- The Punjab and Haryana High Court, in an order dated December 12, 2021, held that the learned Family Court's acceptance of a CD allegedly containing conversations between the husband and wife was secretly recorded without the wife's consent or knowledge and allowing the husband's application is unjustified.
- The recording of the wife's telephone call without her knowledge is an obvious violation of her privacy.
- The Supreme Court has issued a notice in a Special Leave Petition (SLP) challenging the recent Punjab and Haryana High Court ruling.
Marriage is one of the most significant and sacred relationships that a man and a woman may have and it is a well-known truth that the right to privacy prevails in such cases because the marriage bond does not require proof of transparency in front of a third party. Furthermore, under the law, a married couple's interactions and personal life are examples of privileged communication. Section 122 of the Indian Evidence Act 1872 defines the term spousal privilege communication. The confidential talks or exchanges between two parties in a legally recognized relationship are referred to as privileged communication primarily because of the relationship between the two people. Hence, in such kinds of communication, the information cannot be leaked to any third party, not even in the courts.
A Division bench of the Hon’ble Supreme Court of India comprising of Justice Vineet Saran and Justice BV Nagarathna,in the matter of Vibhor Garg v. Neha, issued a notice in an SLP challenging a Punjab and Haryana High Court's ruling holding that recording a wife's telephonic call without her knowledge constitutes a violation of her privacy. According to the High Court, a discreetly recorded phone conversation will not be admitted in evidence before the Family Court.
Before interpreting the court's decision and the laws at issue in this case, the brief facts of the case are that the husband attempted to prove his wife's cruelty by producing a CD of recorded conversations between him and his wife that were recorded without her knowledge. In this instance, the Hon'ble Punjab and Haryana High Court refused to allow the husband to show the cruelty and ruled that the CDs in question could not be used as evidence. The purpose of this article is to examine the key facts of the case, as well as the legal provisions involved and previous judicial decisions on similar issues.
The Indian Evidence Act of 1872 and the Family Courts Act of 1984 are two crucial acts to comprehend in this case. First, the relevant parts of the Indian Evidence Act are section 122 and section 65B.
Section 122 of the Indian Evidence Act: No person who is or has been married shall be compelled to reveal any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
This provision protects all communication between spouses throughout the marriage and forbids it from being used as evidence in court. Although section 122 of the Indian Evidence Act appears to be fairly strict at first glance, there are several exceptions, such as the spouse is not protected if the spouse is accused of an offense against the other spouse. The Supreme Court has ruled earlier that section 122 will apply to all communications made during a marriage, and that the privilege will continue even after separation, divorce, or dissolution of the marriage, but only for communications made during the marriage's existence. Evidence is however admitted in court under certain cases. One such exception is that a spouse can be a witness of the conduct of the other spouseas section 122 does not bar the spouse being a witness to conduct, it only bars the communication between the married couple from the time they were married.
Section 65B of the Evidence Act: This section speaks about the electronic records that are admissible and hence under (1) says notwithstanding any other provision of this Act, any information contained in an electronic record printed on paper, stored, recorded, or copied in optical or magnetic media produced by a computer, referred to as the computer output shall be deemed to be a document if the conditions outlined in this section are met with the information and computer in question, shall be admissible in any proceeding without further prohibitions.
Following the provisions of the Evidence Act, the essential provisions of the Family Courts Act, 1984 are sections 14 and 20. Before referring to the provisions, it's important to understand that Section 14 of the Family Court Act is a "special law" concerning privileged communications between husband and wife, as opposed to the "general law" embodied by Section 122 of the Evidence Act. In addition, it is seen that Section 14 of the Family Court Act eclipses Section 122 of the Evidence Act when it comes to processes before the Family Courts.
Section 14 of the Family Court Act:According to this section, a Family Court may receive as evidence any report, statement, documents, information, or matter that, in its opinion, will assist it in dealing effectively with a dispute, regardless of whether the report, statement, documents, information, or matter is otherwise relevant or admissible under the Indian Evidence Act.
Section 20 of the Family Court Act:According to this section, it is said that the Family Court Act shall have effect notwithstanding anything inconsistent therewith contained in any other legislation currently in force or in any instrument having effect under any law other than this act.
BREACH OF FUNDAMENTAL RIGHT TO PRIVACY
The core question is whether a telephonic conversation recorded without the consent of another party is admissible as valid evidence in family court and whether section 14 of the Family Court Acts completely supersede the provisions of the Evidence Act or any other statute governing evidence procedure. Thus, several decisions might be used to support or refute the case. For a better understanding of the subject matter, a few landmark judgments are discussed below.
