Can the Telephonic conversations be recorded by a Spouse secretly and used as Evidence in Family Court? HC replies, Read Order

 

The Punjab And Haryana High Court recently observed that recording telephonic conversation of the spouse without prior permission is an absolute infringement of his/ her privacy under Article 21 of the Constitution of India.

The single-Judge Bench of Justice Lisa Gill has set aside a Family Court allowed CD of mobile-phone conversations as evidence between husband and wife for the husband to prove cruelity under Sec-13 of the Hindu Marriage Act, 1955 in Divorce case.

Brief Facts of the Case

The petitioner-wife submitted that her husband has filed for divorce before and proceedings for the same are running in the Family Court since 2017. During the proceedings, her husband sought to produce the recording of his telephonic conversation with her as evidence and the Family Court allowed the evidence.

Her Counsel contended that the Court complete go bye to Section 65 of the Indian Evidence Act and didn't comply to Section 65 (B). He further submits that the Privacy Rights of his client has been infringed under Article 21 of the Constitution of India and that the evidence is beyond pleadings.

He added:

"the respondenthusband being very well aware of the conversations allegedly held years prior to filing of the divorce petition was at liberty to have incorporated the same in his pleadings at the very first instance. Furthermore, though, veracity of such conversations cannot be vouched for, even if taken to be correct, the same are not admissible in evidence having been recorded without the consent or knowledge of the petitioner."

The impugned order has been assailed in the present petition.

The Respondent-Husband on the other hand argued that it is absolutely neccessary for him to use the evidence to prove the charge of cruelty levelled by him against his wife so that he could secure a divorce decree.

While while referring to Section 122 of the Evidence Act, his Cousel submitted that there is no question of any infringement of right of privacy and in any case, husband can always be subjected to cross-examination. It was vehemently argued that conversations so recorded, are not beyond pleadings as it has always been the case of the husband that he was treated with cruelty by his wife.

High Court Observation

The Court on the outset noted that the Conversations find no mention in the petition, amended petition and affidavit filed and submitted on behalf of the petitioner. It was only brought up via supplementary affidavit.

"It is thus evident that the husband was well aware of these conversations which could very well have formed part of the pleadings at the very outset, but clearly did not find mention."

The Court added that even if it is accepted that the general averments in the petition regarding cruelty would very well cover the evidence sought to be produced, in my considered opinion the CD’s in question cannot be permitted in evidence.

The Court, however stated that provisions of the Indian Evidence Act, 1872, have been diluted by Section 14 of the Family Court Act which allows it to receive as evidence "any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act."

"The technicalities and procedures otherwise followed by the Civil and Criminal Courts may not be applicable to proceedings before the Family Court. There is in-fact no quarrel with argument of learned counsel for the respondent that a Family Court is not bound by strict rules of evidence", the Court added.

It though remarked that at the same time, it cannot be ignored that acceptance of the CD in question shall amount to a clear breach of fundamental right of the petitioner-wife.

"it cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptiously by one of the parties."

The Court added that couples speak many things with each other, unaware that every word would be weighed in a Court of law.

"To permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act, would indeed not be feasible."

Moreover, the court would be ill-equipped to assess the circumstances in which a particular response may have been illicited from a spouse at a given point of time, notwithstanding the right of crossexamination, the court said.

The Court held that it cannot be said that as the Family Court is not bound by strict rules of evidence, it is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of the wife. The same is 'unacceptable'.

The Court accordingly set aside the impugned order and directed Family Court to to take steps for expeditious disposal of Divorce Suit.

 

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(With input from news agency language)

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