Back
IN THE HIGH COURT OF DELHI AT NEW DELHI
Anup Jairam Bhambhani, J.
Deepti Kapur - Appellant
Versus
Kunal Julka - Respondent
Civil Miscellaneous (M) No. 40 of 2019; Civil Miscellaneous Application No. 1226 of 2019
Decided On : 30-06-2020
The court held that the Family Court did not err in allowing the husband to bring on record the evidence comprised in the CD, while directing that the contents of the CD be examined by the Forensic Science Laboratory (FSL) to assess the genuineness of the recording. The court held that although privacy has been recognised by the Supreme Court as a fundamental right, this right is not absolute but is subject to exceptions. The court also held that section 14 of the Family Courts Act 1984 (''Family Courts Act'', for short) specifically empowers a Family Court to receive evidence, if in its opinion such evidence will assist the court to deal effectively with the dispute, regardless of whether the same is otherwise relevant or admissible under the Evidence Act.
Fact of the Case:
The petitioner/wife is the respondent in a matrimonial dispute which is pending before the Family Court by way of a divorce petition bearing HMA No. 609/2012, the relevant details of which are referred to hereinafter. The respondent/husband is seeking dissolution of their marriage on the ground of cruelty available under section 13(1)(ia) of the Hindu Marriage Act, 1955. In the divorce proceedings, the husband filed a Compact Disc (CD) purporting to contain an audio-video recording of the wife supposedly speaking with her lady friend, by name Sugandha, on phone and talking about the husband and his family in a manner, which the husband claims was derogatory, defamatory and constituted cruelty to him. In the written statement filed by the wife in the divorce proceedings, she opposed the taking on record of the CD and the purported transcript of conversation contained therein. The wife opposed the CD being brought on record on the ground, firstly, that the contents of the CD were tampered with and were therefore not authentic ; and secondly, that the contents of the CD were not admissible in evidence since they were a recording of a ''private'' conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.
Finding of the Court:
The court held that the Family Court did not err in allowing the husband to bring on record the evidence comprised in the CD, while directing that the contents of the CD be examined by the Forensic Science Laboratory (FSL) to assess the genuineness of the recording. The court held that although privacy has been recognised by the Supreme Court as a fundamental right, this right is not absolute but is subject to exceptions. The court also held that section 14 of the Family Courts Act 1984 (''Family Courts Act'', for short) specifically empowers a Family Court to receive evidence, if in its opinion such evidence will assist the court to deal effectively with the dispute, regardless of whether the same is otherwise relevant or admissible under the Evidence Act.
Issues: Whether the Family Court erred in allowing the husband to bring on record the evidence comprised in the CD, while directing that the contents of the CD be examined by the Forensic Science Laboratory (FSL) to assess the genuineness of the recording.
Ratio Decidendi: The court held that the Family Court did not err in allowing the husband to bring on record the evidence comprised in the CD, while directing that the contents of the CD be examined by the Forensic Science Laboratory (FSL) to assess the genuineness of the recording. The court held that although privacy has been recognised by the Supreme Court as a fundamental right, this right is not absolute but is subject to exceptions. The court also held that section 14 of the Family Courts Act 1984 (''Family Courts Act'', for short) specifically empowers a Family Court to receive evidence, if in its opinion such evidence will assist the court to deal effectively with the dispute, regardless of whether the same is otherwise relevant or admissible under the Evidence Act.
Final Decision: The court upheld the impugned order and dismissed the petition.
Key Points: - The Family Court allowed recording on record and directed FSL examen by the court; Section 14 empowers receiving evidence irrespective of traditional admissibility if it assists the court (!) (!) (!) - Privacy rights are not absolute; they may yield to fair trial considerations; Section 14 overrides normal Evidence Act admissibility for family disputes (!) (!) (!) (!) (!) - The decision emphasizes that admissibility is a threshold/receiving test under Section 14, not a determination of proving a fact; weight is for final adjudication (!) (!) - The judgment cites Navjot Sandhu and Pooran Mal to support that relevancy is the general test, but Section 14 provides a broader reception, with caveats about misuse and need for caution regarding tampering (!) (!) (!) (!) (!) (!) - The court warns against illegal collection of evidence but recognizes the Family Court may receive such evidence to assist in dispute resolution; risks of tampering noted ( tape recordings require stringent authenticity checks) (!) (!) (!)
JUDGMENT
Anup Jairam Bhambhani, J. - This petition under Article 227 of the Constitution of India impugns order dated 24.12.2018 made by the learned Principal Judge (South), Family Court, Saket, Delhi in HMA No.609/2012 titled Kunal Julka vs. Deepti Kapur.
2. The issue at hand arises from a matrimonial dispute which is pending before the Family Court by way of a divorce petition bearing HMA No. 609/2012, the relevant details of which are referred to hereinafter.
3. The petitioner/wife is the respondent in the aforesaid divorce petition which was filed on 26.09.2012 by the respondent/husband seeking dissolution of their marriage on the ground of cruelty available under section 13(1)(ia) of the Hindu Marriage Act, 1955. In the divorce proceedings, the husband filed a Compact Disc (CD) purporting to contain an audio-video recording of the wife supposedly speaking with her lady friend, by name Sugandha, on phone and talking about the husband and his family in a manner, which the husband claims was derogatory, defamatory and constituted cruelty to him. In the written statement filed by the wife in the divorce proceedings, she opposed the taking on record of the CD and the purported transcript of conversation contained therein. The wife opposed the CD being brought on record on the ground, firstly, that the contents of the CD were tampered with and were therefore not authentic ; and secondly, that the contents of the CD were not admissible in evidence since they were a recording of a ''private'' conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.
4. In response to the wife''s objections, the husband moved an application before the Family Court, in which he in effect sought appointment of an expert to prove the genuineness of the CD with the purpose of bringing the CD on record. Agreeing with the husband''s contentions, by way of impugned order dated 24.12.2018, the Family Court allowed the husband to bring on record the evidence comprised in the CD, while directing that the contents of the CD be examined by the Forensic Science Laboratory (FSL) to assess the genuineness of the recording. By way of the impugned order, the Family Court has directed the FSL to render its opinion on the following aspects :
"The FSL shall report :(l) (sic) Whether the contents of CD and the original recording in the recording device are at variance? (2) Whether the original recording has been tempered (sic) with? (3)Whether the transcript relied upon by the petitioner is correct, as per the original recording?"
5. While the prayer made in the application on which the Family Court has made the impugned order is somewhat ambiguous, the essential question raised in the present proceeding is as regards the admissibility of the contents of the CD, since according to the wife, the conversation comprised in the CD has been recorded in breach of her fundamental right to privacy; and is therefore inadmissible in evidence.
Petitioner''s submissions :
6. The wife''s objection arises from the conceded position that the audio-video recording on the CD was made by means of a CCTV camera installed by the husband in the bedroom of the parties ; and that is how the conversation between the wife and her friend came to be recorded. The wife accordingly contends that since the evidence comprised in the CD was collected in breach of the wife''s fundamental right to privacy, the same is not admissible in a court of law. Relying on a Constitution Bench judgment of the Supreme Court in Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., (2017) 10 SCC 1 , the wife has urged that privacy has (now) been recognised by the Supreme Court as a fundamental right, available to a person not only against the State but also against private individuals. It is argued that a person is entitled to criticise someone and not share the criticism
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
