Kerala High Court
Radeena D.N vs Rahul.K on 13 October, 2020
Author: Bechu Kurian Thomas
Bench: S.V.Bhatti, Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942
OP (FC).No.238 OF 2020
AGAINST THE ORDER COMMON ORDER DATED 19.03.2020 IN I.A.NO.15/2020
AND I.A.NO.17/2020 OF OP 1310/2018 OF FAMILY COURT, KOZHIKODE
PETITIONER :
RADEENA D.N.,
AGED 37 YEARS,
D/O.NARAYANAN.K., RESIDING AT 'VAISHAKHAM',
EAST MUTHAPPANPARA, CHEVAYOOR,
KOZHIKODE DISTRICT, PIN-673017.
BY ADVS.
SRI.M.T.BALAN
SRI.B.JAYABAL
RESPONDENTS :
1 RAHUL.K.,
AGED 40 YEARS, S/O.ASOKAN.K., MAMMILI PARAMBA,
KOMMERI.P.O., VALAYANAND AMSOM,
KOZHIKODE TALUK, KOZHIKODE DISTRICT,
PIN - 673 007.
2 RINOOP NARANGALI,
AGED 37 YEARS, NARANGALI HOUSE,
KARAMOOLA, KUMARANELLOOR, MUKKAM,
KOZHIKODE DISTRICT, PIN - 673 602.
R1 BY ADVS. SRI.V.V.ASOKAN (SR.)
SMT.T.K.SREEKALA
KUM.NARAYANI HARIKRISHNAN
SMT.KALLIYANI KRISHNA B.
SRI.K.I.MAYANKUTTY MATHER
R2 BY ADVS. SMT.KOCHUMOL KODUVATH
SRI.JACOB ABRAHAM
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
13.10.2020, ALONG WITH OP (FC).271/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP (FC) Nos.238 of 2020 & 271 of 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942
OP (FC).No.271 OF 2020
AGAINST THE JUDGMENT IN OP 1310/2018 OF FAMILY COURT, KOZHIKODE
PETITIONER/ 2ND RESPONDENT :
RINOOP NARANGALI,
SON OF GOPALAN N., RESIDING AT NARANGAI HOUSE,
KARAMOOLA, KUMARANALLOOR P.O., MUKKOM,
KOZHIKODE 673 602. REPRESENTED BY POWER OF ATTORNEY
VINU MON, AGED 43 YEARS, SON OF BALAKRISHNAN,
RESIDING AT PAROL HOUSE, PERINGOLOM POST,
KOZHIKODE - 673 571.
BY ADVS.
SRI.JACOB ABRAHAM
SMT.KOCHUMOL KODUVATH
RESPONDENTS :/ PETITIONER & 1ST RESPONDENT :
1 RAHUL.K.,
AGED 40 YEARS, SON OF ASOKAN K., RESIDING AT
MAMMILI PARAMBA, KOMMERI P.O.,
VALAYANADU AMSOM AND DESOM, KOZHIKODE TALUK,
KOZHIKODE DISTRICT - 673 007.
2 RADEENA.D.N.,
AGED 37 YEARS, DAUGHTER OF NARAYANAN.K., RESIDING
AT KUNIYIL, AYATUTH THAZHEKUNIYIL, KEZHARIYUR P.O.,
KOYILANDI VIA KOZHIKODE - 673 307, PRESENTLY
RESIDING AT VAISHAKHAM, EAST MUTHAPPANPARA,
CHEVAYUR, KOZHIKODE - 673 017.
R1 BY ADVS. SRI.K.I.MAYANKUTTY MATHER
SMT.KALLIYANI KRISHNA B.
R2 BY ADVS. SRI.M.T.BALAN
SRI.B.JAYABAL
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
13.10.2020, ALONG WITH OP (FC).238/2020, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP (FC) Nos.238 of 2020 & 271 of 2020
3
JUDGMENT
Dated this the 13th day of October 2020 Bechu Kurian Thomas, J.
These two original petitions are filed under Article 227 of the Constitution of India challenging a common order of the Family Court, Kozhikode in four connected applications, directing the four mobile phone operators to provide call details of certain mobile numbers used from 01.12.2017 till 01.12.2019 and also to furnish details of their tower locations. By the impugned order, the applications filed by the respondent were allowed by the Family Court.
