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2015 Supreme(Raj) 372

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
MOHAMMAD RAFIQ, J.
VISHAL KAUSHIK – Appellant
VS.
FAMILY COURT & ANOTHER – Respondents
CIVIL WRIT PETITION NO.14726/2013 WITH CIVIL MISC. STAY APPLICATION NO.12315/2013
Decided On : 26.05.2015

Advocates:
Advocate Appeared:
Mr. Peush Nag, for the petitioner
Mr. Vijayant Nirwan, for Respondent No. 2

Headnote:Family Court Act, 1984, Sec. 14 read with Evidence Act, 1872, Sec. 122 and Constitution of India, Art. 21 - Privileged communication - Whether conversation tape recorded by husband without wife's consent or without her knowledge, can be received in evidence and be made use of against her? - Held - The answer is no - Recording of such conversation had breached her "right to privacy" - As the communication is a tape recorded conversation, without the knowledge of other spouse, it cannot be, admissible in evidence or otherwise received in evidence - Wife cannot be forced to under go voice test.

       Writ petition dismissed. (Paras 25 & 26)

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Judgement Key Points

Key Points: - Point 1 (!) - Point 2 (!) - Point 3 (!) - Point 4 (!) - Point 5 (!) - Point 6 (!) - Point 7 (!) - Point 8 (!) - Point 9 (!) - Point 10 (!)

What is...


ORDER :

1. This writ petition has been filed by the petitioner, Vishal Kaushik, challenging order dated 26.07.2013, whereby seven applications filed by him, respectively on 15.06.2013 (Annesure-3), 21.06.2013(Annexure-4 and 5); 28.06.2013 (Annexure-7); 19.07.2013 (Annexure-8, 9 and 10), were dismissed by Family Court, Ajmer (for short 'the Family Court').

2. Briefly stated, the facts of the case are that the petitioner filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Haridwar (Uttarkhand) in September, 2008. In that application, the petitioner alleged that Respondent No. 2-wife(for short 'respondent-wife') caused mental cruelty to him by different means, especially because she had extra marital affairs with a person named Kapil Rana, with whom she even had physical relationship. She used to constantly meet him at various places including at the flat of said Kapil Rana and petitioner's flat. Respondent-wife contested the divorce petition by filing written statement wherein she denied all the allegations. Eventually, the divorce petition came to be transferred by order of the Supreme Court to Family Court at Ajmer, on the ground of convenience of the respondent-wife. Since the proceedings before the Family Court were getting delayed, the petitioner filed S.B. Civil Writ Petition No. 17485/2012 before this Court. On undertaking of the petitioner that he shall adduce his evidence within one month from the date next fixed before the Family Court, the writ petition was disposed of vide order dated 01.11.2012 with direction to the Family Court to give reasonable time to the respondent-wife, not exceeding three months and make efforts to decide the divorce petition at the earliest.

3. When evidence of the petitioner was concluded, the matter came up before the Family Court on 15.06.2013 for recording statement of the respondent-wife and her witnesses. She produced herself as NAW-1 on that day. The petitioner moved two applications on that very day. First application was filed for placing on record original cassette with a DVD, which was marked as Exhibit-1 and camcorder(Camera), on which recording was made, charger of camcorder and the bag in which camcorder, charger and cassette were kept. Second application was moved with the prayer that the original cassette (Exhibit-1) and DVD be sent for FSL examination to determine their genuineness. Family Court dismissed the first application without seeking reply from the respondent. With regard to second application, the Family Court directed the petitioner to furnish copy of the same to the counsel of the respondent, who was asked to file reply thereto. Respondent filed reply to such application on 21.06.2013 in which she stated that the DVD did not contain her voice. The petitioner then moved yet another application with the prayer that the respondent's voice sample may be recorded by some independent forensic organisation and the same should be matched with the voice in all the video and audio DVDs submitted by the petitioner as Exhibit-1, 4 and 5. Later on, the petitioner submitted one more DVD to be part of voice match exercise on 05.07.2013, which was titled as “Kapil Intro”, reiterating his request for obtaining voice sample of the respondent to ascertain whether such DVDs contain her voice or not. Petitioner moved another application on 21.06.2013 to implead Kapil Rana, with whom the respondent-wife allegedly had extra marital relations, as party respondent. According to the petitioner, the Presiding Officer of the Family Court on receiving various applications of the petitioner observed that all those application would be decided on conclusion of evidence.

4. Cross examination of the respondent-wife resumed on 28.06.2013 on which date she again reiterated that she has not seen the video in Exhibit-1 DVD. The petitioner then again moved an application that he should be allowed to play DVD Exhibit-1 in the Court so that the respondent m


















































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