WP10787_1_18.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10787 OF 2018
Sham Ramdas Sawant … Petitioner
Vs.
Sushma Sham Sawant … Respondent

Mr. M. B. Kale i/b. Mr. P. J. Pardeshi for Petitioner.
Mr. Manish P. Gitay for Respondent.

CORAM : R. G. KETKAR, J.

DATE : JANUARY 23, 2019

P.C. :

Not on Board. At the request of Mr. Kale, taken up in the
production Board.

2. Heard Mr. Kale, learned Counsel for the petitioner and Mr.Gitay,
learned Counsel for the respondent at length.

3. By this Petition under Article 227 of the Constitution of India,
petitioner has challenged the order dated 18.07.2018 passed by the
learned District Judge-1, Khed-Rajgurunagar below exhibit-48 in Civil
Miscellaneous application No.9 of 2017. The petitioner has also sought
removal of statement dated 06.06.2018 of daughter Sanskruti from the
record of Civil Miscellaneous Appeal No.9 of 2017, which is marked as
exhibit-53.

4. By order dated 18.07.2018, the learned trial Judge rejected the
application exhibit-48 made by the petitioner for marking documents
produced along with list at exhibit-40 and also for his re-examination.
Rule. Mr. Gitay waives service for the respondent. Having regard to the
narrow controversy raised in this Petition as also at the request and by
consent of the parties, Rule is made returnable forthwith and the Petition

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is taken up for final hearing.

5. The respondent filed Petition being Marriage Petition No.1105 of
2016 in September 2016 for divorce. The petitioner instituted Petition
for restitution of conjugal rights under Section 9 of the Hindu Marriage
Act, 1955 (for short ‘Act’) in December 2016. The petitioner filed
application being Civil Miscellaneous Application No.9 of 2017 under
the provisions of Guardians and Wards Act, 1890 for custody of his
children. The petitioner had filed affidavit of evidence on 20.06.2017. In
paragraph 34, he referred to the list containing documents and requested
for marking them as exhibits and admitting them in evidence. On the
same date i.e. 20.06.2017, petitioner filed list of documents at exhibit-40
containing as many as 17 documents. The petitioner filed affidavit under
Section 65-B of the Indian Evidence Act, 1872 (for short ‘Evidence
Act’). Petitioner’s cross-examination was over on 01.01.2018.
Petitioner’s evidence was over on 01.01.2018. On 14.02.2018, petitioner
filed application exhibit-48 for marking documents as exhibits and
reading them in evidence and also for his re-examination. On
01.06.2018, respondent handed over custody of child Devansh to the
petitioner. On 06.06.2018, daughter Sanskruti was interviewed by the
learned trial Judge and that is marked as exhibit-43. The application
filed by the petitioner on 14.02.2018 at exhibit-48 is rejected by the
impugned order dated 18.07.2018. It is against this order, petitioner has
instituted the present Petition.

6. In support of this Petition, Mr. Kale submitted that it is not in
dispute that along with the affidavit of examination-in-chief dated
20.06.2017, petitioner had filed list of documents at exhibit-40. In
paragraph 34, he specifically requested the learned trial Judge to mark
these documents as exhibits and also admit them in evidence. The
learned trial Judge however, did not mark these documents as exhibits.

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He further submitted that behind the back of the petitioner, the learned
trial Judge interviewed daughter Sanskruti on 06.06.2018. He, therefore,
submitted that the impugned order deserves to be set aside thereby
marking documents produced alongwith the list at exhibit-40 and
admitting them in evidence and the statement of daughter Sanskruti
recorded on 06.06.2018 also deserves to be removed from the
proceedings.

7. On the other hand, Mr. Gitay supported the impugned order. He
submitted that petitioner has also filed affidavit under Section 65-B of
the Evidence Act on 11.10.2017. Along with that affidavit, though he
has filed certificate issued by Sona, Audio Video Craft, he has not
examined the person, who is in charge of the electronic device in terms
of Section 65-B of the Evidence Act. He further submitted that even
after closure of cross-examination on 01.01.2018, petitioner did not pray
for his re-examination. He, therefore, submitted that no case is made out
for interfering with the impugned order.

8. I have considered the rival submissions advanced by the learned
Counsel appearing for the parties. I have also perused the material on
record. A perusal of the record shows that petitioner has filed affidavit of
examination-in-chief on 20.06.2017. Along with that affidavit, he has
also filed list of documents at exhibit-40 on 20.06.2017 containing as
many as 17 documents. In paragraph 34 of the examination-in-chief, he
prayed for marking the documents as exhibits and admitting them in
evidence. The petitioner also filed affidavit dated 11.10.2017 as required
by Section 65-B of the Evidence Act and again prayed for marking those
documents as exhibits. The petitioner was cross-examined on
01.01.2018. In view thereof, in my opinion, the learned trial Judge
should have marked the documents produced by the petitioner at
exhibit-40 and admitted them in evidence. That apart, along with the

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affidavit dated 11.10.2017 filed by the petitioner under Section 65-B, the
petitioner has produced the certificate. Mr. Gitay submitted that
petitioner did not examine the person having lawful control over the use
of electronic device.

9. Section 65-B(1) of the Evidence Act reads thus,
“65B. Admissibility of electronic records.-

(1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if the
conditions mentioned in this section are satisfied in relation to
the information and computer in question and shall be
admissible in any proceedings, without further proof or
production of the original, as evidence of any contents of the
original or of any fact stated therein of which direct evidence
would be admissible.”

10. A perusal of the above provision shows that the information
contained in an electronic record, which is printed on a paper, stored,
recorded or copied in optical or magnetic media produced by a computer
is deemed to be also a document, if the conditions mentioned in this
section are satisfied in relation to the information and computer in
question and shall be admissible in any proceedings, without further
proof or production of the original, as evidence of any contents of the
original or of any fact stated therein of which direct evidence would be
admissible. Thus, subject to fulfilling the conditions stipulated in
Section 65-B, the document so generated is admissible in proceedings
without any further proof or production of the original. In view thereof, I
do not find any merit in the submission of Mr. Gitay that petitioner
should have examined the person in control of the electronic device. At
the same time, the prayer made by the petitioner for his re-examination
and for removal of statement of daughter Sanskruti recorded on

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06.06.2018 cannot be acceded to. Hence, Petition is disposed of in the
following terms:

a. The learned trial Judge shall mark the documents produced
by the petitioner along with the list at exhibit-40 and these
documents shall be read in evidence;

b. The prayer made by the petitioner for his re-examination
and for removal of the statement of daughter Sanskruti
recorded on 06.06.2018 is rejected;

c. The learned trial Judge is requested to dispose of the
proceedings as expeditiously as possible and preferably
within 6 months from the production of the authenticated
copy of this order;

d. All contentions of the parties on merits are expressly kept
open;

e. Rule is partly made absolute in the aforesaid terms with no
order as to costs.

(R. G. KETKAR, J.)

Minal Parab

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