IMPORTANT POINT
The court established that electronic evidence, including voice recordings, is admissible in domestic violence cases, and courts should utilize technological advancements to ensure justice.

JUDGMENT :

1. The revisionist is the petitioner in Criminal Misc. Application no.12/2016 before the learned Additional Chief Metropolitan Magistrate, Court no.9, Ahmedabad. She had moved an application Exh.46 on 2.7.2022 making a prayer to preliminary decide about the voice in the conversation recorded in the CD which has been produced along with Exh.37 affidavit to be sent to the FSL, State of Gujarat, Gandhinagar and further urged to take a voice sample of both the parties for necessary technical comparison/examination through the forensic expert.

2. Criminal Misc. Application no.12/2016 is before the Court of learned Metropolitan Magistrate under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”). On hearing the parties, the learned Magistrate passed the order on 20.10.2022 which is reproduced hereunder:-

“Read the application and heard the Ld. Advocate for the parties and perused the record put before me. The petitioner/wife has preferred this application and prayed for voice. Spectrograph test of the opponent/husband to prove the voice of husband in the C.D. submitted at mark 38/1. The husband side has strongly oppose the application arguing that it is infringement of his fundamental right guaranteed Under Article 20(3)

Heard the Ld. advocate of both the side before passing any order it is important to discuss the legal proposition pertaining to this application To the best of my knowledge there is no express provision under the law in force in India empowering the courts to order any person to undergo voice spectrograph test, the said order cannot be passed in present proceeding. However the Hon'ble Supreme Court in Ritesh Sinha V/s. State of U P reported in AIR 2019 SC 3592 held that the Magistrate must be conceded the power to order a person to give voice sample for the purpose of investigation of a crime. So in the present proceedings, since there is no question of investigation of crime, no such kind of order can be passed in the absence of any provision of law empowering the court to do so considering above discussion petitioner's present application is rejected without any cost.”

3. Aggrieved by the order, the wife as the petitioner was before the learned Appellate Court in Criminal Appeal no.197/23. The learned Appellate Court rejected the appeal and the order passed below Exh.46 dated 20.10.2022 by the learned Additional Chief Judicial Magistrate, Court no.9, Ahmedabad was made absolute. Aggrieved by both the orders, the petitioner is before this Court.

4. Learned advocate Mr. Narendra K. Amin for the petitioner raised a contention that in a proceeding between husband and wife under the DV Act, the cruelty meted out by the wife in the matrimonial home are required to be proved during the trial proceedings. Mr. Amin submitted that in the matrimonial home, there would not be any witness who would be supporting the wife, since all the family members are with the husband, in most of the cases, such cruelty, harassment and torture would not get proved in absence of corroborative evidence. Advocate Mr. Amin submitted that in the age of technology when such act of cruelty are recorded in electronic evidence, then in matrimonial proceedings, such documents are required to be taken on record and exhibited during the trial. Advocate Mr. Amin submitted that insistence of filing certificate under Section 65B of the Indian Evidence Act would also be asking from a wife a hard task who would be living in a very threatening position where she would be continuously monitored and observed by the husband and the family members inspite of that such certificate is produced on record to prove the authenticity of the C.D. Advocate Mr. Amin submitted that a prayer which was made for sending CD at Mark 38/1 for examination to the FSL was on the cause which is on record as the respondent–husband had denied for such examination through FSL. Referring to the cross- examination at Exh.41 of the husb