(Judgement) HC: Recorded conversation on CD is admissible evidence in Family Court

Bench: R S Dalvi

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PGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O.O.C.J.

Notice of Motion No.8 of 2010

IN

Suit No.16 of 2008

Mrs.Havovi Kersi Sethna … … Plaintiff v/s.

Mr.Kersi Gustad Sethna … … Defendant

Mr.Narayan Suvarna i/by Mrs.Ansuya Dutt for Plaintiff.

Ms.Taubon F. Irani for Defendant.

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CORAM : SMT.ROSHAN DALVI, J.

Date of reserving the order : 14th January 2011 Date of pronouncing the order : 28th January 2011

ORDER :

1.Parties are wife and husband. The Petition for divorce between the parties and other ancillary reliefs is pending trial. The wife, who is the Petitioner, is under cross-examination. The husband relies upon certain handwritten diaries of the wife as well as Compact Disk (CD) on which conversation between the wife and the husband has been recorded by the husband on certain dates. The husband has produced the transcript of the said conversation. The husband has 2 NM-8

applied for verification of the handwriting of his wife in the diaries and the voice of the wife in the taped conversation on the CDs. The wife admits the handwriting in her diaries. That can be produced in evidence. Hence the husband does not press the relief in that behalf. Aside from the diary, there is one line written by the wife on a certain menu of her catering service which is also admitted by the wife.

2.The parties are at dispute with regard to the taped conversation on the CDs. The husband has not yet filed his affidavit of documents. He has, therefore, not relied upon any specific document. The husband has, however, served upon the wife inter alia the CDs as well as the transcript. These are the documents referred to by the husband in paragraph 22 of his written statement. The reference runs thus:

On several occasions thereafter the Defendant had occasion to record the Plaintiff’s conversation where she has told the Defendant to leave her father s house, as she wanted a divorce.

It is contended on behalf of the wife that the taped conversation is not relied upon as a document. It is not referred to as a document and hence the husband 3 NM-8

cannot use it as a document in evidence. It is also contended by the wife that the affidavit of documents is not filed and the instrument on which the initial conversation was recorded is not produced. The husband could have recorded it on a tape recorder, audio cassette, MP-3 player, Dictaphone, computer or even on his mobile phone. That recording is not produced and inspection of that recording is not given and hence the wife contends that the CD and the transcript cannot be used by the husband.

3.The wife has neither admitted nor denied the conversation. The husband seeks to use it in her cross- examination.

4.The elementary principle of recording evidence must be first considered. Evidence consists of examination-in- chief and cross-examination. A party is required to offer for inspection and produce the documents relied upon by him in support of his case. This is required in his examination-in-chief. This contains the oral and documentary evidence.

5.Order VII Rule 14 of the Civil Procedure Code (CPC) deals with the documents of the Plaintiff and Order VIII Rule 1-A of the CPC with regard to the documents of the Defendant. The aforesaid orders and rules run 4 NM-8

thus:

14. Production of document on which plaintiff sues or relies. (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to 5 NM-8

document produced for the cross-examination of the plaintiff s witnesses, or handed over to a witness merely to refresh his memory.

1-A. Duty of defendant to produce documents

upon which relief is claimed or relied upon by him.- (1)Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his

defence or claim for set-off or counter-claim, he shall enter such document in a list, and

shall produce it in Court when the written

statement is presented by him and shall, at

the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

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(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff s witnesses, or

(b) handed over to a witness merely to refresh his memory.

Besides this, Order XIII deals inter alia with the production of documents. This relates to production by both the parties, the Plaintiff and the Defendant. Under Order XIII Rule 1 of the CPC, the original documents are required to be produced by the parties and received by the Court. Order XIII Rule 1 runs thus:

1. Original documents to be produced at or

before the settlement of issues.-(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the

copies thereof have been filed alongwith plaint or written statement.

(2) The Court shall receive the documents so produced:

Provided that they are accompanied by an 7 NM-8

accurate list whereof prepared in such form

as the High Court directs.

(3) Nothing in sub-rule (1) shall apply to

documents-

(a) produced for the cross-examination of

the witnesses of the other party; or

(b) handed over to a witness merely to refresh his memory.

6.It is important to note that in sub-rule (4) of Order VII Rule 14, sub-rule (4) Of Order VIII Rule 1-A and sub-rule (3) of Order XIII Rule 1 of the CPC, an exception is carved out for documents required to be produced for the cross-examination of the Plaintiff s witness under Order VII Rule 14 and Order VIII Rule 4 and for the cross-examination of the witnesses of the other party (that is either party) under Order XIII Rule 1.

7.This is the most necessary incident of the exercise of cross-examination. The very purpose of the cross- examination will be frustrated, if the documents with which a witness of the other side of the Plaintiff s witness is to be confronted is shown to or inspected by 8 NM-8

that party earlier. The Court is concerned with the determination of the truth. Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. This takes place in a cross-examination. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner. Consequently, in the cross-examination of a party any document can be produced and the witness under cross- examination can be confronted therewith. Similarly any document can be produced to that end for the witness to refresh his or her memory.

8.The Defendant s Advocate seeks to bring out some facts in the cross-examination before the Court Commissioner. It is not known why the Defendant should have at all produced his CDs or even transcript thereof at a stage before his affidavit of examination-in-chief and his affidavit of documents is filed.

9.Of course, the Defendant would have to offer for inspection the documents which he would be relying upon to prove his case in his own evidence. Those are essentially the documents not required for the cross- examination of the Plaintiff or his or her witnesses only. The Defendant, however, has a right and an opportunity to disprove the Plaintiff s case. It is for 9 NM-8

the Plaintiff to prove his or her case. The Plaintiff has to prove that case by oral or documentary evidence. The Plaintiff would, therefore, have to rely upon and produce all the documents in support of such case. But the Plaintiff s witness, who is to be cross-examined upon the evidence of the Plaintiff to prove the case of the Plaintiff, can be shown any document produced by the Defendant for the first time in his or her cross- examination or for refreshing his or her memory. This is the specific allowance in sub-rule (4) of Order VII Rule 14 and Order VIII Rule 1-A.

10.However, the Defendant would have to prove the specific case made out by him in his pleadings which may be other than the case of the Plaintiff. It would be for the Defendant to produce oral and documentary evidence in support of such a case. Those documents would certainly have to be offered for inspection. Those documents would certainly have to be relied upon in the affidavit of documents. The Defendant would then alone be entitled to rely upon those documents in support of his case. This would apply to those issues, onus on which lies entirely on the Defendant.

