Family Conversations Secretly Recorded By Wife To Prove Domestic Violence And Cruelty Admissible In Evidence: Gujarat High Court

The Gujarat High Court has recently ruled that family conversations secretly recorded by a wife to substantiate her claims of domestic violence and cruelty against the husband, his family are admissible as evidence, adding that in "family matters" all such documents become admissible regardless of their relevance or if they can be proved as per the Indian Evidence Act.

In doing so, the high court emphasized the relevance of such recordings, even if made without the husband's and in-laws' knowledge. 

A single judge bench of Justice Gita Gopi, in its July 16 judgment observed,

“The identification of the voice would not be question, since it is the wife who is identifying the voice of husband and in-laws with whom she had stayed together during the matrimonial life. Though recording would be without the knowledge of husband and family members but the conversation between the persons recorded and placed on record by way of CD is relevant to the matter in issue of domestic violence. The wife by producing the hash value and Section 65B certificate as per the Indian Evidence Act has prima facie proved that there is no erasing or tampering in the recorded conversation.”

For context hash value refers to a unique fingerprint for a specific digital evidence. 

Tape recorded conversations are admissible 

Referring to the Supreme Court's decisions in Sri Rama Reddy etc. v. Shri V.V. Giri (1970), and Yusufali Esmail Nagree v. The State of Maharashtra (1967), Justice Gopi observed that tape-recorded conversations are admissible provided the "conversation is relevant to the matters in issue", the voice is "identified", and the accuracy of the tape-recorded conversation is "proven by eliminating the possibility of erasure".

The High Court noted that the petitioner, as a wife in the matter, produced a CD along with a transcript and a certificate under Section 65B of the Indian Evidence Act identifying the voices in the CD as hers, her husband's, and other family members.

Conversation between family relevant in domestic violence case

Calling the conversation between the family members a "relevant matter", Justice Gopi said, "The petitioner as a wife wants to prove the cruelty which she faced in four walls of the matrimonial house. The identification of the voice would no be a question as recorded in the CD when the petitioner as a wife declares it to be the voice of the husband and other family members with whom she had been living alone from the date of her marriage. The accuracy of CD has been proved by placing on record the hash value," the high court said.

The observation came in a woman's revision application challenging orders of a magisterial and sessions court which had rejected her plea for taking voice samples of her husband for "necessary technical comparison/examination through the forensic expert" in order to substantiate claims of cruelty under the Domestic Violence Act. The woman had recorded conversations with her husband and in-laws, presenting a CD as evidence of the cruelty she allegedly endured.

Rejecting her plea, the magistrate court ruled that in the absence of any "express provision" under the law in force, "empowering the courts to order any person to undergo voice spectrograph test" such a direction cannot be passed. It also held that the order also cannot be passed since there was "no investigation of crime". The woman thereafter approached the sessions court which rejected her plea and made the magistrate court's order "absolute". She then approached the high court.

In view of the Supreme Court's judgments in Ziyauddin Burhannuddin Bukhari v. Brijmohan Ramdass Mehra & Ors., (1975) and R.M. Malkani v. State of Maharashtra (1972) the high court said that the "CD produced on record would be admissible evidence".

Object of DV Act to be kept in mind by Magistrates dealing with such cases

Justice Gopi went on to highlight the importance of viewing proceedings under the Domestic Violence Act from a perspective that emphasizes the protection of women, including wives, as aggrieved individuals, and addresses respondents such as husbands and their family members. The Court emphasized that the proceedings aim to safeguard the rights of women who are victims of violence and to prevent the recurrence of domestic violence in society and to provide speedy remedy in civil laws. 

Calling upon the Magistrates dealing with DV cases to keep in mind the object of the Act, the high court said, "Thus, in view of that object, the Magistrates are given the authority under Section 28(2) to lay down its own procedure for the disposal of the application under Section 12 or sub-section (2) of Section 23. Every proceedings should be so conducted which would be inclusive in nature. The legislature has also intended to assist the Magistrate in discharge of the function of the Act to take the services of the protection officers". 

It further said that it is the protection officers' duty to assist the concerned Magistrate and to make a domestic incident report on receipt of the complaint of domestic violence.

The High Court further said that the application under S. 12 DV Act can be moved either by the aggrieved person or the protection officer or any such person on behalf of the aggrieved seeking one or more relief under the DV Act. As per this provision the reliefs sought for can be–an order for payment of compensation/damages without prejudice to the right of such person to move a suit for compensation or damages for the injuries caused by the acts of domestic violence. 

The High Court further emphasized that the provision seeks to ensure that there is "no further perpetration of the domestic violence in the society". 

Justice Gopi further explained that with the mandatory involvement of protection officers, the services of councilors, and assistance from welfare experts, the Magistrate is well-equipped to handle proceedings under the DV Act. Section 28(2) grants the Magistrate broad powers to adopt their own procedures for disposing of applications under Section 12.

Rejection of woman's plea not as per DV Act's objective

Justice Gopi thereafter opined that the rejection of the woman's pleas by the lower courts was not in conformity with the DV Act's objective.

The High Court then remarked, “the learned Magistrate dealing with the trial under the DV Act has to keep in mind that the domestic violence complaint by the women is in a household where she is surrounded by the family members of the husband. She would not have any friend in the matrimonial family. The law would only be her friend supporting her in the family. Latest development of technology would assist her and help her to bring her case of domestic violence suffered by her in the shared household. Such evidence on record should be accepted by the learned Magistrate without asking for the extraordinary proof of such evidence. In family matters, the Courts have all the authority to take into the trial all the reports, statements, documents, information on matters which would assist the Court in effective decision of the dispute whether such documents are relevant or admissible under the Indian Evidence Act". 

In the present case, the Court noted that the petitioner had attempted to assist the court by filing a plea to obtain further evidence for the CD she had submitted, and the Forensic Science Laboratory's (FSL) report would have assisted the court. 

"In the family matters, all such documents would become admissible irrespective that those documents become relevant or not or could not be proved in accordance to the Indian Evidence Act...The CD itself becomes an admissible evidence in view of the decision in the case of R.M. Malkani (supra) and Ziyauddin Burhannuddin Bukhari, more so being a matrimonial matter, the parties need not prove the documents or the statement or any other report in accordance to the Indian Evidence Act, without even falling for the relevancy or the admissibility of all those documents, which become part of the trial, it gets admitted as evidence," Justice Gopi observed. 

The High Court further said that in the present matter, when the wife had already produced the CD and transcript of the CD on record–identifying the voice of the husband and other family members, then she "need not prove more than that on record". However, the high court noted, to assist the court and to prove the reliability of the CD, the woman had placed on record the hash value and certificate under Section 65B. 

The high court thereafter set aside the magisterial and sessions court orders and allowed the woman's plea. 

Case Title - JIL W/O Priyank Manubhai Choksi Versus State Of Gujarat & Anr.

LL Citation: 2024 LiveLaw (Guj) 103

Click Here To Download The Judgment