69-year-old man can use taped talk against wife: HC
MUMBAI: The Bombay high court has allowed a 69-year-old man caught in a divorce battle to use taped telephone conversations to confront his wife of 20 years.
Meher Mistry (49), a resident of Malabar Hill, had opposed her husband Navroze Mistry's application to produce a CD of the recorded conversations, where she apparently asks him to leave her father's house. Justice Roshan Dalvi allowed Mistry to use the conversation when cross-examining Meher.
"Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner," said the judge, adding, "In the cross-examination of a party any document can be produced and the witness under cross examination can be confronted (with it)."
Meher, who runs a catering service, had moved the high court in 2008 seeking divorce from Mistry, her husband of 20 years, on grounds of cruelty. Parsi matrimony cases are heard in the HC and not in the family court. The couple has two children.
Mistry, now based in Pune, in turn levelled allegations against his wife, and sought to confront her with her personal diary and the telephone conversations during the cross-examination
Meher's lawyers Narayan Suvarna and Ansuya Dutt objected saying that Mistry had not notified them earlier or mentioned the CD in the list of documents that he was going to rely on. The lawyers argued that Mistry could have recorded it on a tape recorder, audio cassette, MP-3 player, Dictaphone, computer or even on his mobile phone, but the original recording was not produced. Advocate Taubon Irani, Mistry's counsel, said an application had already been made for verifying Meher's voice.
The court did not agree with Meher's lawyers that the CD's contents and transcriptt could not be used during the cross-examination. The HC referred to the Civil Procedure Code that allows a party to produce documents for the first time during cross examination.
The court further said that the stage of verifying the authenticity of the tapes would come later. Citing Supreme Court judgments, the HC said that the tapes would have to pass three tests—relevance, identification of the voice, and accuracy of the taped conversation. Since the content of the tapes reportedly comprise of Meher asking Mistry to leave her father's house, the court said that it was relevant to the divorce proceedings. The question of identification of the voice would arise if Meher denied that it is her voice. Mistry could then identity the voice himself or through witnesses or as a last resort seek the opinion of a forensic expert. To prove the accuracy of the conversations, Mistry would have to produce the original recordings, said the HC. "If the tests are not passed, the tape recorded conversation would be of no use ultimately,'' observed the judge.
Meher's lawyers then raised doubts on the authenticity of the CD claiming it was not sealed, but the court declined to accept this. The judge said that the requirement of sealing would be applicable only in a criminal case where the investigation officer seals the intercepted conversations. "When the defendant himself has recorded the conversation of the plaintiff as a party in a civil suit (and) is required to keep custody of his own documents, there is no question of the requirement of sealing. It has nevertheless to be shown to be accurate and untampered with,'' said the judge.
(Names of the couple have been changed to protect their identity)
In the divorce case filed by Meher Mistry (49) against her husband Navroze (69) in the High Court, Navroze had sought to produce a CD of their conversations where she had reportedly asked him to leave her father's house
Meher Mistry (49), a resident of Malabar Hill, had opposed her husband Navroze Mistry's application to produce a CD of the recorded conversations, where she apparently asks him to leave her father's house. Justice Roshan Dalvi allowed Mistry to use the conversation when cross-examining Meher.
"Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner," said the judge, adding, "In the cross-examination of a party any document can be produced and the witness under cross examination can be confronted (with it)."
Meher, who runs a catering service, had moved the high court in 2008 seeking divorce from Mistry, her husband of 20 years, on grounds of cruelty. Parsi matrimony cases are heard in the HC and not in the family court. The couple has two children.
Mistry, now based in Pune, in turn levelled allegations against his wife, and sought to confront her with her personal diary and the telephone conversations during the cross-examination
Meher's lawyers Narayan Suvarna and Ansuya Dutt objected saying that Mistry had not notified them earlier or mentioned the CD in the list of documents that he was going to rely on. The lawyers argued that Mistry could have recorded it on a tape recorder, audio cassette, MP-3 player, Dictaphone, computer or even on his mobile phone, but the original recording was not produced. Advocate Taubon Irani, Mistry's counsel, said an application had already been made for verifying Meher's voice.
The court did not agree with Meher's lawyers that the CD's contents and transcriptt could not be used during the cross-examination. The HC referred to the Civil Procedure Code that allows a party to produce documents for the first time during cross examination.
The court further said that the stage of verifying the authenticity of the tapes would come later. Citing Supreme Court judgments, the HC said that the tapes would have to pass three tests—relevance, identification of the voice, and accuracy of the taped conversation. Since the content of the tapes reportedly comprise of Meher asking Mistry to leave her father's house, the court said that it was relevant to the divorce proceedings. The question of identification of the voice would arise if Meher denied that it is her voice. Mistry could then identity the voice himself or through witnesses or as a last resort seek the opinion of a forensic expert. To prove the accuracy of the conversations, Mistry would have to produce the original recordings, said the HC. "If the tests are not passed, the tape recorded conversation would be of no use ultimately,'' observed the judge.
Meher's lawyers then raised doubts on the authenticity of the CD claiming it was not sealed, but the court declined to accept this. The judge said that the requirement of sealing would be applicable only in a criminal case where the investigation officer seals the intercepted conversations. "When the defendant himself has recorded the conversation of the plaintiff as a party in a civil suit (and) is required to keep custody of his own documents, there is no question of the requirement of sealing. It has nevertheless to be shown to be accurate and untampered with,'' said the judge.
(Names of the couple have been changed to protect their identity)
In the divorce case filed by Meher Mistry (49) against her husband Navroze (69) in the High Court, Navroze had sought to produce a CD of their conversations where she had reportedly asked him to leave her father's house