11.But the Defendant has an additional right. That is the right of cross-examination of the Plaintiff and the Plaintiff s witnesses to disprove the case of the 10 NM-8

Plaintiff without proving his own case. The Defendant may not lead his oral evidence. The Defendant may not have to refer to rely upon, produce and offer for inspection his own documents, if he has no specific case that he might want to prove. The case of the Defendant would come up for proof after the Plaintiff has completed his or her evidence along with the evidence of his or her witnesses in support of the Plaintiff s case.

12.In this case, the Defendant may or may not have to prove the conversation to obtain any relief. He may require to only prove the conversation to disentitle the Plaintiff from obtaining the reliefs claimed by the Plaintiff.

13.For that purpose, the Defendant would be required to produce the taped conversation. The Defendant would be entitled to ask such question as he deems fit to the Plaintiff. It would be dependent upon the Plaintiff s answers that the Defendant may consider leading evidence himself or refrain from leading any evidence. The Defendant would then have to produce his oral evidence and the documentary evidence coupled with the affidavit of documents in support of his case. At that stage the Defendant, who requires to have the voice of the Plaintiff verified, would have to produce the CD 11 NM-8

and any other document, including the instrument on which the conversation was recorded. In fact, upon the CD and the transcript offered by the Defendant as his own documents to the Plaintiff, no notice to admit or deny the taped conversation is shown to have been given. That would have cleared the issue. Though Counsel on behalf of the Plaintiff has admitted the handwriting in the handwritten diaries and the menu, she has not made any such statement of admission specifically before the Court with regard to the taped conversation made available on the CD. Under those circumstances, her cross-examination on that aspect cannot be avoided and would have to be undertaken. It would be for the Plaintiff to admit or deny partly or fully the aforesaid averment in paragraph 22 of the written statement of the Defendant to avoid, or accept the cross-examination on that point. So much for the cross-examination of the Plaintiff and the reliance of the Defendant upon the taped conversation on the CDs.

14.So far as the CD itself is concerned as a documentary evidence, Counsel on behalf of the Defendant has relied upon the case of R.M. Malkani vs. State of Maharashtra, AIR 1973 SC 157. In paragraph 14 of the judgment, the tape is held to be primary and direct evidence of what has been said and recorded. However, the CD sought to be relied upon by the 12 NM-8

Plaintiff is a copy obtained by the mechanical/electronic process of having the original tape recorded conversation uploaded on a computer from the original electronic record and copied on the CD. Such copy is, therefore, secondary evidence under Section 63 of the Evidence Act and, therefore, can be used only upon production of the original record of such taped conversation under Section 65B of the Evidence Act.

15.Further in the case of R.M. Malkani (supra), tape recorded conversation is held admissible if it is relevant, if the voice is identified and the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape recorded conversation. It is observed to be comparable to a photograph of a relevant incident and hence admissible under Section 7 of the Evidence Act. In that case, there was no dispute about the identification of voices. The matter, which was tape-recorded was relevant to the issue. There was no controversy of any portion of the conversation being erased or mutilated. Party whose voice was recorded was given full opportunity to test the genuineness of the tape- recorded conversation. It was considered as a document admissible in evidence.

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16.The three provisos set out in that judgment are important. The conversation has to be relevant; this is a case for divorce in which the taped conversation is alleged to be relating to the Defendant having been told to leave the house of the Plaintiff s father as she wants a divorce. Upon that fact it becomes relevant to consider that document. The identification of the voice can be made initially by the Plaintiff herself by admitting that that was her voice in the conversation. If that is not done, the Defendant can identify the voice himself or through any other witness. If the Defendant or the Court requires, it may get the voice identified through an expert. That would not be required in every case. The forensic evidence, prayed for by the Plaintiff, would be required depending upon the facts of the case which would emerge in the cross- examination and depending upon the requirement of any identification or further identification. The accuracy of the tape-recorded conversation is of utmost importance since the document, which is a CD having tape-recorded conversation, is liable to eraser or mutilation. It would be for the Defendant to show that it was the original recording as mentioned by the Defendant himself. This could be done by producing the initial record or the original electronic record. This original electronic record, which is primary evidence, is the instrument on which the original conversation is 14 NM-8

recorded. The Defendant has not produced that evidence. That document would be contained in such an instrument. The Defendant has not shown the mechanical/electronic process by which the CD was obtained. The Defendant has relied upon the CD per se. That, being a copy, is secondary evidence. At the stage at which the CD is sought to be produced (that is in the cross-examination of the Plaintiff), the Defendant is permitted not to produce the original electronic record. The copy of such record, being the CD, can itself be used for confrontation in the cross-examination. Much will depend upon the answers in the cross-examination by the Plaintiff. If however, the Defendant desires to set up a specific case, for which the evidence is contained in the CD, he would be required to satisfy the aforesaid three tests, more specially the test of accuracy by producing the original electronic record.

17.It may be mentioned that the tape-recorded conversation can be heard by the Court itself by playing it over. It is observed in the case of R.M. Malkani (supra) that the Court would be acting on real evidence if it treats the intonation of the words in such tape-recording being played over to the Court bearing in mind that it could be altered while admitting it in evidence. That, of course, can be done as shall be seen in another case of Kerala High Court 15 NM-8

which shall be considered presently.

18.It may be mentioned that the Defendant could have produced the same evidence by a non-electronic mode by a manual human source. If a witness was present at the time of the conversation between the Plaintiff and the Defendant, the Defendant could have led oral evidence which could have been corroborated by the witness. In a tape-recorded conversation, the electronic mode substitutes the human evidence. This aspect has been well observed in paragraph 18 in the case of R.M. Malkani (supra) thus:

If the conversation were relayed on a microphone or an amplifier from the telephone and the police officers heard the same they

would be able to give direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they recorded as a result of voluntary permission granted by Dr.Motwani. The tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible.

That judgment further held that Articles 20(3) and 21 of the Constitution or Section 162 of the Criminal 16 NM-8

Procedure Code were also not offended by a tape- recorded evidence.

