(F.C.)No.357 of 2016 : 5 :

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counsel for the petitioner submits that the signatures could as well be verified by the Family Court, but, there is no material to indicate that the New year card and Valentine's day card had been given by the petitioner to the respondent. Unless such materials are available, there is no reason why the same should be sent to a handwriting expert.

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On the other hand, the learned counsel appearing for the respondent submits that this Court in the judgment in O.P.(F.C.)No.163/2014 had reserved the right of the respondent to bring in evidence such materials. In so far as there is substantial dispute between the parties regarding the source of the photographs as well as the letters, email, cards etc., it requires proof through an expert and it is well within the jurisdiction of the Family Court to direct expert opinion to be taken before arriving at a final decision in the matter.

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Having heard the learned counsel on either side

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and having perused records, it is rather clear that the evidence is already over and the matter is posted for

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O.P.(F.C.)No.357 of 2016 : 6 :

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hearing, at this stage, when such documents are available before court, it is always open for the Family Court to consider whether the signatures can be compared. In fact, the learned counsel for the petitioner submits that the petitioner did not dispute the signature in Ext.B14 authorisation. According to her, it looks like her signature. Other admitted signatures are also available before Court and therefore, definitely it was open for the Court to compare the signatures and come to a conclusion. Further, execution of documents can be proved by examining the persons involved in the transaction as well. Under such circumstances, when other methods are available for adducing evidence, it is not necessary for the Family Court to refer the matter to an expert which itself is not conclusive and it is only an opinion.

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As far as the photographs are concerned, there is absolutely no issue which requires to be adjudicated. The issue is regarding the source of the photographs which is required to be proved by the respondent who has

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O.P.(F.C.)No.357 of 2016 : 7 :

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produced the same and evidence can be adduced even without sending the same to CDAC. It is contended that the photographs were taken from a computer, in which event the computer itself can be produced and necessary materials can be collected from the same through an appropriate agency. Merely by sending the photographs to CDAC, we do not think that any useful purpose will be served. Learned counsel for the petitioner submits that the petitioner does not have a case that there was any morphing as far as the photographs are concerned. Under such circumstances, we do not think that it was necessary for the Family Court to have send the documents for expert opinion. However, it shall be open for the Family Court to consider the evidence on record and take a proper decision in the matter based on the applicable law.

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In the result, the Original Petition is disposed of as under:

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Exts.P1 and P2 orders in I.A.Nos.1767/2016 and 1768/2016 are hereby set aside. However, setting aside

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O.P.(F.C.)No.357 of 2016 : 8 :

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of the impugned orders does not preclude the Court from considering the evidence on record and taking a proper decision in the matter. The original petition may be disposed of within a period of 3 months from the date of

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receipt of a copy of this judgment.

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Sd/- A.M.SHAFFIQUE, JUDGE

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Sd/- K. RAMAKRISHNAN, JUDGE

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Bb/17/02/2017

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[True copy]

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P.A to Judge

Hadiya Firdouse v. Abdul Vahab @ Vahab

Case brief

What is this about?

What did the court decide?

Hadiya Firdouse v. Abdul Vahab @ Vahab

Case brief

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