There is confusion in the mind of people at large whether there recording done between the husband and wife can be used as evidence in a court of law.

The problem is different High Court has held differently but the law laid down by the Hon’ble Supreme Court is the final word.

There was the judgment of Hon’ble Supreme Court on privacy Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors which recognized that Privacy as a fundamental right after which only the debate regarding the use of voice recordings as evidence in matrimonial cases can be used or not.

The question is if the wife does not know about the tape-recorded evidence collected on mobile by the husband is it not illegal to record the same as it is a direct breach of the right to privacy of the wife and hence infringes upon her fundamental right?

Such evidence is illegal and cannot be used on the other hand we have family court proceedings and the private life of the couples in which most of the evidence is private in nature how will parties prove their cases when such type of evidence is not relied upon by the courts? Also, the fact maybe the method of obtaining the evidence was tainted but what about the evidence? Still, courts choose to not rely upon the evidence.

We will Analyse 3 Judgements one is the recent Chattisgarh HC judgment second one Punjab and Haryana High Court judgments both judgments are in favor of mobile recording in breach of privacy cannot be used as evidence but there is one Delhi High Court Judgement which says that such evidence even if it is breach of privacy can be relied upon as right to privacy is not absolute and maybe the method was tainted but evidence itself is relevant and admissible.

Let us study Chattisgarh High Court Judgement

In this Judgement court has held that mobile recordings, recorded without the consent of the parties is in admissible.

In the judgement of Aasha Lata Vs. Durgesh Soni

In this case, the petitioner challenged an order from the Family Court in Chhattisgarh that allowed the respondent’s application to summon a witness for further cross-examination. The petitioner had filed an application under Section 125 of the CrPC for maintenance in 2019, and the case was at the stage of examining witnesses and producing documents. The respondent, the husband, filed an application under Section 311 of the CrPC to re-examine the petitioner, based on recorded conversations from his mobile phone.

The petitioner argued that allowing this application infringed her right to privacy, as the conversations were recorded without her knowledge. They cited legal precedents, including the R.M. Malkani case and the Mr. ‘X’ case, which emphasized the importance of protecting the privacy of telephone conversations. The petitioner also referred to the Madhya Pradesh High Court’s judgment in the Arunima Mehta case, which held that recording conversations without the knowledge of one party was a violation of privacy and inadmissible as evidence.

The court considered these legal precedents and found that recording conversations without consent constituted an infringement of the right to privacy, as guaranteed by Article 21 of the Constitution of India. As a result, the court set aside the Family Court’s order, stating that it had erred in allowing the re-examination based on the recorded conversations.

In summary, the court held that the right to privacy, including telephone conversations, is an essential component of the right to life under Article 21 of the Constitution, and recording conversations without consent violated this right. Therefore, the Family Court’s order was set aside, and the petitioner’s challenge was upheld.

Punjab and Haryana High Court Judgement

In the case of Vibhor Garg case which was decided on 12th November 2021 in the High Court of Punjab and Haryana at Chandigarh, several key issues were addressed. CR No. 1616 of 2020 was filed by the wife against the order of the Family Court, which allowed the husband to use a Compact Disc (CD) containing recorded conversations as evidence in his divorce case. The husband filed CR No. 2538 of 2020, seeking an expedited resolution of the divorce case.

The wife argued that the CD’s content was beyond the pleadings and a violation of her privacy rights. She contended that the CD’s admission would infringe upon her constitutional right to privacy under Article 21 of the Indian Constitution. She also claimed that the CD was inadmissible under Indian Evidence Act Section 65-B.

The court considered the applicability of Section 14 of the Family Court Act, which allows family courts to receive evidence not otherwise relevant or admissible under the Indian Evidence Act. However, the court emphasized that even though family courts have some leeway in admitting evidence, the right to privacy must still be respected.

The court ruled that accepting the CD would breach the wife’s right to privacy, as recording conversations without her knowledge violated her fundamental rights. It also noted that the circumstances under which the conversations were recorded could not be ascertained, and they could potentially be misused. As a result, the CD’s admission as evidence was not justified.

The court set aside the Family Court’s order and directed the Family Court to expeditiously resolve the divorce case within six months. CR No. 1616 of 2020 was allowed, and CR No. 2538 of 2020 was disposed of.

This case highlights the delicate balance between the admissibility of evidence, privacy rights, and the unique rules that apply to family court proceedings. The court prioritized the protection of privacy rights in this instance.

Delhi High Court Judgement

In the Delhi High Court Judgement Deepti Kapur Vs. Kunal Julka which relied on various supreme court authorties held that

1. Admissibility of Evidence: The central point is that evidence is admissible as long as it is relevant, regardless of how it was collected. Deviating from this principle could disrupt legal proceedings, but misuse of this rule in the context of privacy can be addressed through judicial discretion during adjudication.
2. Threshold Test: Admitting evidence does not equate to proving a fact-in-issue. The court has the discretion to decide what evidence to rely on.
3. Consequences of Illegal Evidence: If evidence is obtained illegally and admitted in court, it does not absolve the collector of potential legal liabilities in civil or criminal law.
4. Privacy Rights: It acknowledges that the right to privacy, while recognized as a fundamental right, does not necessarily alter the principles of evidence admissibility. Precedents like MP Sharma, Pooran Mal, and Yashwant Sinha are cited in this context.
5. Caution with Tape Recordings: The passage emphasizes that tape recordings can be tampered with, and, therefore, courts should be cautious and apply stringent standards for their authenticity.
6. Safeguards in Family Court: The Family Court is encouraged to consider safeguards, such as protecting sensitive evidence, conducting in-camera proceedings, and initiating legal actions in cases of illegal evidence procurement.
7. Concerns about Marital and Family Relationships: The text expresses concerns about the potential misuse of evidence collection within family relationships, highlighting the need to preserve the sanctity of such relationships.

In conclusion, while acknowledging the importance of adhering to legal principles, the text emphasizes the need for caution and discretion, especially when dealing with evidence collected in family court cases. It underscores the potential harm that could arise from unchecked and illegal evidence collection in personal relationships. Despite these concerns, the court in the case found no issues with the order in question, and the petition was disposed of.

Various SC Judgements relied on:

The passage makes several references to Supreme Court precedents to support its arguments. Here are some of the Supreme Court cases mentioned in the passage:

1. MP Sharma: This case is mentioned in the context of allegations of violation of fundamental rights, specifically under Articles 20(3) and 14 of the Constitution. It predates the recognition of the right to privacy as a fundamental right in Puttaswamy.
2. Pooran Mal: Like MP Sharma, Pooran Mal’s case is cited regarding allegations of the violation of fundamental rights. The passage suggests that the principle established in Pooran Mal has been followed in subsequent Supreme Court cases.
3. Puttaswamy: This landmark case is referenced as the authoritative recognition of the right to privacy as a fundamental right. The passage suggests that the recognition of privacy as a fundamental right did not fundamentally alter the principles of evidence admissibility.
4. Yashwant Sinha: Yashwant Sinha’s case is cited as a post-Puttaswamy judgment in which the principle of Pooran Mal was followed. This case pertains to documents procured illegally from a ministry and not in violation of any fundamental right.

By 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