2. The petitioners before this Court are the respondents in O.P.No.1310 of 2018 on the files of the Family Court, Kozhikode, which was filed by the husband in a marital relationship, seeking divorce on the ground of adultery and cruelty. The petitioner in O.P.(F.C.) No.238 of 2020 is the wife while the petitioner in O.P.(F.C.) No.271 of 2020 is the alleged adulteror - 2nd respondent in the Family Court. The husband filed four applications under Order 16 Rule 1 read with Section 151 of the Code of Civil Procedure seeking for directions to the Nodal Officer of BSNL, Vodafone, Jio and Bharti Airtel mobile operators OP (FC) Nos.238 of 2020 & 271 of 2020 4 to produce the call details and tower locations for certain specified period. The said applications are produced as Exts.P4 to P7 in these original petitions. It is alleged that the petitioners before this Court are indulging in adulterous relationship, and are frequently in contact with each other through different mobile phones. Believing that the mobile call details and the tower locations would be a proper evidence before the court to prove adultery and cruelty, the four applications were filed by the husband as aforesaid.
3. The respondents before the Family Court filed separate objections stoutly opposing the applications and also mentioned that the call details and tower locations are stored in a server only for a period of one year and even if there is a direction from the court, the data beyond one year would not be recovered or produced.
4. The Family Court by the impugned order dated 19.03.2020 allowed all the four applications and directed the four mobile phone operators to produce the call records and tower location for the relevant period.
5. For the purpose of easier comprehension in these proceedings, the wife and the alleged adulterer are referred to as petitioners while the husband is referred to as the respondent. We have heard Sri.M.T.Balan and Adv.Jacob Abraham, the learned counsel OP (FC) Nos.238 of 2020 & 271 of 2020 5 for the petitioners. We have also heard Sri.Mayankutty Mather, the learned counsel for the respondent.
6. The learned counsel for the petitioners before us submitted that the impugned order is erroneous. They also submitted that in the nature and circumstances of the case, the applications sought for ought not have been allowed especially since it violates their privacy. On the other hand, the learned counsel for the respondent submitted that if the case of the defendants are true, they need not have any fear about the production of the call details or tower locations. He was argued that the fear of the petitioners against the production of call records casts a shadow of doubt and that the attempt of the petitioners is to prevent clinching evidence from being brought before Court.
7. It is a primary proposition in law that a party to a case cannot be prevented from adducing his evidence. No fetters can be put upon the right of the party to summon documents while adducing evidence, unless there are valid statutory prescriptions prohibiting such rights.
8. The contention of the petitioners before us that they would be put to individual prejudices if the mobile phone call details OP (FC) Nos.238 of 2020 & 271 of 2020 6 are summoned cannot be countenanced. As a party to a litigation, the plaintiff is entitled to adduce all his evidence. In the process of adducing evidence, summoning of document is an important step. Order 16 Rule 1 of the CPC provides that a list of witnesses shall be filed in court by the parties, on whom they propose to call to give evidence or to produce documents and to obtain summons to such persons for their attendance in court. Order 16 Rule 6 deals with the power to summon a person to produce a document. When an application is filed, either for producing a document or for summoning a witness or for both, the court cannot shut out such evidence sought to be adduced, in the absence of any statutory restriction. If the court feels that the circumstances of the case warrant production of such a document or summoning a witness, it is entirely within its domain to do so. When the facts of the case warrant a summons to be issued for production of a document or to give evidence, this Court under Article 227 of the Constitution of India cannot sit in judgment over such orders, unless the order calling for production of a document is capricious or illegal or perverse.
9. Coming to the facts of the case, the allegation of the husband is that the wife had been indulging in adulterous relationship and that amounted to cruelty also. If the husband wants to make out OP (FC) Nos.238 of 2020 & 271 of 2020 7 a case of adultery or cruelty from telephone conversations, conduct and other behavioral patterns, it would not be in the interest of justice to prevent such evidence being brought before the Family Court. The telephonic call details and the mobile tower details are matters of evidence which the husband intends to adduce in his attempt to prove his allegations. Whether or not the said evidence have a bearing is not for the Court to consider at this juncture. A document in the possession of another person can be brought in evidence by recourse to the provisions contained in Order 16 of the CPC. When such a procedure has been availed of by the husband, it cannot be said that the summoning of a document is perverse or illegal.
10. The contention regarding intrusion into privacy has no legs to stand. Privacy as a fundamental right is subject to procedure established by law as per Article 21 of the Constitution of India. Thus a direction by a court of law is certainly within the scope of procedure established by law.
11. The alleged non-availability of call details beyond one year is not a matter to be considered while directing production of the call details. If the call details are available, certainly, pursuant to the orders it will have to be produced. If the details are not available, as rightly observed by the Family Court, it is for the service provider to OP (FC) Nos.238 of 2020 & 271 of 2020 8 report that and convince the court about absence of such details. Petitioners cannot be heard to take up the alleged reason of the unavailability of call details beyond one year to deny the respondent an order summoning the documents.
