Ker HC | S. 75 of CPC does not include “appreciation of evidence for reporting to the court” within its ambit

Kerala High Court: A Division Bench of K. Harilal and Annie John, JJ. upheld the appeal filed against the order of the family court whereby the respondent by accepting the participation in the programme in the CD has proven the fact.

In this case, parties who were participants of a reality TV show got married. But later an original petition was filed by the wife (respondent herein) seeking dissolution of marriage and another petition was filed by her seeking a decree for return of money and gold ornaments from her husband (petitioner herein). The husband filed an application seeking appointment of an Advocate commission to see the CD of their participation in the TV show where they were shown as having spent happy times together. The wife objected to the same contending that contents of CD were not relevant for the determination of issue involved in the petitions filed by her. The Family Court dismissed the husband’s application. Aggrieved thereby, the husband filed the instant petition.

The issue before the court was whether an Advocate Commission can be appointed to play a CD, evaluate its contents and report about the same to the court. 

The Court noted that as per Section (3) of Evidence Act, 1872 the court must make an opinion as to ‘proved or not proved’, after considering the matters before it. Thus, the power of appreciation of evidence is vested with the court alone, and it can never be relegated to an Advocate Commission and the court itself must evaluate the contents of a CD. 

Further, it was opined that Section 75 of Code of Civil Procedure, 1908 specifies circumstances for issuance of a Commission, and “appreciation of evidence for reporting to the court” was not specifically included in the said provision.

It was also opined that the TV show was an edited stage-managed programme and therefore contents of CD could not be considered as incidents having occurred in the parties’ real marital life. It was held that the edited stage-managed programme in the CD was not a fact or issue or relevant fact in the suit or proceeding. Further, the court held that the respondent herself had admitted her participation in the programme in the CD and it would amount to an admission by the party to the extent of participation only and nothing could be proved beyond it. According to Section 58 of the Evidence Act, facts admitted need not be proved.

In such view of the matter, the Court held that there is no reason to interfere with the impugned order. Hence, the petition was dismissed.[Nishad v. Najma, OP (FC) No. 238 of 2019, decided on 26-08-2019]

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