1 WP.103.2011.odt mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.103 OF 2011 Mahesh Wamanrao Jadhav ...Petitioner Vs. Ujwala Mahesh Jadhav ...Respondent Mrs. Seema Sarnaik for the Petitioner Mr. Imtiyaz Patel for the Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 3RD MARCH, 2011 P.C. : 1. Rule. Made returnable forthwith. 2. This Petition concerns itself with the procedural aspects of evidence. The elementary provisions of law are required to be first stated: 1. Admitted facts are not required to be proved. 2. Evidence is a statement of only disputed facts. 3. The disputed facts may be proved by oral or documentary evidence. 4. Documentary evidence consists of private or public documents. 5. Documentary evidence also may be by electronic evidence. 2 WP.103.2011.odt 6. All the evidence which is required to be proved by a particular party has to be relied upon, referred to, produced and offered for inspection before it becomes a part of the record of the Court. 7. All the evidence which is not required to be proved by a particular person giving evidence, but is sought to be used in the cross examination of the other parties need not be referred to, relied upon, produced or offered for inspection before it is used in the cross examination (See Order 7 Rule 14, Order 8 Rule 1A and Order 13 Rule 1(3). 3. Tape recorded conversation is a part of documentary evidence. Like any other documentary evidence it can be used in the cross examination of the other party for the first time before it is relied upon or offered for inspection. The Petitioner sought to do that in the application made before the Family Court, which came to be rejected. 4. It may at once be mentioned that the application of that kind is redundant. The Petitioner sought to rely upon an electronic document as he would rely upon any other documentary evidence. However, he sought to rely upon that document well after the entire evidence of the parties was closed. 3 WP.103.2011.odt 5. The Petitioner filed the Petition. He led evidence of himself and 2 other witnesses. Thereafter the wife led her evidence. She was cross examined. Her cross examination has been recorded on 12 th December 2009, 14 th January 2010, 25 th February 2010, 05 th August 2010 and 16 th August 2010 / 16 th September 2010. 6. There is a dispute with regard to the wife’s love for cats in the house. In the evidence recorded on 14 th January 2010 the wife had volunteered to state that a stray cat had been brought to her home by the husband. On 5 th August 2010 the wife in her cross examination admitted that cats used to sleep in her bed because she used to sleep alone when the Petitioner had shift duty. She was shown a photograph. She admitted that cats were sleeping on her bed and she was sitting on the floor. 7. There is also a dispute with regard to the male friends of the wife and the conversation had by the wife with her male friends. In the cross examination recorded on 16 th August 2010 the wife has denied that she had gone to Goa with her male friends. She has also denied the recorded conversation with her friend Hasmukh or Sandeep. The wife has however admitted the fact that the husband used to keep the record of the telephonic conversation on a recorder. She has volunteered to state that the husband was of a suspicious nature. Her 4 WP.103.2011.odt evidence recorded on 5 th August 2010 shows that the husband used to keep a recorder in the drawer. When she inquired about that he immediately closed the drawer. 8. A reading of the evidence shows that the wife has admitted her love for cats. The wife has denied her conversation with her friends Hasmukh and Sandeep. The wife has admitted that telephonic conversations were recorded on a recorder. 9. The husband sought to produce the tape recorded conversation along with a transcript to cross-examine the wife under his application made to the Family Court. The Family Court has rejected his application erroneously on the ground that he had not relied upon it as his document and offered it for inspection. However, the Family Court has rightly rejected it on the ground that it was sought to be used far too late and after both the parties had closed their case. 10.The husband would be entitled to rely upon the recorded conversation. The husband would be entitled to confront his wife upon her denial of the facts put to her which are recorded by him. However, that had to be done before her cross examination was closed. Consequently, the impugned order cannot be completely faulted. The time at which the application was needlessly sought to be made was improper. Yet parties must be entitled to produce all the evidence to 5 WP.103.2011.odt determine the entire truth of the case. Under these circumstances though the husband would not be entitled to cross examine the wife any further, upon her denial relating to the conversation with her two friends, Hasmukh and Sandeep, the husband has made out a fit case for being entitled to lead evidence in rebuttal. 11.Consequently, in the interest of justice the husband shall be entitled to lead further evidence as per proper procedure relying upon conversation recorded by him, which fact is admitted by the wife. The husband has relied upon the audio cassette on which the conversation is recorded. The husband shall give a copy of the audio cassette as also a copy of the transcript to the wife. Such tape recorded conversation, upon identification by the husband, shall be marked in evidence as an exhibit. The husband shall be entitled to lead further evidence in rebuttal with regard to the conversation had by the wife with her friends Hasmukh and Sandeep. It is clarified that the reliance upon the tape recorder shall be only with regard to the conversation had by the wife with her two friends Hasmukh and Sandeep, which is a fact disputed by the wife and required to be proved by the husband. 12.Rule is granted to that extent. Writ Petition is disposed off accordingly. (SMT. ROSHAN DALVI, J.)