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IN THE HIGH COURT OF DELHI AT NEW DELHI
Swarana Kanta Sharma, J.
X & Y – Appellant
Versus
Z – Respondent
Cr.REV.P.480 of 2023, Cr.M.A.11424 of 2023 & Cr.M.A.
Decided On : 08-05-2023
DV Act - Preservation and Production of Evidence - Section 28(2) of the Protection of Women from Domestic Violence Act, 2005 - The court directed the preservation of hotel records and phone records of the respondent for the past 3 years, clarifying that the records will not be handed over to any of the parties but will be preserved by the concerned persons/authorities and will be produced before the concerned Courts only in case they are directed to do so at the appropriate stage of trial.
Fact of the Case:
The petitioner sought preservation and production of hotel records and phone records of the respondent for the past 3 years in the context of a domestic violence case and a divorce petition on the grounds of adultery.
Finding of the Court:
The court directed the preservation of the requested records, clarifying that they will not be handed over to any of the parties but will be produced before the concerned Courts only if directed to do so at the appropriate stage of trial.
Issues: The main issue was the preservation and production of crucial evidence in a domestic violence and divorce case.
Ratio Decidendi: The court relied on Section 28(2) of the Protection of Women from Domestic Violence Act, 2005 and relevant case law to support the preservation and production of evidence in the context of domestic violence and matrimonial cases.
Final Decision: The court directed the preservation of the requested records, emphasizing that the order does not confer any right to the parties to produce the records in court and that the concerned Court will decide the application for production of such documents on its merits as per law.
JUDGMENT
Swarana Kanta Sharma, J.
1. The instant petition under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioners seeking setting aside of order dated 17.02.2023 passed by learned Additional Sessions Judge, South District, Saket Courts, New Delhi in CA No. 24 of 2023 titled "X & Y v. Z" (name withheld) and order dated 18.11.2022 passed by learned Magistrate in CC No. 39262 of 2019.
2. Vide an urgent application seeking ex-parte production and preservation of the documents, the petitioner no. 1 has sought the production and preservation of following records:
"a. Guest Register maintained by Post Card Hotel-Cuelim in respect of the Hotel stay of `Z'(name withheld) and any other person along with him along with all annexures/documents required from the guests including and not limited to Copy of ID proofs, Covid-19 vaccination certificate, etc. of the guests retained by the Post Card Hotel- both physical as well as electronic documents/data.
b. Invoices issued by Post Card Hotel in respect of the hotel stay of `Z' (name withheld) and other guests with him including of the room charge and other ancillary charges such as room service, activities, excursions, dining charges at the hotel restaurant and any other additional services availed during the stay-both physical documents as well as electronic documents/data.
c. Payment details of the accommodation and mode of payment for the same-both physical documents as well as electronic documents/data.
d. Emails exchanged between the Post Card Hotel and `Z' (name withheld) and between the Post Card Hotel and another guest in respect of the booking that includes `Z' (name withheld)- both physical documents as well as electronic documents/data.
e. CCTV footage of the check-in/check-out area, if available.
f. Phone records along with CDR of the Respondent (mobile phone number +91 98******31) (number withheld in this order) for the past 3 years, i.e., for the period between 27.10.2019 to 27.10.2022, call records of the with tower proximity..."
3. Brief facts leading to filing of the present petition and the urgent application seeking above-mentioned reliefs are that the petitioner no.1 and respondent were married on 15.04.2012 as per Hindu rites and customs. During the course of marriage, disputes arose to the extent that allegations were levelled by the petitioner against the respondent and it is alleged that the respondent abandoned the marriage of the petitioner in May, 2017. However, since parties could not reconcile their differences, the petitioner no.1 had filed a complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 (`DV Act') on 21.11.2019 against the respondent seeking protection orders under Sections 18, 19, 20, 21 and 22 of the DV Act wherein pleadings are complete and case is listed for arguments for grant of interim relief sought by the petitioner no.1. Petitioner no.1 also filed a petition seeking divorce on the grounds of cruelty and depression. It is stated that in July, 2021, petitioner no.1 had discovered an old phone and chats exchanged between the respondent and one Ms. `X' relating back to the period when the parties were newly wedded. Thereafter, she filed another petitioner for divorce on ground of adultery under Section 13(1)(1) of Hindu Marriage Act in December, 2021 which is pending before the learned Family Court, New Delhi. It is stated that the petitioner discovered this extra marital affair after ten years of marriage, and she filed evidence of respondent's lack of marital fidelity alongwith additional affidavit dated 22.12.2021 before the learned Magistrate as it constituted domestic violence. It is stated that the petitioner no.1 had come to know that the respondent had stayed with another women at Postcard Hotel-Ceulim, T.B. Cunha Road, House No.64, Cansaulim, Goa around 15.08.2020 to 20.08.2020. On 10.11.2022, she moved an application seeking call detail records of the respon
The main legal point established in the judgment is the court's authority to devise its own procedure for disposal of an application under Section 28(2) of the Protection of Women from Domestic Viole....
Court affirmed the necessity of impleading an alleged paramour in divorce proceedings for fair adjudication, emphasizing evidentiary disclosures must balance privacy rights with the right to prove ad....
The right to privacy in matrimonial cases is not absolute and must yield to the right to present relevant evidence for a fair trial.
The right to privacy in matrimonial disputes is not absolute and must balance with the right to fair trial, allowing relevant evidence to be admitted even if obtained through means that raise questio....
The court emphasized that allegations of adultery must be substantiated with credible evidence, and unauthorized recording of intimate moments violates the right to privacy.
Electronic records cannot be admitted into evidence unless the mandatory requirements of Section 65-B of the Evidence Act are satisfied, including obtaining a certificate in terms of Section 65-B(4) ....
Procedural rules serve to facilitate justice; allows for late admission of evidence if no prejudice is caused to the opposing party.
Notice to produce document—Whether there exists such document or not cannot be adjudicated at the time of passing orders under Section 66 of Indian Evidence Act.
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