1 wp-6456n6457.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6456 OF 2010 WITH WRIT PETITION NO. 6457 OF 2010 WP NO. 6456 OF 2010 M/s. Geeta Aluminum Pvt. Ltd. .. Petitioner Vs The State of Maharashtra & Ors. .. Respondents ­­ WITH WP NO. 6457 OF 2010 Mrs. Seema S. Babel .. Petitioner Vs The State of Maharashtra & Ors. .. Respondents ­­ Shri Havnoor i/by Shri Satish Mishra for the Petitioner in both the Petitions. Shri P.G. Sawant, “A” Panel Counsel for Respondent No.1 in both the Petitions. Shri R.T. Lalwani for Respondent No.2 in both the Petitions. Shri A.M. Saraogi for Respondent No.3 in both the Petitions. ­­ CORAM : A.S.OKA, J. DATE : 6TH SEPTEMBER, 2010 ORAL JUDGMENT : . On 23rd August, 2010, this Court directed that the petitions 2 wp-6456n6457.10 shall be decided finally at the stage of admission. These two petitions arise out of a matrimonial dispute. The Petitioners in these two petitions are strangers to the matrimonial dispute and they are not the parties to the main petition pending in the Family Court. The order impugned in these two petitions under Article 227 of the Constitution of India has been passed on an application made by the 2nd Respondent/husband for issuing witness summons. There is a matrimonial dispute pending before the Family Court between the 2nd Respondent and the 3rd Respondent. 2. It is stated in the application that according to the 2nd Respondent, the 3rd Respondent/wife has been gainfully employed and that this fact has been suppressed. It is stated that during the period from August, 2007 till October, 2008, the 3rd Respondent­ wife was working for a company known as M/s. Geeta Aluminum Pvt. Ltd ( Petitioner in Writ Petition No.6456 of 2010). It is alleged in the application that the wife was employed during the said period in the said company during week days and was giving lectures at Vasai Vikas College of Visual Arts, Vasai (East). It is alleged that the wife has been using a Cell Phone No.9819848932 which stands in her own name and her alleged employer ( i.e. the Petitioner in Writ Petition No.6456 of 2010) had provided a Cell Phone bearing No. 9920590496. It is contended that even after October, 2008, the wife has been working which fact can be established from the records of the aforesaid Cell Phone numbers. The prayer in the application at Exhibit­70 reads thus:­ 3 wp-6456n6457.10 “(a) That this Hon’ble Court may be pleased to pass an order directing The Nodal Officer, Vodafone Ltd., Andheri (E), Mumbai to depute any responsible officer to attend this Hon’ble Court on the next date of hearing to give evidence and produce the following documents; (i) The account details of Cellular Numbers 9819848932 and 9920590496 from August, 2007 till date. (ii) The call details and Cell Site details i.e. the technical details with the identification of the area along with CDR details of Cellular Number Cell Phone No.9819848932 from August, 2007 till date. (iii) The call details and Cell Site details i.e. the technical details with the identification of the area along with CDR details of Cellular Number 9920590496 from August 2007 till October, 2008.” 4 wp-6456n6457.10 3. It is not in dispute that the impugned order has been acted upon and necessary record has been produced before the Family Court which has been kept in a sealed envelope. 4. Learned counsel appearing for the Petitioner in support of both the petitions has made extensive submissions. In support of Writ Petition No.6456 of 2010 filed by M/s. Geeta Aluminum Pvt. Ltd., it is contended that one of the two cellular phones ( 9920590496 ) is of the Petitioner and the impugned order has been passed without hearing the Petitioner. It is contended that it is a right of the Petitioner to keep information concerning its cell phones confidential. He invited attention of the Court to the averments made in the Petition. He submitted that for the purposes of business of the Petitioner, the information has to be kept confidential. He stated that the wife was never working with the Petitioner. He submitted that the impugned order has been passed without notice to the Petitioner. 5. In support of Writ Petition No.6457 of 2010, learned counsel appearing for the Petitioner submitted that the Cell Phone No.9819848932 stands in the name of the Petitioner who is the sister of the wife. It is submitted that the witness summons for production of call details and cell site details in respect of the said cell phone cannot be ordered to be produced without consent of the Petitioner and in any case without hearing 5 wp-6456n6457.10 the Petitioner. 6. Learned counsel appearing for the husband submitted that Writ Petitioner M/s. Geeta Aluminum Pvt. Ltd. has not denied that the cell phone standing in its name was allowed to be used by the wife. He submitted that the information was necessary to prove the case of the husband that the wife is employed with M/s. Geeta Aluminum Private Limited. He submitted that as far as the other cell phone number claimed by the sister of the wife is concerned, a stand taken all along by the wife is that it is her cell phone number which is of a Pre­paid Account and, therefore, she was not in a position to produce the bills in respect thereof. He submitted that the the wife was using the said cell phone and there is no material to show that it is owned by the Petitioner in Writ Petition No.6457 of 2010. He submitted that in view of the representation made by the wife herself, the impugned order has been passed and there is no material produced on record to show that the cell phone number is of her sister. He submitted that in any event, compliance has been made with the impugned order and necessary details have been produced before the Family Court and it is for the said Court to decide the issue of relevancy and evidentiary value of the material produced and this Court in exercise of power under Article 227 of the Constitution of India cannot interfere. It must be noted here that when the Petitions were heard on the last date, even learned counsel for the 3rd Respondent­wife was heard. Today, the learned counsel for the wife has stated that the wife has also challenged the impugned 6 wp-6456n6457.10 order and, therefore, all the three petitions should be considered together. The said request cannot be acceded to inasmuch as these two writ petitions have been fully argued on the earlier in presence of the learned counsel appearing for the wife and the petition filed by the wife will have to be considered on its own merit. 