Punjab-Haryana High Court
Satbir vs Saroj & Ors on 11 September, 2014
Author: Anita Chaudhry
Bench: Anita Chaudhry
Crl. Revision (F) No. 15 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Crl. Revision (F) No. 15 of 2013 (O&M)
Date of decision : September 11, 2014
Satbir
..... Petitioner
versus
Saroj and others
...Respondents
CORAM:- HON'BLE MS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of the local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
Present: Mr. Mahender Singh Chahal, Advocate
for the petitioner
Mr. R.S. Panghal, Advocate
for the respondents
--
ANITA CHAUDHRY, J.
This revision is directed against the order dated 01.02.2013 passed by the District Judge (Family Court) Bhiwani who awarded maintenance in the petition filed under Section 125 Cr.P.C. to the petitioners who are the wife and minor children.
To appreciate the issue raised, it would be apposite to refer to the basic facts. Saroj was married to Satbir in 1998. Three children were born out of the wedlock. The eldest was stated to be 12 years, the youngest was 2 years only, when the petition was filed in the year 2012. Several allegations were levelled by the wife but it would be necessary to only refer to one of them. The petitioner had REENA alleged that the respondent in connivance with his younger brother 2014.09.12 15:27 I attest to the accuracy and integrity of this document chandigarh Crl. Revision (F) No. 15 of 2013 (O&M) 2 succeeded in preparing a blue film in order to blackmail her and forced her to commit suicide. It is pleaded that she has come to know that the respondent had a paramour at his place of posting and was asking for divorce and had started issuing threats. It was pleaded that she was unable to maintain herself and in April 2011 she started living with her parents and the respondent was not responding to any of her calls nor had sent any maintenance. It was pleaded that she was unable to maintain herself and her children who were school going. She had to pay the school fee and was facing hardship. It was pleaded that the husband was serving as an Inspector in CRPF and was getting salary of ` 40,000/- per month and owned 4 acres of agricultural land. The petitioner had claimed ` 20,000/- per month as maintenance.
In the reply, it was pleaded that the petitioner was residing in the house owned by the respondent and he was maintaining the family. It was pleaded that petitioner No. 1 had a bad reputation and she used to leave the matrimonial house in his absence and without his consent. It was pleaded that petitioner No. 1 was under the influence of her father who had committed two murders and she was blackmailing him.
In response to para 5 of the petition, it was pleaded that false and baseless allegations had been levelled against his brother and no CD had been prepared by them. It was denied that he had insulted his wife. It was pleaded that he was getting salary of `15,000/-.
The District Judge (Family Court) Bhiwani allowed the REENA 2014.09.12 15:27 I attest to the accuracy and integrity of this document chandigarh Crl. Revision (F) No. 15 of 2013 (O&M) 3 petition and directed the respondent to pay a sum of ` 4,000/- to petitioner No. 1 and ` 2,000/- each to the minor children. It was noticed that the respondent did not produce his salary certificate but as he had admitted that he was getting basic salary of ` 14,150/-, it was considered that he must be drawing an amount not less than ` 30,000/- per month.
The challenge to the order is that the District Judge assumed the income of the petitioner and awarded maintenance which was on the higher side. It was pleaded that respondent No. 1 was capable of earning and she was residing in the house constructed from his funds. It was pleaded that he too had a liability towards his parents and all these aspects were not considered. It was pleaded that respondent No. 1 had deserted him.
I have heard learned counsel for the parties.
At the outset, learned counsel for the petitioner contended that the petitioner was ready to pay maintenance for his children but he was not ready to pay the maintenance awarded to the wife as she was living in adultery. It was urged that the petitioner had produced a Pen Drive which contains material to prove the allegations. It was urged that the wife and the children were residing in the house owned by the petitioner. It was contended that there was an admission by the petitioner that a blue film had been prepared and that admission was sufficient to deny maintenance.
On the other hand the submission on behalf of the respondents was that the petitioner had alleged that some blue film had been prepared by the husband with the help of his brother and REENA 2014.09.12 15:27 I attest to the accuracy and integrity of this document chandigarh Crl. Revision (F) No. 15 of 2013 (O&M) 4 that fact had been denied by respondent No. 1 and there was no material to make such absurd allegations and the wife was not earning and the husband was under a duty to maintain his wife and children and they were entitled to the same standard of living as the petitioner.
Learned counsel for the petitioner then contended that a Pen Drive had been tendered in evidence and was exhibited and is available on record.
It is necessary to first examine as to whether the electronic evidence put on the record is admissible per se and whether the petitioner had satisfied the test of the Evidence Act and the Civil Procedure Code.
The elementary principle of recording evidence must be first considered. The evidence consists of examination-in-chief and cross -examination. A party is required to offer for inspection and produce the document or the CD/Pen Drive in advance to the other party and it is so provided in Order VII Rule 14 CPC and Order VIII Rule 1-A. The petitioner is relying upon a Pen Drive and it is to be seen whether it is primary and direct evidence. The Pen Drive is always prepared by mechanical/electronic process. If a Video has been recorded, then it is copied to a Pen Drive with the help of a computer such a copy would be secondary evidence under Section 63 of the Evidence Act. The accuracy of the Video/CD/Pen Drive has to be proved by eliminating all possibilities of erasing the tape recording/video recording.
The petitioner did not utter a word regarding the REENA 2014.09.12 15:27 I attest to the accuracy and integrity of this document chandigarh Crl. Revision (F) No. 15 of 2013 (O&M) 5 preparation of any video recording and had infact denied in his reply that he had in his possession any recording. The petitioner failed to confront his wife with any incriminating material when she stepped into the witness box with any evidence/recording and only made a suggestion that she did not have a good reputation and was leading a adulterous life. When the husband led his evidence, he got an affidavit prepared. That affidavit was typed outside and it was attested by the Oath Commissioner. The copy of the Memory Card and one GB Memory Card was shown as mark Exhibit R-1 and R-2. The affidavit was tendered in evidence.
The petitioner had not shown the mechanical/electronic process by which that memory card was prepared. He could not have been permitted to produce the electronic record. Mere introduction or mentioning of the electronic device as Exhibit did not dispense with its proof. The petitioner neither confronted his wife nor provided a copy of the same to enable the wife to respond.
No one has seen what is recorded in Pen Drive. The petitioner wants the Court to assume that it contains recording of his wife. The recording could have been considered as evidence only after it had passed the test of relevancy, identification and accuracy. In this case this test has not been passed and the Memory Card/Pen Drive would be of no use nor it is proof of any fact.
The petitioner failed to lead any evidence to indicate that the Memory Card/Pen drive was a true reproduction. He had failed to give the source of acquisition and authenticity of its contents and it can not be read in evidence.
REENA2014.09.12 15:27 I attest to the accuracy and integrity of this document chandigarh Crl. Revision (F) No. 15 of 2013 (O&M) 6
If the petitioner himself had recorded it, he was required to to produce the instrument on which he had recorded it. In the light of the above, it is held that Pen Drive/Memory Card can not be taken into consideration. It would also be relevant to note here that in the revision petition the petitioner did not raise this plea purposely but the oral submissions were only confined to it.
There is no merit in the petition. The order passed by the lower Court is affirmed. The revision petition is dismissed.
September 11, 2014 (ANITA CHAUDHRY)
reena JUDGE
REENA
2014.09.12 15:27
I attest to the accuracy and
integrity of this document
chandigarh