The CD produced before the Family Court is admissible in evidence despite the fact that it was not certified
Pramod E K Vs Louna V C
OP (FC).No. 513 of 2018
About/from the judgment:
Evidence Act, 1872 - Section 65B (4) - Family Courts Act, 1984 - Section 14 - Whether the CD produced before the Family Court could be admitted in evidence in the absence of certification - Held, the CD produced before the Family Court is admissible in evidence, despite the fact that it was not certified.
The words employed in the Section make it abundantly clear that, any matter, information etc., placed before a Family Court may be admitted in evidence uninhibited by the rules of relevancy and admissibility prescribed by the Evidence Act, provided the Family Court is of the opinion that the matter before it is essential for the effective resolution of the dispute in the proceeding. Understood in the light of the object and scheme of the Act, Section 14 of the Act seems to convey the legislative intention that Family Court has absolute freedom to depart from adopting the sophisticated and strict rules of relevancy and admissibility applicable to the regular civil courts in the country. The freedom of partial departure from the Evidence Act helps the Family Courts prevent valuable information and materials necessary for effective adjudication of disputes from being shut out in the enquiries and trial. In effect, the rules of relevancy and admissibility in the Evidence Act ought to be read subject only to Section 14 of the Act. In the event of any inconsistency emerging between the provisions of these two Acts, Family Courts Act 1984 alone will prevail. The technicalities of the Evidence Act should not be imported to the proceeding before the Family Courts in view of the provisions in Section 14 of the Act. We too concur with the view expressed in the said decisions. In view of the overriding effect of the Section 14 of the Act on the rules of admissibility in the Evidence Act, we hold that the CD produced before the Family Court, Thalassery is admissible in evidence, despite the fact that it was not certified as mandated by Section 65-B(4) of the Act. The contention put forth by the learned counsel for the respondent that the non obstante clause in Section 65-B (1) introduced by Act No.21 of 2000 would, however, prevail over Section 14 of the Act rendering production of certificate under Section 65-B(4) of the Evidence Act inevitable, does not merit acceptance. The words used in Section 65-B(1) sufficiently indicate that the non obstante clause does not extend outside the Evidence Act nor does it curtail the operation of any other law.
Family Courts Act, 1984 - Section 14 - The hearsay which is inherently inadmissible cannot be acknowledged as an evidence in any proceeding before a Family Court.
The Family Courts though not bound by the sophisticated rules of relevancy or admissibility of evidence by virtue of Section 14 of the Act, in our opinion, should not, however be understood to possess unregulated or unbridled power or freedom to receive in evidence indiscriminately all matters that are brought before them. Any undue and excessive liberal interpretation put on Section 14 of the Act may only produce mischievous and disaster result and even do disservice to the system. While interpreting Section 14, only the true legislative object should be given effect to and promoted and any mischief suppressed. The hearsay which is inherently inadmissible cannot be therefore acknowledged as an evidence in any proceeding before a Family Court also. The legal system of our country has always the tradition of observing ordinary principles of proof and natural justice even in situations where authorities of law deciding cases are not bound or governed by the Evidence Act 1872. Section 14 of the Act is only aimed at mitigating the rigour of sophisticated rules of relevancy and admissibility of the Evidence Act, rather than annihilating the very fundamental rules of proof and natural justice inherent in an ideal legal system. We are therefore, of the view that the Family Courts absolved from the trauma of observing rules of relevancy and admissibility of evidence envisaged by the Evidence Act 1872, are nonetheless bound to adhere to the fundamental rules of evidence based on logic, fairness and expediency and also principles of natural justice.
Family Courts Act, 1984 - Section 14 - Whether the production and admission of the CD in evidence by the mere force of Section 14 of the Evidence Act are proof of the alleged quarrelsome talk of the respondent - Mere admission of a document in evidence, whether it be electronic or otherwise, will not discharge the burden of the party proposing evidence from proving the contents also.
What Section 14 of the Act enacts is not any special rule of evidence as certain other special statues do. A document merely marked with or without consent of the opposite party in a proceeding before a Family Court is no proof at all unless the contents thereof are either admitted by the adverse party or proved through the persons who can vouch for the truth of the facts. This is an elementary principle of proof flawing from principles of natural justice, logic fairness and expediency dehors the provisions of the Evidence Act. We are of the opinion that Family Courts cannot take any exception to this binding fundamental rule of evidence and therefore, the CD produced before the Family Court cannot be said to be proved unless the contents are also proved despite its admission in evidence. Section 14 of the Act as evident from the very language of the Section itself only relaxes observance of the rules of relevancy and admissibility of evidence rather than dispensing with the very fundamental principles of evidence and natural justice or proof of contents of a document. The purported voice of respondent extracted in the CD in our opinion has to be proved in the same manner as a tape recorded conversation. The petitioner can succeed in proving the alleged riotous dialogue in the CD only when the identity of the speaker is also proved. Proof of the accuracy of the statement recorded is another essential requirement in the matter of proof of a tape recorded conservation. The court accepting the evidence must rule out that no tampering was made while the statement was recorded. These are only some of the guidelines in the matter of proof of contents of the CD. Unless all the essential conditions above are satisfied, contents of the CD produced by the petitioner cannot be said to be proved despite its admission in evidence by the mere force of Section 14 of the Act.
Facts of the Case
While the respondent, wife was being cross examined in the O.P. No.371/2013, the petitioner/husband confronted her with a quarrelsome conversation of her recorded by him in his mobile phone. Since the sound track played from the mobile phone in the course of trial did not appear to the witness to be clear, she replied that she was not able to confirm the conversation. This led to the petitioner recording the voice in a CD and producing it in O.P.609/2017. The mobile phone was, however, not produced in any of the proceedings till date and the device seems to be in the custody of the petitioner. The impugned order of the Family Court dated 31.7.2018 is hereby set aside and consequently, I.As 384, 491 & 763 of 2018 filed by the petitioner are allowed. The court below is directed to proceed to take requisite follow up action. In the result, the O.P.(FC) is allowed.
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