19.In the case of Pootholi Damodaran Nair vs. Babu, V.K., 2005 (2) ILR 145, the Kerala High Court considered the request of a party to play a magnetic tape produced in Court. The request was turned down by the District Munsiff. The order rejecting such request was set aside holding it to be an indiscretion of the Court. The tape and the transcript were marked in evidence upon the Defendant s son having taped the conversation containing discussion between the Plaintiff and the Defendant. The tape was sought to be played in Court for the identification of the voice of the person whose voice it was professed to be and for establishing the authenticity and correctness of the recording. The learned District Munsiff rejected the application on the ground that it came after closing the evidence of the Petitioner, it was not brought out from proper custody and was not deposited in the official record. Holding that electronic record was a document under Section 3 of the Evidence Act in line with the Information Technology Act, 2000 and considering the Supreme Court judgment in the case of Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3, it was held that tape record of the conversation and the transcript, which were rightly admitted and marked in 17 NM-8

evidence, were required to be examined by the Court to see their genuineness as the tape record was admissible under Section 7 of the Indian Evidence Act. The conditions laid down in the judgment of the Supreme Court in Ram Singh (supra) were set out in that judgment. The very first condition is the identification of the voice in the tape record. It is rightly observed that where the voice is denied by the maker, it will require strict proof to determine whether it was really his voice.

20.The Defendant has not called upon the Plaintiff to admit or deny the voice. The Plaintiff has not admitted or denied the voice. Perhaps that would now be done in the cross-examination itself. That can be done even before the CD is marked in evidence because it is a document required to cross-examine the witness of the other side. If it is identified by the Plaintiff and admitted to be her voice, no further exercise need be done. If it is not identified by the Plaintiff, it can be identified by the Defendant. Upon such identification it would have to be marked in evidence. The verification of such identification would have to be done by the Court itself by playing the record, for which no application is yet made, but such an application has been allowed under that judgment. Of course, the accuracy of the statements would have to be 18 NM-8

proved by direct or circumstantial evidence. The proof is in the domain of the Defendant either in the cross- examination of the Plaintiff or in his own evidence. The recorded conversation could be used even to contradict the Plaintiff s case, provided its accuracy is shown.

21.It must be mentioned that evidence is to be considered from three aspects; admissibility of evidence, recording of evidence and appreciation of evidence. It is settled law that tape recorded conversation is admissible in evidence. What must be of importance is how the tape recorded conversation is to be recorded as evidence and appreciated thereafter. Recording can be in the cross-examination of the other side and/or in the evidence of the recorder himself. The appreciation of evidence would require consideration of the aforesaid three requirements; identification, relevancy and accuracy. It is left to the Defendant to pass those tests. If the tests are not passed, the tape recorded conversation would be of no use in effect ultimately.

22.That has been held in the case of Tukaram S. Dighole vs. Manikrao Shivaji Kokate, in Civil Appeal No.2928 of 2008 decided on 5th February 2010. In that case a cassette placed before the Court was discarded from 19 NM-8

evidence. This was the cassette stated to have been produced from the custody of an Election Commissioner s office. It was taken to be a public document. It was held that mere production of the audio cassette even certified by the Election Commissioner is not conclusive of the fact that what is contained in the cassette was true and correct. This is on par with the certified copy of any document produced from public record. Such a document would show that it was a document filed in the public office and is a true production of whatever was filed in the public office. It however cannot prove the truth of the contents of the document merely by the production of even its certified copy by the public office as held in the case of Om Prakash Berlia vs. United Trust of India, AIR 1983 Bombay 1.

23.In the case of Tukaram (supra), the Petitioner produced the VHS cassette on record. The Petitioner produced no evidence to indicate that the record was a true reproduction of its contents. In fact, the Petitioner did not produce any cogent evidence regarding the source and manner of the acquisition of the cassette and the authenticity of its contents. It was, therefore, held that it could not be read in evidence despite the fact that it could be a public document. This was, therefore, in the domain of 20 NM-8

appreciation of evidence. The authenticity of an electronic record such as a CD or a cassette would be determined by the proof of the original electronic record. This proof may be given by production of that record itself which can be compared with the CD produced by the party in a civil litigation such as the Defendant in this case or any other evidence, direct or circumstantial, which the Court would then consider, examine and appreciate. The standard of proof of such authenticity and accuracy of such an electronic record has been held in paragraph 20 of the judgment to be more stringent as compared to the other documentary evidence given its propensity for misuse by alteration, interpolation or mutilation. It is, therefore, directed to be received with caution. Consequently, in that case when the party who produced the record did not lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by the Respondent or his agent, which he was incumbent to be proved either himself or through his witness who is the maker of the record, it was held not to be considered in evidence.

24.Counsel on behalf of the Plaintiff has relied upon the case of Lalji s/o Bansanarayan Choubey vs. Jiyalal Chanvan & anr. 2009(2) Maharashtra Law Journal 565 to contend that the actual tape recorder or the instrument 21 NM-8

on which it was recorded had to be produced and the CD had to be sealed and relied upon in the Defendant s affidavit of documents before any relief can be granted in this application. The Defendant has given a copy of the CD and its transcript to the Plaintiff. The exercise of giving inspection of the document, as required by the procedure established under the CPC, is completed. The Defendant is not required to file his affidavit of documents and rely upon any specific document during the Plaintiff s cross-examination. It would be in the discretion, sagacity and wisdom of the Defendant to prove the tape recorded conversation on the CD in the manner he deems fit, provided however that the accuracy of the conversation is proved to the satisfaction of the Court for it to be considered in evidence, the admissibility of the CD notwithstanding.

25.The requirement of sealing the recorded conversation would not be applicable in this case. That requirement is of essence in a criminal case where during investigation the conversation of a party is recorded by the investigating officer. He would certainly be required to seal the tape recorded conversation and keep it in a safe custody so as to play before the Court at the time of trial. When the Defendant himself has recorded the conversation of the Plaintiff as a party in a Civil Suit who is required to keep custody 22 NM-8

of his own documents, there is no question of the requirement of sealing. It has nevertheless to be shown to be accurate and untampered with. This is in line with the only requirement of the Court which is to ascertain the truth of the case of the parties. Once the Court is satisfied about the truth of the tape recorded conversation, it can be used in evidence to determine the case on merits. Consequently, the observation of the Court in paragraph 3 of the judgment in the case of Pootholi (supra) that the conversation of the witness on a tape recorder can be shown to the Court by producing the tape record in support of the assertion that certain statement was made in his presence rules out any further requirements and formalities except for showing the accuracy of the tape recorded conversation. In fact, the observation of the Court in paragraph 7 of the judgment concluding that the tape record was admissible as primary evidence with the aforesaid provisos of accuracy, identification and relevancy shows that it was on par with human evidence once it is replayed in the Court or proved by forensic evidence thus:

Each received it at the same time the one

recording it in the human memory, the other

upon a piece of tape.

