Smt. Sushma Patel vs Brijesh Patel

K.K. Trivedi, J.—Heard on the question of admission. This writ petition under Article 227 of the Constitution of India is filed by the defendant before the Family Court, against the order dated 04.05.2013 passed in Civil Suit No. 36-A/2008 (434-A/2007) by which the I Additional Principal Judge, Family Court, Jabalpur has allowed the application made u/s 65 of the Indian Evidence Act by the respondent/plaintiff. It is contended that a suit u/s 11 of the Hindu Marriage Act, 1955 has been filed by the respondent/plaintiff against the petitioner/defendant seeking declaration of the marriage between the parties as null on the ground of fraud. The marriage between the parties was performed on 05.03.2003. It is alleged in the plaint that the petitioner herein was already married and this fact was concealed by the parents of the petitioner and, thus, the marriage between the petitioner and the respondent is a nullity. To prove the fact that the petitioner was already married, a certificate of marriage from Gayatri Shakti Peeth, Manmohan Nagar, Jabalpur, is said to be produced but not in original and only a photocopy of the same. The witness was examined by the respondent to prove such a certificate, who deposed in his Court statement that the original certificate is not available as after the period of five years from the date of marriage, except the register, all records are destroyed by the Society. From the statement of such witness since the certificate could not be proved, the respondent moved an application u/s 65 of the Indian Evidence Act seeking permission of the Family Court to adduce secondary evidence. Such an application was opposed by the petitioner stating that a photocopy of certificate of marriage said to be performed between the petitioner and somebody could not be admitted as secondary evidence under the provisions of Section 63 of the Act aforesaid, therefore, such a permission cannot be granted to the respondent/plaintiff to adduce secondary evidence. However, since by impugned order the application of respondent is allowed, this writ petition is required to be filed.

Upon notice of the writ petition, the respondent has appeared before this Court through counsel and it is stated by learned Counsel for the respondent that as only the question of law is required to be decided, no return is filed by the respondent. However, orally all the allegations made in the writ petition are denied.

Heard learned counsel for the parties at length and perused the record.

Undisputedly, the secondary evidence means and includes certified copies given under the provisions of law, copies made from the original by mechanical process, copies made from or compared with the original, counterparts of the documents and oral accounts of the contents of the document given by some person, who has himself seen it. Undisputedly the document which is sought to be produced as secondary evidence is a photocopy of the original, though not attested or said to be compared with the original. The burden is on the respondent to demonstrate that such a copy was prepared from the original by any mechanical process. Unless it is so proved, such a certificate would not become automatically admissible. The provision of Section 65 of the Act aforesaid specifically prescribes that a secondary evidence may be given of the existence of a document in certain given cases. Naturally a marriage certificate if was obtained by the petitioner herein after performing the marriage, the original of the same would be either with her or with the other spouse. It cannot be in possession of the respondent in any case. It is not the case of the petitioner that such certificate was obtained by the respondent subsequently. The photocopy of the document, which is placed on record, indicates that it was prepared sometime in the year 2002. Who has executed the same, who has signed the same and whether such a certificate was given or not to the petitioner or to other spouse, has to be proved. Unless these evidence are produced, a photocopy of the marriage certificate would not be admissible in evidence. However, there is no bar to afford an opportunity of adducing secondary evidence for the proof of such a certificate. The provisions of Section 65 of the Act nowhere bars production of such a secondary evidence to prove the existence of any such document. This particular aspect has been rightly considered by the Family Court and, therefore, if the permission is granted to the respondent to adduce secondary evidence to prove the existence of the marriage certificate, a photocopy of which is produced by him in the Court, it cannot be said that any prejudice would be caused to the petitioner.

In case such a secondary evidence is produced, the other party, that means the petitioner herein, would also be entitled to examine such witness or to produce evidence in rebuttal, to show that there was no existence of such a marriage certificate. Therefore, again if only permission to adduce secondary evidence to prove existence of a certificate is granted by the Court below, it cannot be said that the Court has committed the error of law or jurisdiction. In such circumstances it is not necessary to exercise the power of superintendence under Article 227 of the Constitution of India to set aside the order passed by the Family Court.

Accordingly, while dismissing the writ petition, it is directed that the respondent would be granted an opportunity only to prove the existence of marriage certificate, photocopy of which is produced before the Court, by adducing secondary evidence and the petitioner would be entitled to rebut the said evidence as also to cross-examine any such witness, if produced by the respondent in terms of the order passed by the Family Court. The writ petition is dismissed with the aforesaid observations.