Uthaman T.G. v. Sreelatha K.S. and Anil Kumar P. (O.P.(FC) No. 575 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022/10TH KARTHIKA, 1944** **O.P.(FC) NO. 575 OF 2022** **AGAINST THE ORDER DATED 13.07.2022 IN I.A.NO.1 OF 2020 IN O.P.(HMA) NO.1054 OF 2017 OF THE FAMILY COURT,** **PATHANAMTHITTA** ## **PETITIONER:** **UTHAMAN T.G., AGED 45 YEARS, S/O. GOPALAKRISHNAPILLAI, KRISHNAKRIPA, MALAYALAPUZHA, THAZHAM P O, RANNY, PATHANAMTHITTA, PIN – 689666.** **BY ADVS. ARUN.B.VARGHESE AISWARYA V.S.** ## **RESPONDENTS:** **1 SREELATHA K.S., AGED 44 YEARS, D/O. SASIDHARAN NAIR, KRISHNAKRIPA, MALAYALAPUZHA THAZHAM P O, RANNY, PATHANAMTHITTA, PIN – 689666.** **2 ANILKUMAR P., AGED 45 YEARS, S/O. PURUSHOTHAMAN NAIR, PARATHUNDIL HOUSE, MALAYALAPUZHA THAZHAM P O, RANNY, PATHANAMTHITTA, PIN – 689666.** **BY ADVS.** **SURESH KUMAR M.T. R.RENJITH** **SMITHA PHILIPOSE DARSAN SOMANATH MANJUSHA K SREELAKSHMI SABU** 2 O.P.(FC) No.575 of 2022 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 21.10.2022, THE COURT ON 01.11.2022 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.575 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner filed O.P.(HMA) No.1054 of 2017 before the Family Court, Pathanamthitta. The respondents herein are the respondents in that O.P. The petitioner also filed I.A.No.1 of 2020 seeking to call for the records in M.C.No.220 of 2016 on the file of the Chief Judicial Magistrate's Court, Pathanamthitta. As per the order dated 13.07.2022 the Family Court dismissed that application. Challenging legality of that order, the petitioner filed this Original Petition under Article 227 of the Constitution of India. 2. On 10.10.2022, notice was ordered to be served on the respondents. The petitioner was permitted to serve notice on the respondents through their counsel appearing before the Family Court, Pathanamthitta, where O.P.(HMA) No.1054 of 2017 is pending. The 1[st] respondent entered appearance through counsel. The 2[nd] respondent did not choose to appear before this Court. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the 1[st] respondent. 4 ## O.P.(FC) No.575 of 2022 4. O.P.(HMA) No.1054 of 2017 was filed by the petitioner for dissolution of his marriage with the 1[st] respondent, which was solemnized on 28.04.2002. The allegations are that the 1[st] respondent meted out cruelty and has been maintaining extra-marital relationship with the 2[nd] respondent. The 1[st] respondent filed an objection in that O.P. denying the allegations. She filed M.C.No.220 of 2016 before the Chief Judicial Magistrate, Pathanamthitta under the provisions of the Protection of Women from Domestic Violence Act, 2005 and on obtaining a protection order she continued residence in the house belonging to the petitioner. The petitioner had with him the mobile phone of the 1[st] respondent from which she used to contact the 2[nd] respondent. The petitioner retrieved the chat and call records from the said mobile phone. He then produced the mobile phone along with the chat and call records before the Chief Judicial Magistrate in M.C.No.220 of 2016. 5. The petitioner alleges that the 1[st] respondent confronted with a situation that the truth will come out, she withdrew from prosecuting M.C.No.220 of 2016. Her request 5 ## O.P.(FC) No.575 of 2022 was allowed and the M.C. was dismissed. The petitioner therefore filed an application before the Chief Judicial Magistrate to get the mobile phone along with chat and call records from the court, which he has produced, to return to him for production before the Family Court, where O.P.(HMA) No.1054 of 2017 is pending. That application was allowed. But the 1[st] respondent staked a claim for the return of the mobile phone on the premises that the same belongs to her and if the same happened to be in the custody of anyone else there is possibility for its misuse and violation of her privacy. In the said circumstances, the petitioner filed Ext.P9 (I.A.No.1 of 2020 in O.P.(HMA) No.1054 of 2017) before the Family Court seeking to call for the records in M.C.No.220 of 2016 including the mobile phone for the purpose of reference in that case. The 1[st] respondent filed an objection, a copy of which is Ext.P10. She reiterated that the said mobile phone was produced by the petitioner after manipulating the data in it and any misuse of the same will affect her privacy. 6. The Family Court, after hearing both sides, dismissed Ext.P9 application holding that an appeal relating to 6 ## O.P.(FC) No.575 of 2022 the proceedings in M.C.No.220 of 2016 is pending before the Sessions Court, Pathanamthitta as Crl.Appeal No.29 of 2020, and therefore the records now in the custody of the Chief Judicial Magistrate could not be called for. 7. The learned counsel appearing for the petitioner would contend that the pendency of an appeal has nothing to do with getting documents produced in the Family Court and consideration is only whether those documents are accessible and relevant in the proceedings pending before the Family Court. In this regard, the learned counsel appearing for the petitioner placed reliance on the decision in **Lakshmi and** ## **another v. ChinnammaL @ Rayyammal and others [(2009) 13 SCC 25].