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Consequently, it has considered the judgment of the Supreme Court in the case of Rama Reddy vs. V.V. Giri, AIR 1971 SC 1162 in which it was held that the previous statement recorded on tape could be used not only to corroborate the evidence given by the witness but also to contradict the evidence given before the Court as well as to test the veracity of the evidence and also to impeach his impartiality upon holding that it was primary and direct evidence admissible as to what has been said and picked up by the recorder. Further it is observed that the production of the tape recorded conversation to comply with the aforesaid provisos can be made in any mode:

There can be no straightjacket formula .

26.Therefore, it would be vain to suggest that because the CD was not sealed prior to its production, it cannot be admissible or used in evidence. This is a civil trial. The Defendant himself has recorded the conversation and produced the CD thereof. The Defendant could not have recorded it directly on the CD. The Plaintiff had to have an electronic process on an electronic instrument to record the conversation on the CD. It is for the Plaintiff to produce it. It is for the Court to consider and appreciate it. There is no question of sealing of a conversation recorded by a 24 NM-8

party to the civil lis himself. The sealing requirement is only in criminal trials. That is because the investigating officer records certain conversation either on a telephone to which a recorder has been appended or any other instrument to record the voice of a party under investigation. The investigating officer is required to keep such document, obtained in the course of his investigation safe from it being misused or tampered by anyone else until it is produced and used in the criminal trial. He must, therefore, seal what he has recorded and keep it safe from tampering for the examination by the Court. This would be just as he would seal any other property seized by him to be produced as an article in a criminal trial. This entire procedure is not required in a civil trial and hence the argument that because it is not sealed, it cannot be used in evidence is incorrect. The case of Lalji (supra) was of a criminal trial on a dishonoured cheque under Sections 138 and 139 of the Negotiable Instruments Act. In that case origin of the conversation recorded was left doubtful. Consequently, the most important requirement of producing such an electronic record of accuracy was not satisfied. That aspect was in the domain of appreciation of evidence and not admissibility of evidence.

27.In the interesting case of R.K. Anand vs. Registrar, 25 NM-8

Delhi High Court, 2009(10) Scale 164 at page 220, the original electronic materials upon which the sting operation by a journalist was based was held not needed to have been taken in the Court custody. In that case in a sting operation a particular conversation between two persons was recorded. Based upon the electronic tape recorded conversation played before the Court, contempt notices came to be issued for subverting and interfering with the course of justice in a criminal trial. In that case the copies of the original sting recordings were called for and seen by the Court. The original microchips and the magnetic tapes were allowed to be retained in the custody of the journalist of the TV channel. Upon the case that that was an incorrect and fatal procedure, the Supreme Court considered the rationale behind it thus :

If the recordings on the microchips were fake from the start or if the microchips were morphed before notice was issued to the TV

channel, those would come to the court in that condition and in that case the question whether the microchips were genuine or fake/morphed would be another issue. But once the High Court obtained their copies there was no possibility of any tampering with the microchips from that stage. Moreover, the High 26 NM-8

Court might have felt that the TV channel with its well equipped studio/laboratory would be a much better place for the handling and conservation of such electronic articles than the High Court Registry.

The Supreme Court, therefore, concluded that on the facts of the case, there was no lapse on the part of the High Court in leaving the microchips in the safe custody of the TV channel. It is, therefore, seen not to be straightjacket formula. Consequently, holding that all tape recorded conversation must be sealed without considering its intrinsic source or its custody with a party would be an exercise devoid of application of mind.

28.The dispute between the parties is not ambiguous to either of them. The ambit of evidence has, therefore, to be set out. The Defendant is entitled to rely upon the recorded conversation on the CD by the fact of production of the CD in the cross-examination of the Plaintiff. If the Plaintiff admits the contents, it would be read in evidence. If the Plaintiff disputes the contents, the Defendant would have to prove, by direct or circumstantial evidence in his own examination-in-chief, the accuracy of the recorded conversation. For that proof, the Defendant may produce 27 NM-8

the original electronic record itself. The Defendant may seek to play it before the Court to have the voice of the Plaintiff, hitherto disputed, identified in Court. The Defendant may himself identify the voice and get it produced in evidence and apply for playing it on record for the Court to appreciate the identified document being the recorded conversation on the CD. The Defendant may produce any other circumstantial evidence to prove the authenticity of the CD as he would for any other documentary evidence. The Defendant would also be entitled, but as a last resort, to have the forensic evidence to identify the voice of the Plaintiff by having the voice of the Plaintiff recorded as an admitted document and compared by an expert in the forensic laboratory to verify that voice with the voice on the taped conversation on the CDs.

29.It is argued on behalf of the Defendant that the Defendant has taken out the application well in advance for the forensic report to be obtained. The application is, of course, not premature. However, the application involves the requirement of recording of Plaintiff s voice and then comparing it with the already recorded voice on the CDs much as the verification of the admitted and disputed signatures of the parties would be. However, the Plaintiff may choose to admit the contents of the CD or whatever is stated in paragraph 28 NM-8

22 of the Written Statement, the entire exercise sought by the Defendant would be avoided since admitted facts need not be proved. Since much would depend upon the Plaintiff s own evidence, the Plaintiff need not be taken through the exercise of having her voice recorded and then verified by the forensic expert at present. However, after the Plaintiff s cross-examination is completed and the Defendant considers production of CD as his own document and relies upon it in the affidavit of documents, the Defendant would be entitled to prove its accuracy through any of the aforesaid modes. For that purpose, the Defendant shall be entitled to prove the tape recorded conversation through the recording of the voice of the Plaintiff and having it verified by the forensic expert as prayed for by him in prayer (ii) of this Notice of Motion. Order accordingly.

30.The Notice of Motion is disposed of accordingly.

(SMT.ROSHAN DALVI, J.)

Dowry harassment likely to become a bailable offence

This seems like a positive move in the correct direction, let us see how long this takes to put in place, will it take years or decades to implement, then it is just Bull? 

Feb 24, 2011


JAIPUR: The Union law department has launched an exercise to tone down the law on matrimonial cruelty, including cases of dowry harassment. Effectively, dowry harassment may soon become a bailable offence.

To protect social fibre of family life and check alleged misuse of the law, the department is contemplating changes in Section 498-A of the IPC that defines the offense of matrimonial cruelty.

