The right to privacy, as guaranteed under Article 21 of the Constitution, includes the protection of conversations held in private, and evidence obtained through recording conversations without the knowledge of the other party is inadmissible.

ORDER :

1. The petitioner has challenged the order dated 21.10.2021 passed by the learned Family Court, Mahasamund, District Mahasamund, Chhattisgarh in Miscellaneous Criminal Case No.F-118/2019, whereby the application filed by respondent under Section 311 of the CrPC to summon the witness for further cross-examination has been allowed.

2. The application under Section 125 of the CrPC was moved by the petitioner for the grant of maintenance and the same is pending before the concerned Family Court since 2019. The petitioner led her evidence, thereafter, the case was fixed for examination of the witnesses and production of documents. Respondent/husband moved an application under Section 311 of the CrPC along with certificate under Section 65-B of the Indian Evidence Act for re-examination of the petitioner on the ground that certain conversation was recorded on the mobile phone and he wants to cross-examine the petitioner confronting with the conversation recorded on the mobile, and the learned trial Court vide order dated 21.10.2021 allowed the said application.

3. Learned counsel for the petitioner would submit that the learned Court below has committed an error of law by allowing the application as it infringes the right of privacy of the petitioner and without her knowledge conversation was recorded by respondent and the same cannot be used against her. He has placed reliance on the judgments passed by the Hon’ble Supreme Court in the matters of R. M. Malkani v. State of Maharashtra reported in AIR 1973 SC 157 and Mr. ‘X’ v. Hospital ‘Z’ reported in AIR 1999 SC 495, and the judgment passed by the High Court of Madhya Pradesh in the matter of Anurima alias Abha Mehta v. Sunil Mehta reported in AIR 2016 Madhya Pradesh 112.

4. On the other hand, learned counsel for the respondent would submit that respondent/husband wanted to produce certain evidence to prove some allegations against the petitioner. He has the right to confront the petitioner with the conversation which was recorded on his mobile phone. He would further submit that learned Family Court has rightly allowed the application.

5. I have heard learned counsel for the parties and perused the documents.

6. In the proceeding under Section 125 of the CrPC after examination of the petitioner, an application moved by the respondent under Section 311 of the CrPC for re-examination of the petitioner/wife was allowed by the learned Family Court on the ground that certain conversation was recorded by the respondent on his mobile and he wants to prove the same against the petitioner, therefore, the piece of the evidence is necessary for just decision of the case.

7. The Hon’ble Supreme Court in the matter of R.M. Malkani (supra) in para-30 held as under:-

“30. There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellants conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation."

8. While dealing with a similar issue it was held in the matter of People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 301 in para 18 as under:-

"18. The right to privacy-by itself-has not been identified under the Constitution. As a