7. I have considered the submissions. Perusal of the application at Exhibit­70 made by the husband shows that it is his case that the wife was employed with M/s. Geeta Aluminum Private Limited from August, 2007 till October, 2008. Another contention is that the wife was delivering lectures at week ends at Vasai Vikas College of Visual Arts, Vasai (East). A specific case is made out in paragraph 3 of the application that the Cell Phone No. 9920590496 has been provided to the wife by M/s. Geeta Aluminum Pvt. Ltd. During the course of submissions, the learned counsel appearing for M/s. Geeta Aluminum Private Limited was called upon to show averments in the Petition that the said company had not allowed the wife to use the said cellular phone. The learned counsel appearing for the Petitioner could not point out any such averment in the Petition and he pointed out the averment that the wife is not working for the said company at any point of time. Thus, it is not the case of the Petitioner that what is stated in the application at Exhibit­70 is not correct. A specific averment made in the application at Exhibit­70 reads thus:­ “.....besides she was provided another cellular phone being No.9920590496 by her employers namely Geeta 7 wp-6456n6457.10 Aluminum. I say that both these connections are of Vodafone Company. I say that the said cellular company has records from which it can be ascertained as to from which place the said phones were used as and when any calls were made / received.” 8. There is no specific averment in the petition that the petitioner company did not allow the wife to use the said cell phone. Thus, there is no dispute that the wife was allowed to use the said cell phone which according to the Petitioner in Writ Petition No.6456 of 2010 stands in its name. The husband wants details of the cell phone number including cell site details to prove that the wife was working with the said petitioner company. In absence of the averment in the said writ petition that the cell phone was not used by the wife, the husband cannot be prevented from leading evidence to show and produce the cell site details of the said cell phone. This evidence may be relevant as the contention of the husband is that the wife was employed with the said company from August, 2007 onwards. Therefore, it is not possible to find fault with the impugned order. It is pertinent to note that the allegation is not that the wife was employed with the said company from August, 2007 till October, 2008 and as per the impugned order, call details and cell site details of the said cell phone number from August, 2007 till October, 2008 have been ordered to be produced and the details of the earlier and subsequent period have not been ordered to be produced. Hence, as far as Writ Petition No.6456 of 2010 is concerned, no fault can be found with the impugned order. 9. As far as Writ Petition No. 6457 of 2010 is concerned, it seems 8 wp-6456n6457.10 that before the Family Court, the wife came out with a contention that the Cell Phone No.9819848932 is her own cell phone. In Writ Petition No. 6457 of 2010, the Petitioner has come out with a specific case that she is a subscriber of the said cell phone number. 10. As pointed out earlier, the entire record has been already produced before the Family Court. The record of the cell phone held by the petitioner in Writ Petition no.6456 of 2010 is relevant because the case of the husband is that the wife was in the employment of the said company. The record of the said cell phone has been sought for a specific period during which the wife was allegedly in the employment of the said company. The case of the other cell phone stands on a separate footing. The record as far as the cell phone number 9819848932 is concerned can be looked into provided the cell phone connection stands in the name of the wife. The record produced pertaining to the said cell phone will have to be ignored if it is found that the cell phone connection stands in the name of the Petitioner in the said Writ Petition being WP No.6457 of 2010. Learned counsel appearing for the husband submitted that as the wife has admitted user of the said cell phone connection, the details will be necessary especially when it was a case of the husband that at week ends the wife has been delivering lectures in Vasai Vikas College of Visual Arts, Vasai (East). However, it is for the husband to lead appropriate evidence regarding alleged employment of the wife with the said Vasai Vikas College of Visual Arts, Vasai (East) and that is no ground for production of call 9 wp-6456n6457.10 details and cell site details if cell phone connection does not stand in the name of the Petitioner. 11. Hence, I pass the following order. (a) Writ Petition No. 6456 of 2010 stands dismissed. (b) Writ Petition No. 6457 of 2010 is concerned, after opening the sealed envelope, the learned Judge of the Family Court will examine the account details of the Cell Phone No. 9819848932 and will read and consider the data pertaining to the said cell phone number provided the wife herself is shown as the subscriber. If the wife is not shown as the subscriber, the documents pertaining to the said cell phone number shall be kept in a separate sealed envelope and the same shall not be opened and looked into. To that extent, the impugned order stands modified. (c) It is made clear that all the contentions of the parties in the main Petition pending before the Family Court are kept open and no observation made in this order shall be construed to mean that any adjudication has been made by this Court as regards the merits of the 10 wp-6456n6457.10 main petition. (d) The learned counsel appearing for the Petitioner in Writ Petition No.6456 of 2010 seeks continuation of ad­interim relief granted earlier. The prayer is rejected. (A.S.OKA, J)