Section 498-A was inserted into the IPC by an amendment in 1983. Offenders, including husband or any other family member, are liable for imprisonment as well as a fine and the offence is non-bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim (wife) or by designated relatives.

The law department is now exploring viability of changing the law to make the offense, including dowry harassment, as a bailable and compoundable. ''Relevant data and opinion are being sought from states to evaluate the misuse of the law and possibilities of changing it,'' says Justice (rtd) Shiv Kumar Sharma, member of the National Law Commission.

The panel will hold meetings with police departments across states to collect statistics regarding ''misuse'' of the law and also about genuine cases of dowry harassment and other forms of matrimonial cruelty.

"After husband's arrest, possibility of reconciliation becomes difficult, so the idea is to strike a balance," said Sharma. But, he said the panel was equally concerned about genuine cases and data regarding the same was also being collected. 

Pravanjan Mallick in jail for beating wife

Feb 16, 2011

Former skipper of Orissa cricket team Pravanjan Mallick was sent to jail here on Tuesday, a day after police registered a case against him for allegedly assaulting his wife Cini Mohanty. Mallick was arrested late on Monday night hours after Cini lodged an FIR against him at Mahila police here.

The sub-divisional judicial magistrate (SDJM) here rejected the bail application of Mallick, who was booked under Sections 307 (attempt to murder), 498A (torture), 323 (assault) and 506 (threaten to kill) of IPC. "We have moved the upper court for bail. The hearing is on Wednesday," Pravanjan's lawyer Raju Khuntia said. In the FIR, Cini alleged Mallick beat her up and threw her out his car near MPG Square on Valentine's Day, a police officer said. Both of them have been staying separately ever since Mallick filed divorce petition nearly a year ago, the police officer added.

Cini on Tuesday softened her stand towards her husband and appealed to the court to grant him bail. Confusion prevailed after lawyer Khuntia said, "Cini filed a petition in court seeking compromise with her husband in amicable manner." But Cini denied it and told TOI, "I simply submitted a written application in court and appealed to grant him bail. I did not file any compromise petition. Nor am I going to withdraw my FIR. Though I do not want him to stay in jail, but I want the case to go on," she said. Pravanjan, who played over 80 first class cricket matches before retiring last year, did not utter a single word over the allegations leveled against him by his wife.

Man Tortures Wife By Burning Her Breasts and Vagina, Tearing Off Her Nipple

Feb 18, 2011

If the allegations contained in court papers are true, then Gregory Longoria Jr. is a very sick dude.

Documents show he's been accused of sexually abusing his estranged wife by -- and this is only part of what he's alleged to have done -- using hairspray and a cigarette lighter to burn her vagina and one of her nipples, and then pulling the burnt nipple from the body.

This was in the course of tying her up, gagging her, beating her savagely around the face and trying to smother her.

The Media had the story first, and the Harris County Sheriff's Office will be holding a press conference on the case later today.

Court documents say Longoria went to his wife's parents' house and ordered her and their one-year-old daughter to come with him.

At an apartment in the 17700 block of Wayforest, he forced her to strip and began taking "obsene and erotic" photographs of her.

That quickly descended into the sadistic madness outlined above.

Longoria has a record that showed a checkered past: He's been arrested for theft, attempted murder, aggravated assault with a deadly weapon, aggravated assault of a family member and unlawfully carrying a weapon, Media reports.

Court documents indicate the wife will require reconstructive surgery and be permanently disfigured from the attack.

Experts favour barring ex-parte divorce by foreign courts

Here go the bloody Feminazi's again, these witches never seem to stop there games, and of course the government plays along. The Congress government works hand in Hand with these witches, remember this at Election time.
The Indian government is once again living in a dream world and playing with Mens lives, it is very well known fact that most marriages break down for various reasons, and its also a fact that most divorces are iniciated by the women. These Feminazi's want there cake and eat it also. Looks like the Indian NGO's want to Issue Foreign Visa's soon.
This is just a way for these faminazi witches to gain some spotlight in the media  and keep barking at the Moon. 

Feb 15, 2011

Inclusion of domestic discord cases in scope of extradition treaties, barring ex-parte divorce by foreign courts to women abandoned abroad and simplification of procedure for extradition of errant husbands are some of the measures being looked at to address problems faced by Indian women married to Non-Resident Indians.

Highlighting the inadequacies of existing legislations in NRI marriages, experts at a panel discussion on the issue opined that certain provisions need to be there regarding international protocol and jurisdiction issues. They favoured simplification of procedure for quick issuance of visa by foreign missions in India to deserted women to enable them to contest the proceedings filed by NRI/PIO husband in a foreign land. Introduction of a system of cross-check or consent when an NRI/PIO husband wants to cancel sponsorship of his spouse's visa, barring ex-parte divorce by foreign courts in the case of marriages solemnised in India as per Indian law and not permitting deportation of the woman in order to let her contest the case were some of the other points of discussion. The experts also demanded that cases of domestic discord should be included in the scope of extradition treaties. The seminar was organised by the National Commission for Women in co-ordination with the Ministry of Overseas Indian Affairs. The NCW demanded recognition as an authorised body to directly file applications before foreign courts and foreign missions on behalf of aggrieved women wherever required. Minister for Women and Child Krishna Tirath said that the government was doing all it could to address the issues related to NRI marriages. There should be compulsory registration of NRI marriages, Additional Secretary in the Ministry of External Affairs Basant K Gupta said adding that there should also be a sworn affidavit honouring marriages solemnised in India. NCW can immediately approach the Superintendent of Police and present all the facts to assist the officer concerned to issue the lookout circular against the opposite party. Tirath said officers from the Indian Embassy in various countries should visit the NRI homes to ensure the well-being of the girls' who are married to NRI men. NGOs and religious bodies could put up informative pamphlets and boards to register NRI marriages. This will be extremely helpful in case of desertion or legal proceedings, she said.

Doubt in the authenticity of real offences

Oct 31, 2010

Section 498A of IPC, a woman-oriented law under which offences for dowry harassment are registered, has ironically not helped those it was intended for. Rather it has acted as a catalyst in expediting quick divorces and disturbing the balance of the family system. 

The rampant misuse of the 498a is at the cost of diminishing faith in the authenticity of real offences, which is a dangerous trend. In a typical case of 498a abuse, a woman - nay a wife goes to the police station and gets an FIR lodged against her husband, in-laws & any other relative of her husband, whether or not he or she is residing in her matrimonial home. 

