The Admissibility of video and audio recording evidence in Matrimonial Cases. Can breach of privacy admissible

These days in matrimonial cases audio and video evidence are important evidence in deciding matrimonial cases these days.

Now what if you put a software in the mobile phone of your wife and record all the calls?

What if you record conversation between wife and husband?

What if you do video recording in your own house?

All these questions answer to breach of privacy.

Now the main question is whether the evidence collected in breach of privacy is admissible?

In matrimonial other party may object that audio or video recording collected in the course of trial is in admissible if it is in the breach of the privacy.

The Answer to this is the recent Delhi High Court Judgement ofDeepti Puri Vs. Kunal Julka

The petitioner/wife is the respondent in the aforesaid divorce petition
which was filed on 26.09.2012 by the respondent/husband seeking

dissolution of their marriage on the ground of cruelty available under section
13(1)(ia) of the Hindu Marriage Act, 1955. In the divorce proceedings, the
husband filed a Compact Disc (CD) purporting to contain an audio-video
recording of the wife supposedly speaking with her lady friend, by name
Sugandha, on phone and talking about the husband and his family in a
manner, which the husband claims was derogatory, defamatory and
constituted cruelty to him. In the written statement filed by the wife in the
divorce proceedings, she opposed the taking on record of the CD and the
purported transcript of conversation contained therein. The wife opposed the
CD being brought on record on the ground, firstly, that the contents of the
CD were tampered with and were therefore not authentic ; and secondly, that
the contents of the CD were not admissible in evidence since they were a
recording of a ‘private’ conversation that the wife had had with a friend,
which had been secretly recorded by the husband, without the knowledge or
consent of the wife, in breach of her fundamental right to privacy.

In response to the wife’s objections, the husband moved an
application before the Family Court, in which he in effect sought
appointment of an expert to prove the genuineness of the CD with the
purpose of bringing the CD on record. Agreeing with the husband’s
contentions, by way of impugned order dated 24.12.2018, the Family Court
allowed the husband to bring on record the evidence comprised in the CD,
while directing that the contents of the CD be examined by the Forensic
Science Laboratory (FSL) to assess the genuineness of the recording. By
way of the impugned order, the Family Court has directed the FSL to render
its opinion on the following aspects :

“The FSL shall report :(l) (sic) Whether the contents of CD
and the original recording in the recording device are at
variance? (2) Whether the original recording has been
tempered (sic) with? (3)Whether the transcript relied upon
by the petitioner is correct, as per the original recording?”While the prayer made in the application on which the Family Court has made the impugned order is somewhat ambiguous, the essential question
raised in the present proceeding is as regards the admissibility of the
contents of the CD, since according to the wife, the conversation comprised
in the CD has been recorded in breach of her fundamental right to privacy;
and is therefore inadmissible in evidence.

In this Judgement a Supreme Court judgement was referred

Now, if the Evidence Act, 1872 which is a law consolidating,
defining and amending the law of evidence, no provision of
which is challenged as violating the Constitution — permits
relevancy as the only test of admissibility of evidence (See
Section 5 of the Act) and, secondly, that Act or any other
similar law in force does not exclude relevant evidence on the
ground that it was obtained under an illegal search or seizure,
it will be wrong to invoke the supposed spirit of our
Constitution for excluding such evidence. Nor is it open to us
to strain the language of the Constitution, because some
American Judges of the American Supreme Court have spelt
out certain constitutional protections from the provisions of the
American Constitution. In M.P. Sharma v. Satish Chander
already referred to, a search and seizure made under the
Criminal Procedure Code was challenged as illegal on the
ground of violation of the fundamental right under Article
20(3), the argument being that the evidence was no better than
illegally compelled evidence. In support of that contention
reference was made to the Fourth and Fifth Amendments of the
American Constitution and also to some American cases which
seemed to hold that the obtaining of incriminating evidence by
illegal seizure and search tantamounts to the violation of the
Fifth Amendment. The Fourth Amendment does not place any
embargo on reasonable searches and seizures. It provides that
the right of the people to be secure in their persons, papers and
effects against unreasonable searches and seizures shall not be
violated. Thus the privacy of a citizen’s home was specifically
safeguarded under the Constitution, although reasonable

searches and seizures were not taboo. R
submission, this Court observed at p. 1096:

“A power of search and seizure is in any system of
jurisprudence an overriding power of the State for the
protection of social security and that power is necessarily
regulated by law. When the Constitution makers have
thought fit not to subject such regulation to
constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import it,
into a totally different fundamental right, by some process
of strained construction. Nor is it legitimate to assume that
the constitutional protection under Article 20(3) would be
defeated by the statutory provisions for searches.”

It must be borne in mind that
Family Courts have been established to deal with what are essentially
sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which
they arise, involve issues that are private, personal and involve intimacies. It is easily foreseeable therefore, that in most cases that come before the
Family Court, the evidence sought to be marshalled would relate to the
private affairs of the litigating parties. If section 14 is held not to apply in its
full expanse to evidence that impinges on a person’s right to privacy, then
section 14 may as well be effaced from the statute. And yet, falling back
upon the general rule of evidence, the test of admissibility would only be
relevance ; and accordingly, even ignoring section 14, fundamental
considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be served by emasculating the salutary provisions of section 14 of the Family Courts Act by citing breach of privacy. Looking at it
dispassionately, even assuming evidence is collected in breach of privacy, at
best and at worst, it is the process of collection of evidence that would be
tainted not the evidence itself.

That being said however, considering the breadth of the power
conferred upon it under section 14 of the Family Courts Act, some
safeguards are required to be considered by the Family Court while
exercising its power to receive evidence under that provision. Firstly, even
though a given piece of evidence may have been admitted on the record, the
Family Court must be extremely circumspect in what evidence it chooses to
rely upon in deciding the dispute, particularly the authenticity and
genuineness of the evidence, for which stringent standards must be applied.
Secondly, if in its opinion the nature of the evidence sought to be adduced is
inappropriate, embarrassing or otherwise sensitive in nature for any of the
litigating parties, or for that matter for some other person not directly
connected with the litigation, the court may restrict the parties who are
present in court at the time of considering such evidence ; or may anonymise
or redact the evidence ; or may conduct in-camera proceedings so as not to
cause distress to any person or party, while at the same time not hesitating to
receive evidence that the Family Court considers necessary for effectively
deciding the dispute. All proceedings must be conducted strictly within the
bounds of decency and propriety; and no opportunity should be given to any
party to create a spectacle in the guise of producing evidence. Thirdly, in
egregious cases, the Family Court may initiate or direct initiation of legal
action against a litigating party or other person, who may appear guilty of
procuring evidence by illegal means. Any party aggrieved by the production
of such evidence would also be at liberty to initiate appropriate proceedings,
whether in civil or criminal law, against concerned parties for procuring
evidence illegally, although the initiation or pendency of such proceedings.

The Punjab and Haryana HC in opposite decided that CD cannot be used as evidence on two grounds

Breach of privacy

The circumstances in which the evidence is collected

Adv. Nitish Banka

9891549997

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997