IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.03.2017 CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(PD).No.1130 of 2017 and C.M.P.No.5432 of 2017 Rejitha ... Petitioner Vs.
Vikram V.Rajkumar ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the erroneous order and decree made in I.A.No.1812 of 2016 in I.A.No.2157 of 2015 in O.P.No.4236 of 2013 dated 14.12.2016 on the file of the II Additional Family Court at Chennai.
For Petitioner : Mr.S.Senthilnathan For Respondent : Mr.R.Esakkiraja
O R D E R
Challenging the order passed in I.A.No.1812 of 2016 in I.A.No.2157 of 2015 in O.P.No.4236 of 2013 on the file of the II Additional Judge, Family Court, Chennai, the petitioner, who is the wife of the respondent, has filed the above civil revision petition.
2. The respondent/husband filed O.P.No.4236 of 2013 for divorce on the ground of cruelty. The petitioner/wife filed her counter and is contesting the Original Petition. In the said Original Petition, the petitioner/wife filed an application in I.A.No.2157 of 2015 under Section 24 of the Hindu Marriage Act, claiming interim maintenance. In the said maintenance petition, the respondent/husband filed counter and subsequently also filed additional counter. In the additional counter, the respondent contended that the petitioner is leading an adulterous life and therefore, she is not entitled to maintenance. After filing the additional counter in I.A.No.2157 of 2015, the respondent filed an application in I.A.No.1882 of 2016 and the order passed therein was challenged before this Court in CRP(PD)No.2916 of 2016. This Court, by order dated 17.10.2016, while disposing of the civil revision petition, observed as follows:
"5. The fact that adulterous life was not taken as a ground earlier cannot be a reason to reject the additional pleading, as it was filed only in the interlocutory application filed by the petitioner. Merely because the respondent has not taken a stand in his original petition that the petitioner has been leading an adulterous life, that would not deny him an opportunity to oppose the application filed for maintenance, by contending that being a woman leading an adulterous life, she is not entitled to maintenance. This aspect was considered by the learned trial Judge and the application was rightly allowed. I do not find any error or illegality in the order warranting interference by this Court by exercising the revisional jurisdiction."
3. After the disposal of the CRP(PD)No.2916 of 2016, the respondent filed an application in I.A.No.1812 of 2016 to permit him to produce the additional documents and also photographs and prove the contention of adultery and also the bank statements to prove the earnings of the petitioner/wife. The said application was filed in the maintenance petition in I.A.No.2157 of 2015. The petitioner/wife filed her counter disputing the averments stated in the affidavit filed in support of the petition and also stating that the photographs and videograph captured and sought to be produced in the maintenance petition are not genuine. The Family Court, taking into consideration the case of both the parties allowed the petition and permitted the respondent to mark the documents and also the photographs and videograph in the maintenance petition. Aggrieved over the same, the wife has filed the above Civil Revision Petition.
4. It is settled position that a document can be marked only through the author of the document or if a photograph is being marked, it can be marked only through the person who has taken the photograph. Similarly, it is the case of videograph also. In the case on hand, the respondent sought to mark the document through himself, which cannot be permitted. Admittedly, the respondent is not the person who has taken the photographs. That being the case, in view of the order passed by this Court in CRP(PD)No.2916 of 2016, the respondent can be allowed to mark the photographs and videograph through the person who has taken the photographs and videograph.
5. The ratio laid down in the judgment reported in 2006 (2) CTC 43 [P.Rama Srinivasa Rao v. Dr.N.Ragavan] squarely applies to the facts and circumstances of the present case. Following the ratio laid down by this Court, I am of the considered view that the respondent/husband can be permitted to mark the document through the photographer who has taken the photographs and videograph and the same cannot be marked through P.W.1 himself. It is also made clear that the production of the said photographs and videograph are subject to proof and the petitioner/wife shall have the liberty of cross examining the witnesses with regard to genuineness of the photographs and videograph.
6. It is brought to the notice of this Court that the Family Court, Chennai, after allowing the application in I.A.No.1812 of 2016 had permitted the respondent/husband to mark the document on 21.03.2017. Since the said photographs and videograph were marked against the settled principle of law, I direct the Family Court, Chennai to eschew the said documents and however, the said photographs and videograph can be marked through the photographer who has taken the photographs. It is open to the respondent/husband to mark the said document through the photographer.
With these observations, the fair and decretal order passed in I.A.No.1812 of 2016 in I.A.No.2157 of 2015 in O.P.No.4236 of 2013 are set aside. The Civil Revision Petition is allowed. The II Additional Judge, Family Court, Chennai is directed to dispose of the Original Petition in O.P.No.4236 of 2013 on or before 30.06.2017 on merits and in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes/No 22.03.2017 Internet : Yes
NOTE TO OFFICE: Issue order copy by 24.03.2017 To
The II Additional Judge, Family Court, Chennai.
M.DURAISWAMY,J.
Gms C.R.P.(PD).No.1130 of 2017 22.03.2017 M.DURAISWAMY,J., C.R.P.(PD) No.1130 of 2017 & C.M.P.No.5432 of 2017 At the instance of the learned counsel appearing for the respondent, the matter has been listed today under the caption “for being mentioned”.
2. The learned counsel appearing for the respondent submitted that though this court has given liberty to the respondent to mark the documents through the Photographer, who had taken photographs and videograph, in the last paragraph of the order, this court had set aside the order passed in I.A.No.1812 of 2016 in I.A.No.2157 of 2015 in O.P.No.4236 of 2013 and allowed the Civil Revision Petition.
3. Since this court had given liberty to the respondent to mark photographs and videograph through a person who had taken the same, the Registry is directed to amend the last paragraph of the order dated 22.03.2017 as follows:-
With these observations, the fair and decreetal order passed in I.A.No.1812 of 2016 in I.A.No.2157 of 2015 in O.P.No.4236 of 2013 M.DURAISWAMY,J., Rj are modified. The Civil Revision petition is disposed of. The II Additional Judge, Family Court, Chennai is directed to dispose of the Original Petition in O.P.No.4236 of 2013 on or before 30.06.2017, on merits and in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.
4. In all other aspects, the order of the court dated 22.03.2017 passed in the above Civil Revision Petition shall remain unaltered.
5. The Registry is directed to issue corrected copy of the order to the learned counsel on either side.
28.03.2017 Rj C.R.P.(PD) No.1130 of 2017 & C.M.P.No.5432 of 2017