These people are immediately arrested based solely on the complaint of the wife without so much of a primary investigation to check the authenticity of the complaint. The whole family's morale, dignity and social standing is reduced to ashes in one go. 

Divorce in India is not easy, even if it is by mutual consent. Section 498a, a woman-oriented law by its very definition, is an effective tool to secure quick divorce. The modus operandi in most cases of misuse is to lodge an FIR u/s 498a & then to file for a maintenance amount which is usually granted to a woman till such time her divorce comes through. 

Then follows application for divorce & alimony in a civil court citing cruelty as a ground, under the Hindu Marriage Act, which is not difficult to get once 498a is filed, since civil cases are based on presumptions also and a woman filing a dowry harassment case is presumed to be subjected to cruelty. 

Even if the husband and family are acquitted of all charges u/s 498a, the divorce (rather the ground for divorce) and alimony amount stays unaffected unless, of course, it has been contested against earlier. Needless to say, the wife filing the false case goes scot-free.

More often, out-of-court settlements are practiced and the cases are withdrawn in return of a hefty "lump sum" amount sometimes including a share in the family property. This, therefore, is a "wife-centric" law and not a "woman-centric" one as is made out to be, since in any given family arrested, there are women members too. 

The need of the hour is a movement of mass awareness to give justice to the victims of abuse of the law, which has already begun considering the number of "men against dowry act misuse" organizations springing up all over the country. 

As a woman, I am deeply saddened & embarrassed by the continuous exploitation of a law meant to support us. Another dark side of this abuse is the suicides committed by the accused and family owing to the social disgrace & mental trauma the whole episode brings about - not to mention the loss of jobs or marriage proposals for members of the family & expenditure on litigation. 

The tax payers' hard earned money and the extremely valuable time of the judiciary is being wasted on the prosecution procedure of false cases under this section. Surprisingly, this issue has not been given the attention it deserves by the government although time and again the judiciary as well as the print media has commented about the misuse.

The section has been termed "draconian" and its misuse "legal terror", which does not suffice. A lot needs to be done at both the micro & macro levels to curb this extortion racket and give the genuine cases the attention they deserve.    

Vashi cops arrest 3 in dowry case, husband, mom-in-law at large

Jan 9, 2011

Acting on a complaint of physical and mental harassment by in-laws and demanding dowry, lodged by a housewife identified as Babita Amit Sheriyar (25), presently residing at her maternal house in sector-11, Juhugaon, the Vashi police had registered a dowry case in October 2010. 


Following investigation, the Vashi police has arrested two brothers-in-law and one sister-in-law of the complainant housewife. After their arrest, her husband and mother-in-law are absconding.The arrested accused are Jhony Rajvir Sheriyar (23), Arjun Rajvir Sheriyar (24) and Kavita Kisan Thenval, all residents of Shantinagar, Dahisar. 

While, the absconding accused husband has been identified as Amit Rajvir Sheriyar (27) and mother-in-law as Vimla Rajvir Sheriyar (50). The accused have been booked under Section 498A (husband or relative of husband of a woman subjecting her to cruelty) and 34 (common intention) of the IPC.

Investigating officer, PSI Arun Sugaonkar informed, "The woman was married to Amit Sheriyar in 2008 and started staying with her husband and in-laws' house in Dahisar. According to her complaint, soon after marriage, her husband and in-laws started demanding dowry and allegedly threatened her kill her if she did not bring Rs 2 lakh cash, a two-wheeler and a gold chain from her parents. 

When, she turned down their demands, she was allegedly subjected to physical and mental abuse. Hence, unable to bear the agony, she left her husband's house and for the past one year she was staying at her father's house in Juhugaon. 

However, in October 2010, she lodged a complaint against her husband and in-laws at Vashi police station. But, whenever we visited their house in Dahisar, we found the house locked. Finally, on January 8, in the morning the three in-laws were arrested from their residence. 

They were produced before the JMFC (Judicial Magistrate First Class) court in CBD-Belapur and have been sent in Magisterial Custody Remand (MCR) for 15 days."

Source: Mumbaimirror

Men outnumber women in suicides, finds NCRB study

Feb 12, 2011


MUMBAI: Every hour, 15 people kill themselves in India. One in every three victims is aged between 15 and 29 years. Worse, the family is the trigger in about a quarter of the country's 1 lakh-plus suicides annually.

This not-so-happy picture is the essence of the recently released National Crime Records Bureau report for 2009.

Indian planners have been gung-ho about the potential of the countrys youth population, but the NCRB statistics show that people in the 0-29 year age bracket have been killing themselves due to unemployment, exam failure, poverty and dowry disputes.

On a day-to-day scale, eight Indians commit suicide daily due to poverty, another nine due to bankruptcy and seven because of unemployment. The number of suicides due to unemployment and professional or career problems showed a relatively higher increase of 18.8% and 15.1% respectively, said the NCRB report.

There are other worrisome statistics: health problems and their related economic issues prompt 73 suicides daily. Family problems and illnesses account for 44.7% of all suicides in the country. Although men are killing themselves in larger numbers than women, the statistics show that housewives, who were hitherto considered non-suicidal, are ending their lives.

NCRB 2009 said that 223 Indian men killed themselves daily across the country. The corresponding figure for women was 125 daily, and 69 of these were housewives. It is really worrisome to note that housewives are committing suicide in such large numbers.

The report says that one in every five suicides is committed by a housewife, said psychiatrist Dr Harish Shetty. When we were students we were told that suicides were confined to single people now stress and the alienation brought on by liberalization policies are affecting everyone.

The crime report, which is the only document in India that provides statistics about suicides, concurs: Social and economic causes have led most of the males to commit suicide whereas emotional and personal causes have mainly driven women to end their lives. Among metros, Bangalore recorded the highest suicide rate with 2,167 people killing themselves in 2009. Chennai followed with 1,412, Delhi with 1,215 and Mumbai with 1,051 suicides.

Incidentally, Kolkata has the lowest suicide rate in the country. Five states Kerala, Tamil Nadu, Karnataka, Maharashtra and Andhra Pradesh have emerged as sensitive states for senior citizens, accounting for 54.7% suicide victims in the 60-plus age group. Maharashtra ranks third in this list, accounting for 11.2% suicides. The southern states add up to 39.2% of total suicides in the country, with Puducherry having the highest suicide rate in the country at 47.2 suicidal deaths per one lakh population as against the national average of 10.9.