In the aforesaid circumstances, we find no reason to interfere with the impugned order and dismiss O.P.(F.C.) No.238 of 2020 and O.P.(F.C.) No.271 of 2020 and confirm the order dated 19.03.2020 in I.A.No.15/2020, I.A.No.16/2020 and I.A.No.18/2020 in O.P.No.1310/2018 on the files of the Family Court, Kozhikode.
The original petitions are dismissed.
Sd/-
S.V.BHATTI, JUDGE Sd/-
BECHU KURIAN THOMAS, JUDGE RKM OP (FC) Nos.238 of 2020 & 271 of 2020 9 APPENDIX OF OP (FC) 238/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE O.P.NO.1310/18 DATED 17.12.2018 FILED BY 1ST RESPONDENT BEFORE THE HONOURABLE FAMILY COURT, KOZHIKODE.
EXHIBIT P2 THE TRUE COPY OF THE COUNTER DATED 10.7.2019 FILED BY THE PETITIONER.
EXHIBIT P3 THE TRUE COPY OF THE COUNTER STATEMENT DATED 7.9.2019 FILED BY THE 2ND RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THE I.A.NO.15/2020 DATED 1.1.2020 FILED BY 1ST RESPONDENT.
EXHIBIT P5 THE TRUE COPY OF THE I.A.NO.16/2020 DATED 1.1.2020 FILED BY 1ST RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE I.A.NO.17/2020 DATED 1.1.2020 FILED BY 1ST RESPONDENT.
EXHIBIT P7 THE TRUE COPY OF THE I.A.NO.18./2020 DATED 1.1.2020 FILED BY 1ST RESPONDENT.
EXHIBIT P8 THE TRUE COPY OF THE COUNTER DATED 7.2.2020 TO EXHIBIT P4 PETITION FILED BY THE PETITIONER.
EXHIBIT P9 THE TRUE COPY OF THE COUNTER DATED 7.2.2020 TO EXHIBIT P5 PETITION FILED BY THE PETITIONER.
EXHIBIT P10 THE TRUE COPY OF THE COUNTER DATED 7.2.2020 TO EXHIBIT P6 PETITION FILED BY THE PETITIONER.
EXHIBIT P11 THE TRUE COPY OF THE COUNTER DATED 7.2.2020 TO EXHIBIT P7 PETITION FILED BY THE PETITIONER.
EXHIBIT P12 THE TRUE COPY OF THE APPLICATION UNDER RTI ACT DATED 14.1.20 SUBMITTED BY THE PETITIONER.
EXHIBIT P13 THE TRUE COPY OF THE REPLY DATED 22.1.2020 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER, TELECOM, BNL, CALICUT.
OP (FC) Nos.238 of 2020 & 271 of 2020 10 EXHIBIT P14 THE TRUE COPY OF THE COUNTER FILED BY THE 2ND RESPONDENT TO EXHIBIT P5 PETITION.
EXHIBIT P15 THE TRUE COPY OF THE COUNTER FILED BY THE 2ND RESPONDENT TO EXHIBIT P7 PETITION.
EXHIBIT P16 THE TRUE COPY OF THE COMMON ORDER DATED 19.3.2020 IN EXHIBIT P4 TO P7 PETITIONS OF THE HONOURABLE FAMILY COURT, KOZHIKODE.
OP (FC) Nos.238 of 2020 & 271 of 2020 11 APPENDIX OF OP (FC) 271/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOSTAT COPY OF G.O. O.P. NO. 1310 OF 2018 OF FAMILY COURT, KOZHIKODE.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE COUNTER STATEMENT FILED BY THE 2ND RESPONDENT IN O.P. NO.1301 OF 2018 OF FAMILY COURT, KOZHIKODE.
EXHIBIT P3 TRUE PHOTOSTAT COPY OF I.A. NO. 16/2020 IN O.P. NO. 1310 OF 2018 OF FAMILY COURT, KOZHIKODE.
EXHIBIT P4 TRUE PHOTOSTAT COPY OF I.A. NO. 18/2020 IN O.P. NO. 1310 OF 2018 OF FAMILY COURT, KOZHIKODE.
EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE COUNTER STATEMENT FILED AGAINST I.A. NO. 16/2020 IN O.P. NO. 1310 OF 2018 OF FAMILY COURT, KOZHIKODE.
EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE COUNTER STATEMENT FILED AGAINST I.A. NO. 18/2020 IN O.P. NO. 1310 OF 2018 OF FAMILY COURT, KOZHIKODE.
EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE ORDERS DATED 19.3.2020 PASSED IN I.A. NO. 15/2020, 16/2020, 17/2020 AND 18/2020 OF FAMILY COURT, KOZHIKODE.