Secretly Recording The Conversation Of Wife Is Infringement Of Right To Privacy Provided By Article 21 Of The Constitution And The Same Is Not Admissible Evidence In The Proceedings Of Divorce U/S 13 Of Hindu Marriages Act: Neha Vs Vibhor Garg

DATE OF JUDGEMENT:
12th November 2021

JUDGES:
Justice Lisa Gill

PARTIES:
Appellant: Neha
Respondent: Vibhor Garg

SUBJECT

In the following judgement, the honourable High Court of Punjab and Haryana declared that, surreptitiously recording the conversation of spouse is infringement of right to privacy provided by Article 21 of the Constitution of India and the same is not an admissible evidence in the proceedings of divorce under Section 13 of Hindu Marriages Act 1955.

OVERVIEW

1. An application was filed by the petitioner(wife) in the High Court of Punjab and Haryana seeking cancellation of impugned order of Family Court, Bathinda, which observed that the respondent(husband) is allowed to prove the CD pertaining to the conversations between him and his wife(petitioner) as a part of pleading, in a case filed by the husband in the Family Court under Section 13 of Hindu Marriages Act, 1955 seeking divorce on various grounds.

2. Another application (CR No. 1616 of 2020) was filed in the High Court of Punjab and Haryana by the husband seeking direction to the Family Court for expedition of proceedings in the same matter. The Court clubbed both applications together for the purpose of order.

3. Before adverting to the merits of the argument of the parties, the court went into summarizing the facts of the case:

a) A petition under Section 13 of the Hindu Marriage Act, 1955 was filed by the husband (respondent) seeking divorce on various grounds.

b. Marriage between the parties was solemnized on 20th Feb 2009. The petition seeking divorce filed in the year 2017 and later an amended petition was filed on 3rd March 2018.

c. When the matter was listed for cross-examination, an application was moved by the husband on 9th July 2019 seeking permission to submit his supplementary affidavit by way of examination-in-chief along with CD and transcriptions of conversations so recorded in the memory cards/chips of the respective mobile phones. The same application was allowed by the Family Court stating that ‘strict principles of evidence are not applicable to the proceedings before the Family Court keeping in view Section 14 and 20 of the Family Courts Act, 1984’. Aggrieved by this, the wife filed the instance review petition in the High Court of Punjab and Haryana.

4. The counsel for the wife(petitioner) mainly argued that the evidence sought to be led by the husband is completely beyond pleadings, therefore, absolutely impermissible.

5. It was further contended that the said CDs are a ‘clear cut infringement and downright invasion of the wife’s privacy thus a violation of Article 21’ of the Indian Constitution, as the conversations have been recorded without knowledge or consent of the petitioner. It was also contended that the Family Court completely ignored Section 65 of the Indian Evidence Act, 1872, because if recording has been done through a mobile phone, CD’s of the recording and transcripts thereof in any case, cannot be accepted as evidence thereof. A non-compliance of Section 65-B of the Evidence Act was also alleged by the counsel for petitioner.

6. The counsel for the petitioner further stated that, the husband(respondent) was aware of the recordings allegedly held years before filing the petition for seeking divorce and the same could have been submitted at any phase of trial instead of filing a supplementary affidavit two years after the institution of the case. The truthfulness of the recordings was also called in question by the counsel for petitioner.

7. The counsel for the respondent refuting the arguments of petitioner, referred to section 122 of Evidence Act and stated that, there is ‘no question of infringement of right to privacy.’ It was also added that family court is not bound by strict rules of evidence in accordance with Section 14 and 20 Family Courts Act.

8. Senior counsel for the respondent, further argued that the application for placing on record the supplementary affidavit along with CD was filed ‘well before’ cross-examination of the husband. Therefore, no prejudice was caused to the petitioner. Consequently, the counsel for respondent prayed that the impugned order of family court must be upheld.

IMPORTANT PROVISIONS

Hindu Marriage Act, 1955

• Section 13- Divorce.

Family Court Act, 1955

• Section 14- A: Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectively with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872
• Section 20- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

Indian Evidence Act 1872

• Section 65- Cases in which secondary evidence relating to documents may be given.
• Section 65(b)- When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.

ISSUES

1. Whether a telephonic conversation recorded without consent of another party is admissible as valid evidence in family court?
2. Whether section 14 of Family Court acts absolutely override provisions of Evidence Act or any other statute delineating procedure of evidence?

JUDGEMENT

1. The court accepted the respondent’s argument about how the provisions of the Family Court Act dilute the Indian Evidence Act. The court stated ‘the technicalities and procedures otherwise followed by the Civil and Criminal Courts may not be applicable to proceedings before the Family Court.’
2. However, the court categorically stated that the CD of phone recordings clearly violated the fundamental right of privacy of the petitioner guaranteed by the constitution. The court relied on the excerpt from the case of People’s Union for Civil Liberties Vs. Union of India which stated- “Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
3. The court also took notice of material circumstances of the case and explained how the context of phone recordings can’t be known as they were recorded surreptitiously by the respondent. The court relied on judgement in the case of Deepinder Singh Mann Vs. Ranjit Kaur which explained- “It would be a rather dangerous trend to allow people to be fixed or exposed on Audio CDs obtained by malfeasance, in its object of collecting evidence and the secretive means adopted to achieve a lawful or an unlawful end”. The court also mentioned how couples speak many things in the course of married life, unaware that “every word would be weighed in a court of law”. So, it is not possible to figure out the context of the recordings.
4. Moreover, the court relied on judgement in the case of Dr. Tripat Deep Singh Vs. Dr (Smt.) Paviter Kaur, which held that conversations between husband and wife in daily routine cannot be made the basis of or considered for deciding a petition under Section 13 of the Act.
5. The court relied on multiple pronouncements, especially the case of Smt. Rayala M. Bhuvaneswari Vs. Napaphander Rayala, to deduce that the act of recording conversation without the wife is illegal and it amounts to a clear infringement right to privacy under Article 21 of Constitution.
6. The court concluded 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.’
7. Accordingly, the impugned order allowing admission of CDs as valid evidence, which was passed by the learned Family Court, Bathinda, was set aside. The application filed by the respondent-husband was also dismissed.

CONCLUSION

The court in the present case has once again reiterated the supremacy of Right to Privacy protected by the constitution of India under Article 21 and how it overrides distinct provisions of law in certain circumstances.

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