Maharashtra's rate of suicide is 13.2. Lastly, experts pointed out that suicides are increasing rapidly and it is imperative for the government to treat the issue as a public health problem like malaria or polio. Consider how the number of suicides has increased from 1,13,914 in 2005 to 1,27,151 in 2009, and it is indicative enough, said Dr Shetty.

Andhra Pradesh stands 2nd in suicides

Jan 17, 2011


India reported 348 suicides and 418 accidental deaths per day in 2009, data released by the National Crime Records Bureau (NCRB) showed. 

Suicides rose 1.7% compared to 2008 while accidental deaths, including those in road mishaps, increased by 7.3% over the last year. A total of 1,27,151 suicides and 3,57,021 accidental deaths were reported in 2009.
"A total of 223 males commit suicides per day in the country while the number for women is 125 out of which 69 are housewives. Seventy-three people commit suicide on a single day due to illness while 10 are driven to suicide due to love affairs," the NCRB report said.

West Bengal topped the list with 14,648 suicides followed by Andhra Pradesh (14,500), Tamil Nadu (14,424), Maharashtra (14,300) and Karnataka (12,195). These five states accounted for 55.1% of the total suicides. Delhi recorded 1,477 suicides in 2009. UP rehas a comparatively lower number of suicides –- 3.3% of total cases. The data showed that suicides among farmers had increased during the period with five states — Maharashtra (2,872), AP (2,414), Karnataka (2,282), Chhattisgarh (1,802) and Madhya Pradesh (1,395) — accounting for nearly two-thirds of all farm suicides in the country. A total of 17,368 farmer suicides were reported in 2009, an increase of over 7% over 2008.

Maharashtra remained the worst state for farm suicides for the tenth year running. Tamil Nadu reported the biggest increase, from 512 in 2008 to 1,060 in 2009.

Poor states like Bihar (112), Orissa (154) and Jharkhand (164) reported far fewer suicides.
On the reasons for people committing suicides, family problems and illness topped the list with 23.7 and 21% cases respectively.

"It is observed that social and economic causes have led most of the males to commit suicide whereas emotional and personal causes have mainly driven women to end their lives," the report said, adding the number of suicides due to unemployment and professional/career problems showed an increase of 18.8% and 15.1% respectively in 2009.
Among cities, Bangalore (2,167), Chennai (1,412), Delhi (1,215) and Mumbai (1,051) together reported almost 43.3% of the total suicides reported from 35 big cities in the country.

However, in terms of rate of rise in accidental deaths, the highest increase was reported from Pune.
As far as accidental deaths are concerned, road accidents accounted for 37.9% followed by poisoning (8%), railway accidents (7.8%), drowning (7.7%) and fire accidents (7%).

(SC Judgement) Husband willing to pay 10L,Wife demand 50L,SC orders 10 L to settle divorce

Bench: P Sathasivam, B Chauhan

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…1467… OF 2011

(Arising out of S.L.P.(C) NO. 19632 of 2007)

Parimal … Appellant Versus

Veena @ Bharti …Respondent J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order dated 17.7.2007, passed by the High Court of Delhi at New Delhi, in FAO No.63 of 2002, by which the High Court has allowed the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter called CPC), reversing the judgment and order dated 11.12.2001, passed by the Additional District Judge, Delhi.

3. FACTS:

(A) Appellant got married to the respondent/wife on 9.12.1986 and out of the said wed lock, a girl was born. The relationship between 1

the parties did not remain cordial. There was acrimony in the marriage on account of various reasons. Thus, the appellant/husband filed a case for divorce on 27.4.1989, under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, against the respondent/wife. (B) Respondent/wife refused to receive the notice of the petition sent to her by the Court on 4.5.1989 vide registered AD cover for the date of hearing on 6.7.1989. Respondent/wife on 28.6.1989 was present at her house when the process server showed the summons to her. She read the same and refused to accept it. Refusal was reported by the process server, which was proved as Ex.OPW1/B. (C) Again on 7.8.1989, she refused to accept the notice for 8.9.1989, sent by the Court through process server. The Court ordered issuance of fresh notices. One was issued vide ordinary process and the other vide Registered AD cover for 8.9.1989. Registered AD was returned to the Court with report of refusal, as she declined to receive the AD notice. Under the Court’s orders, summons were affixed at the house of the respondent/wife, but she chose not to appear.

(D) She was served through public notice on 6.11.1989 published in the newspaper `National Herald’ which was sent to her address, 3/47, 2

First Floor, Geeta Colony, Delhi. This was placed on record and was not rebutted by the respondent/wife in any manner. (E) After service vide publication dated 8.11.1989 as well as by affixation, respondent/wife was proceeded ex- parte in the divorce proceedings. Ex-parte judgment was passed by Addl. District Judge, Delhi on 28.11.1989 in favour of the appellant/husband and the marriage between the parties was dissolved.

(F) Two years after the passing of the decree of divorce, on 16.10.1991, the appellant got married and has two sons aged 17 and 18 years respectively from the said marriage.

(G) The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce dated 28.11.1989, moved an application dated 17.12.1993 for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The said 3

application under Order IX, Rule 13 CPC was also accompanied by an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay.

(H) The trial Court examined the issues involved in the application at length and came to the conclusion that respondent/wife miserably failed to establish the grounds taken by her in the application to set aside the ex-parte decree and dismissed the same vide order dated 11.12.2001.

(I) Being aggrieved, respondent/wife preferred First Appeal No.63 of 2002 before the Delhi High Court which has been allowed vide judgment and order impugned herein. Hence, this appeal. RIVAL SUBMISSIONS:

4. Shri M.C. Dhingra, Ld. counsel appearing for the appellant has submitted that the service stood completed in terms of statutory provisions of the CPC by the refusal of the respondent to take the summons. Subsequently, the registered post was also not received by her as she refused it. It was only in such circumstances that the trial Court entertained the application of the appellant under Order V, Rule 20 CPC for substituted service. The summons were served by publication in the daily newspaper `National Herald’ published from 4

Delhi which has a very wide circulation and further service of the said newspaper on the respondent/wife by registered post. The High Court committed a grave error by taking into consideration the conduct of the appellant subsequent to the date of decree of divorce which was totally irrelevant and unwarranted for deciding the application under Order IX, Rule 13 CPC. More so, the High Court failed to take note of the hard reality that after two years of the ex-parte decree the appellant got married and now has two major sons from the second wife. Therefore, the appeal deserves to be allowed and the judgment impugned is liable to be set aside.