To begin with, in the case of Yusufalli Esmail Nagree vs. The State of Maharashtra(1967), a three-judge Supreme Court bench decided that a tape recording can be considered a statement if it has not been tampered with and that the fact that the tape recording was made without knowledge is not a bar to its acceptance.
In R. M. Malkani vs. State of Maharashtra (1972), the Supreme Court stated that tape recordings made by an external device without altering or disrupting telephone lines are acceptable in evidence. In this case, the Supreme Court outlined three requirements for a tape recording's admissibility: (a) relevance, (b) voice identification, and (c) confirmation of accuracy. It was therefore, decided that evidence obtained illegally is admissible.
Further reliance was also placed on, the Rajasthan High Court's decision in Vishal Kaushik Vs. Family Court and Others (2012), which found that conversation cassettes captured by the spouse without her knowledge cannot be admitted into evidence and used against her because they violate her fundamental right to privacy. And, in the case of Preeti Jain vs. Kunal Jain & Anr (2016), where a single judge of the Rajasthan High Court held that section 122 of the Evidence Act's 'privilege' in respect of husband-and-wife contact is superseded by section 14 of the Family Courts Act 1984.
Apart from the above-mentioned cases, another recent case was of Deepti Kapur vs Kunal Julka (2020),where the Delhi High Court has observed that the audio-video tape, as included in the CD, is allowed to be taken on record and evaluated for effectively adjudicating the dispute between the parties. An important point to note here is that the facts of this case are identical to those of the current case, in which the Supreme Court has at present issued a notice in a Special Leave Petition (SLP) challenging the Punjab and Haryana High Court's decision.
In the case of Deepti Kaur, it is important to note that the Supreme Court's Constitution Bench decision in Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.(2017), the wife relied upon and argued that privacy has been recognized by the Supreme Court as a fundamental right available to a person not only against the State but also against private individuals. As a result, the act of petitioner/husband planting an audio-video recorder without the respondent's knowledge or permission is an infringement of the respondent's right to privacy. The petitioner had no legal authority to install such a device.The legal ramifications of planting the aforementioned recording and making a recording therein would make the petitioner accountable for infringing on the respondent's fundamental right to privacy.
The court, on the other hand, believed that the Puttaswamy case is limited to a stage prior to a violation of the right to privacy. The Hon'ble Supreme Court of India has ruled that each individual has the right to privacy. This right has been designated as a fundamental right, with protections in place for both state and non-state entities. However, the ramifications of such a violation on the admissibility/inadmissibility of evidence gathered as a result of such a violation are not the topic of the judgement and have not been examined.Therefore, the court observed that the K.S.Puttaswamy case was silent on this issue.
Referringto the above-mentioned cases, it was argued that, while section 14 of the Family Courts Act 1984 otherwise empowers a Family Court to receive evidence if, in the Family Court's opinion, such evidence assists it in dealing effectively with a dispute, whether or not such evidence is otherwise relevant or admissible under the Indian Evidence Act 1872, this section does not allow inadmissible evidence "as per the Constitution" to be taken on record. On behalf of the wife, it was contended that because the conversation on the CD was taped in violation of the wife's basic right to privacy as recognized by the Constitution, it could not be accepted in evidence even under section 14 of the Family Courts Act.
The husband, on the other hand, argued that, while the Supreme Court has recognized privacy as a basic right, it is not absolute and is subject to exceptions. It was contended that the husband had the right to prove his divorce case based on the wife's cruelty and that in these circumstances, the wife's right to privacy must give way to the husband's right to bring evidence to prove his case, or else the husband would be denied the right to a fair trial guaranteed by Article 21 of the Constitution. Furthermore, on behalf of the husband, it is argued that section 14 of the Family Courts Act expressly empowers a Family Court to receive evidence if the court believes that such evidence will assist the court in dealing effectively with the dispute, regardless of whether the evidence is otherwise relevant or admissible under the Evidence Act.
To conclude, although the matter is pending before the Supreme Court at present, concerning the judicial decisions made earlier it is to be understood that a tape recording may be used as evidence if its accuracy could be proven, the voices could be accurately recognized, and the evidence was relevant and otherwise admissible. The point to note here is that the court did not establish an exhaustive set of standards for determining the admissibility of evidence, but it did state that such evidence should always be viewed with caution and evaluated in light of all the circumstances of a given case. Further, the right to privacy is another key aspect to consider, as evidenced by the famous Puttaswamy decision, where it was held that while the right to privacy is a fundamental right, it is not an absolute right and must be considered in the context of other rights and values.