Secretly Recorded Telephonic Talk Between Wife & Friend In Breach Of Privacy Right Admissible In Family Court, Says Delhi Court

Court says Privacy judgment silent on the admissibility of evidence recorded n breach of privacy

Is the evidence in the form of an audio-video recording of a private telephonic conversation collected in violation of a person’s fundamental right to privacy (after the Supreme Court’s Privacy judgment) by planting a recorder in the bedroom of that person admissible in a Family Court?

A Delhi court has answered the question in affirmative.

Principal Judge (South), Family Court, Narottam Kaushal held that a Family Court can receive any report, statement, document, information which, in its opinion, will assist it in effectually dealing with a dispute between the parties without going into the question of admissibility of the evidence collected by violating a person’s right to privacy.

 “This Court is of the opinion that the conversation between the respondent wife and her friend wherein she has allegedly spoken about the petitioner husband and his family and the status of the matrimonial life would certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant. Therefore, in view of section 14 of the Family Courts Act, the evidence cannot be thrown out on the ground that the same is inadmissible,” he held.

The judge said so while deciding a plea of a man (the petitioner), who has been seeking a divorce from his wife (the respondent) on grounds of cruelty.

To prove cruelty, the petitioner had relied upon an audio-video recording wherein the respondent is purportedly speaking to a friend on phone and is talking about petitioner and his family and the status of matrimonial life, which conversation the petitioner claims to be defamatory and constituting cruelty to him.

He had moved the plea for the appointment of an expert to prove the contents of the CD containing the said recorded telephonic conversation to rule out any possibility of tampering while the estranged wife objected to it being admitted as evidence.

During the arguments stretching over three weeks, petitioner’s counsel advocate Kadambari Puri submitted that the contents of the CD is the prime evidence which the petitioner wants to rely upon and since the respondent is disputing its contents, the court should appoint an expert to report about the correctness of the contents of the CD.

The counsel for the respondent, however, opposed the application saying the CD as an evidence is hit by Articles 19 and 21 of the Constitution as the conversation was recorded by planting an audio-video recorder in the bedroom of the respondent for recording her conversation with her friend which was made in private, thereby violating her right to privacy.

Relying on the nine-judge bench Supreme Court’s verdict in KS Puttuswamy & Anr. vs. Union of India (better known as the Privacy judgment), the respondent said a communication made between her and her friend with the belief that the same is being made in private cannot be permitted to be brought on record. He argued that the petitioner’s act of secretly recording the conversation is in violation of respondent’s fundamental right to privacy and therefore, such recording is illegal and not admissible in evidence.

She further argued that Section 14 of the Family Courts Act permits evidence which is inadmissible under the Indian Evidence Act but does not allow evidence which is inadmissible as per the Constitution of India.

Advocate Puri strongly rebutted the argument as she submitted that right to privacy is subject to just exceptions and when juxtaposed with the right of the petitioner to establish cruelty in conduct of the respondent, respondent’s right to privacy shall have to give way to petitioner’s right to prove his case.

She referred to the Supreme Court case titled Sharda vs. Dharampal wherein it was held that matrimonial court has the power to order a person to undergo a medical test and such an order would not be in violation of personal liberty.

Privacy judgment and the admissibility of evidence in breach of privacy

“There can be no dispute to the law laid down in KS Puttuswamy’s case. The law as enunciated by a full bench of the Supreme Court is binding and sacrosanct. However, this court is of the opinion that the scope of K S Puttuswamy’s case is restricted to a stage prior to the violation of right to privacy. The Hon’ble Supreme Court has held that a person has a right to maintain his privacy. This right has been conferred the status of a fundamental right. The protection has been enunciated to be available against the state, as well as non-state entities.

However, the consequences of such violation, on the admissibility/ inadmissibility of the evidence collected by such violation, have not been discussed in the judgment,” said Judge Narottam Kaushal.

He went on to say, “Thus, in the present case, the act of petitioner husband of planting an audio-video recorder without the knowledge information of respondent certainly amounts to invasion of respondent’s right to privacy. Petitioner had no right to plant such a device. Having planted the said recorder and made a recording therein, legally permissible consequences would follow in appropriate proceedings. Petitioner can be held liable for violating the respondent’s fundamental right to privacy. The question that needs to be answered by this court in the present application is from the next stage onwards that is whether the evidence so collected in violation of respondent’s fundamental right to privacy is admissible or not?”

“This Court is of the opinion that KS Puttuswamy case is silent on this question”.

The court said that in X versus Hospital Z’s case it was held by the Supreme Court that dissemination of information about a person being infected with HIV is not hit by right of privacy as the prospective spouse has a right to protect herself from being infected.

The court also referred to Sharda versus Dharampal case where it was held that Family Court’s power to direct a person to undergo medical test is not violative of Article 21 of the Constitution of India.

The judge said that the judgment relied upon by the counsel based on Articles 19 and 21 of the Constitution of India do not answer the question which this court is required to answer (about the admissibility of evidence collected in breach of right to privacy).

 Section 14 Family Courts Act has the answer

Judge Kaushal said it is Section 14 of the Family Courts Act which squarely and clearly answers the question posed.

Sagarika Devatha’s case elucidates the object of Section 14 of the family courts Act. The legislative wisdom to keep the procedure in legal aspect of a family court to be simple and non-complicated have been held to be the object of section 14 which says that a family court may receive as evidence any report, statement, document, information on 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.

“It is, therefore, evident that the family court is within its right to receive any report, statement, document, information which in its opinion will assist it in effectually dealing with a dispute between the parties whether such evidence is relevant or admissible or not. Therefore, the question of admissibility of the evidence collected by violating the respondent's right to privacy would not be gone in to by a family court and the evidence shall be taken on record if the court is of the opinion that such evidence will assist it in dealing with the dispute effectively,” said the judge.

“This Court is of the opinion that the conversation between the respondent and her friend wherein she has allegedly spoken about the petitioner and his family and the status of the matrimonial life would certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant. Therefore, in view of section 14 of the Family Courts Act, the evidence cannot be thrown out on the ground that the same is inadmissible,” he held.

The judge was not impressed with the argument of respondent’s counsel that the admissibility mentioned in Section 14 of the Family Courts Act pertains to admissibility under the Indian Evidence Act and not under the Constitution of India.

“The question of admissibility has been defined only under the Indian Evidence Act and there is no way that appreciation of admissibility of evidence can be carried out under the Constitution of India. Therefore, Court is of the opinion that the audio-video recording as contained in the CD is certainly permissible to be taken on record and considered for effectively adjudicating the dispute between the parties,” he said.

The court also referred to the Supreme Court decisions in State vs Navjot Sandhu to say that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act.

“Thus, the consistent view of the Hon’ble Supreme Court of India has been that an evidence which is relevant, though, illegally collected shall not be rejected on the grounds of admissibility,” said the court.

“Thus, holding that the recorded conversation contained in CD is admissible the application is allowed,” concluded the court.

It then directed that the CD and audio-video recorder be sent to FSL Rohini for evaluating the genuineness of the recordings contained therein and directed SHO Police Station Vasant Vihar to collect CD as well as original recording device from the petitioner and send it to the FSL Rohini by a special messenger.

The court ordered that the FSL shall report in one month whether the contents of the CD and the original recording in the recording device are at variance; whether the original recording has been tampered with and; whether the transcript relied upon by the petitioner is correct as per the original recording.