5. On the contrary, Ms. Geeta Dhingra, Ld. counsel appearing for the respondent/wife has vehemently opposed the appeal, contending that once the respondent/wife made the allegations of fraud and collusion of the appellant with postman etc. as he succeeded in procuring the false report, the burden of proof would be upon the appellant and not upon the respondent/wife to establish that the allegations of fraud or collusion were false. The conduct of the appellant even subsequent to the date of decree of divorce, i.e. not disclosing this fact to the respondent/wife during the proceedings under Section 125 Cr.P.C., disentitles him from any relief before this 5

court of equity. No interference is required in the matter and the appeal is liable to be dismissed.

6. We have considered the rival submissions made by learned counsel for the parties and perused the record.

7. Order IX, R.13 CPC:

The aforesaid provisions read as under:

“Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the de- cree was passed for an order to set it aside; and if he sat- isfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

xx xx xx” (Emphasis added)

8. It is evident from the above that an ex-parte decree against a 6

defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

9. “Sufficient Cause” is an expression which has been used in large number of Statutes. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that party had not acted in a negligent manner or there 7

was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459)

10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 8

1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

11. While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for 9

which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. PRESUMPTION OF SERVICE BY REGISTERED POST & BURDEN OF PROOF:

13. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287.

14. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this Court held as under: “There is presumption of service of a letter sent 1

under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service.”

(Emphasis added)

15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.

PRESENT CONTROVERSY:

1

16. The case at hand is required to be considered in the light of the aforesaid settled legal propositions. The trial Court after appreciating the entire evidence on record and pleadings taken by the parties recorded the following findings:

“The applicant/wife as per record was served with the notice of the petition, firstly, on 4.5.89 when she had refused to accept the notice of the petition vide registered AD cover for the date of hearing i.e. 6.7.89 and thereafter on 7.8.89 when again she refused to accept the notice for 8.9.89 and thereafter when the notice was published in the newspaper `National Herald’ on 6.11.89. The UPC Receipt dated 6.11.89 vide which the newspaper `National Herald’ dated 6.11.89 was sent to the respondent/applicant at her address 3/47, First Floor, Geeta Colony, Delhi is on record and has not been rebutted in any manner.

In these circumstances, the application u/o 9 Rule 13 CPC filed by the respondent/applicant/wife on 7.1.1994 is hopelessly barred by time and no sufficient ground has been shown by the applicant/wife for condoning the said inordinate delay.”

17. So far as the High Court is concerned, it did not deal with this issue of service of summons or as to whether there was “sufficient cause” for the wife not to appear before the court at all, nor did it set aside the aforesaid findings recorded by the trial Court. The trial Court has dealt with only the aforesaid two issues and nothing else. 1

The High Court has not dealt with these issues in correct perspective. The High Court has recorded the following findings: “The order sheets of the original file also deserve a look. The case was filed on 1.5.1989. It was ordered that respondent be served vide process fee and Regd. AD for 6.7.1989. The report of process server reveals that process server did not identify the appellant and she was identified by the respondent himself. In next date’s report appellant was identified by a witness. The Retd. AD mentions only one word “refused”. It does not state that it was tendered to whom and who had refused to accept the notice. The case was adjourned to 8.9.1989. It was recorded that respondent had refused to take the notice. Only one word, “Refused” appears on this registered envelope as well. On 8.9.1989 itself it was reported that respondent had refused notice and permission was sought to move an application under Order 5 Rule 20 of CPC. On 8.9.1989, application under Section 5 Rule 20 CPC was moved and it was ordered that the appellant be served through “National Herald”. The presumption of law if any stands rebutted by the statement made by the appellant because she has

stated that she was staying in the said house of her brother for a period of eight months. The version given by her stands supported by the statement made by her brother.”

(Emphasis added)

18. The High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother and this was duly supported by her brother 1

who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last. (Vide Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors., (2008) 7 SCC 663).

19. More so, it is nobody’s case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the respondent/wife to examine the postman. It is nobody’s case that the “National Herald” daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside.

20. The appellate Court has to decide the appeal preferred under Section 104 CPC following the procedure prescribed under Order XLIII, Rule 2 CPC, which provides that for that purpose, procedure prescribed under Order XLI shall apply, so far as may be, to appeals 1

from orders. In view of the fact that no amendment by Delhi High Court in exercise of its power under Section 122 CPC has been brought to our notice, the procedure prescribed under Order XLI, Rule 31 CPC had to be applied in this case. .

21. Order XLI, Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance of the said provisions. The first appellate Court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. (vide: Moran Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526; Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Santosh Hazari v. Purshottam Tiwari, AIR 2001 SC 965; Madhukar v. Sangram, AIR 2001 SC 2171; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. 1

Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380).

22. The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial Court’s judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate Court should not modify the decree of the trial Court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate Court would fall short of considerations expected from the first appellate Court in view of the provisions of Order XLI, Rule 31 CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551). 23.In view of the aforesaid statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte 1

decree. The manner in which the language of the second proviso to Order IX, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement.

24. The High Court has not set aside the material findings recorded by the trial Court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate Court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex-parte decree. More so, the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner.

25. In view of the above, appeal succeeds and is allowed. The judgment and order dated 17.7.2007 passed by the High Court of Delhi in FAO No. 63 of 2002 is set aside and the judgment and order of the trial Court dated 11.12.2001 is restored. 1

Before parting with the case, it may be pertinent to mention here that the court tried to find out the means of re-conciliation of the dispute and in view of the fact that the appellant got married in 1991 and has two major sons, it would not be possible for him to keep the respondent as a wife. A lump sum amount of Rs. 5 lakhs had been offered by Shri M.C. Dhingra, Ld. counsel for the appellant to settle the issue. However, the demand by the respondent/wife had been of Rs. 50 lakhs. Considering the income of the appellant as he had furnished the pay scales etc., the court feels that awarding a sum of Rs. 10 lakhs to the wife would meet the ends of justice as a lump sum amount of maintenance for the future. The said amount be paid by the appellant to the respondent in two equal instalments within a period of six months from today. The first instalment be paid within three months.

………………………..J.

(P. SATHASIVAM)

………………………..J.

(Dr. B.S. CHAUHAN)

New Delhi,

February 8, 2011
Source: http://indiankanoon.org/doc/602824/