** 8. The learned counsel appearing for the 1[st] respondent, on the other hand, would submit that the mobile phone belongs to the 1[st] respondent and when the petitioner manipulated the data in it and produced such fabricated documents, namely, data and call records, falsely claiming that those were retrieved from the mobile phone, production of the same in O.P.(HMA) No.1054 of 2017 would not serve 7 ## O.P.(FC) No.575 of 2022 any purpose. Production of those documents will result in violation of the rights of the 1[st] respondent. Moreover, the records are required for the purpose of the appeal pending before the Sessions Court and therefore the same cannot be called for till the disposal of the said appeal. 9. By virtue of the provisions of Section 10 of the Family Courts Act, 1984, provisions of Order XIII of the Code of Civil Procedure, 1908, which deal with production, admission, etc. of documents are applicable to the proceedings before the Family Court. Rule 10 of Order XIII of the Code enables a court, in its discretion upon an application of any of the parties to a proceedings, sent for records from any other court for inspection. The said rule is subject to the caveat that documents, which under the law of evidence would be inadmissible in evidence, shall not be thus called for. The 1[st] respondent has no case that the mobile phone and the data are inadmissible in evidence. Of course, she has a contention that the data in the mobile phone and the records of data and calls said to be retrieved are manipulated. That is a matter to be considered once such matters are tendered in 8 ## O.P.(FC) No.575 of 2022 evidence. The allegation in the petition for divorce is that the 1[st] respondent has been leading an adulterous life with the 2[nd] respondent. The contention of the petitioner is that the mobile phone, which was being used by the 1[st] respondent contains materials to substantiate the relationship between the respondents. If so, such a fact is certainly relevant in the enquiry in the petition for divorce. 10. In **Lakshmi** (supra) the Apex Court held that if bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. Also, it was held that the procedural mechanics necessary to arrive at a just decision must be encouraged. Here, the Family Court cited reason for disallowing Ext.P9 application that the matter involved in M.C.No.220 of 2016 is pending consideration of the Sessions Court, Pathanamthitta in appeal, and therefore the records cannot be called for. That is not a reason to deny the request for calling for the records in M.C.No.220 of 2016. If those records are required for the perusal of the Sessions Court, there is absolutely no difficulty for returning it, if required, 9 ## O.P.(FC) No.575 of 2022 after duplicating and authenticating the copies of the documents required for the purpose of the petition for divorce, following the appropriate procedure in law. The question as to who produced the documents before the court is not very important while considering the relevancy in the enquiry or trial. An item of evidence brought on record from illegal custody or irregular means even can become part of evidence. 11. In the said circumstances, we are of the view that the Family Court went wrong in dismissing Ext.P9 application. The order dated 13.07.2022, Ext.P11, is therefore liable to be reversed. Accordingly, we allow this Original Petition. I.A.No.1054 of 2017 stands allowed. The Family Court, Pathanamthitta will take necessary follow up action. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.575 of 2022 ## **APPENDIX OF OP (FC) 575/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE MEMORANDUM OF PETITION FILED IN O.P.(HMA) NO 1054/2017 FILED BY THE PETITIONER PENDING ON THE FILES OF THE FAMILY COURT, PATHANAMTHITTA** **Exhibit P2 A TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT OP NO. 1054/2017 Exhibit P3 A TRUE COPY OF THE PETITION FILED BY THE PETITIONER HEREIN AS CRL.M.P. NO. 1211/2018 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT** - **Exhibit P4 A TRUE COPY OF ORDER DATED 06.07.2019 IN MC NO. 220/2016 BY THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA** - **Exhibit P5 A TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER AS CRL.M.P. 822/2020 IN MC NO. 220 OF 2016 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA** - **Exhibit P6 A TRUE COPY OF THE ORDER DATED 25.06.2020 IN CRL. MP NO. 822/2020 IN MC NO. 220/2016 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA** **Exhibit P7 A TRUE COPY OF THE APPLICATION FILED BY THE FIRST RESPONDENT HEREIN BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT PATHANAMTHITTA IN MC NO. 220/2016** 11 ## O.P.(FC) No.575 of 2022 **Exhibit P8** - **A TRUE COPY OF THE ORDER DATED 30.06.2020 PASSED IN CRL. MP NO. 1018/2020 IN MC NO. 220/2016 BY THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA** ## **Exhibit P9** - **A TRUE COPY OF I.A. NO. 1/2020 IN O.P. (HMA). NO. 1054 OF 2017 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, PATHANAMTHITTA** **Exhibit P10** - **A TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT HEREIN IN I.A. NO. 1/2020 IN O.P.(HMA). NO. 1054 OF 2017 DATED 21.04.2022** - **Exhibit P11** - **A TRUE COPY OF THE ORDER DATED 13.07.2022 IN I.A. NO. 1/2020 IN O.P. (HMA). NO. 1054 OF 2017 OF THE FAMILY COURT, PATHANAMTHITTA** - **Exhibit P12** - **A TRUE COPY OF THE CASE STATUS OF CRL.A. 29/2020 PENDING BEFORE THE DISTRICT COURT, PATHANAMTHITTA RETRIEVED FROM THE E COURTS WEBSITE ON 01.10.2022**