The Family Courts Act permits lenient admissibility of evidence, allowing for tape-recorded conversations without the other party's consent, while upholding privacy rights.

ORDER :

K.R.MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. Order dated 18^th October, 2022 (Annexure-7) passed by learned Judge, Family Court, Bhubaneswar in C.P. No. 424 of 2016 is under challenge in this writ petition, whereby an application filed by Opposite Party to send the Ext.7, i.e. a CD (Compact Disc) containing conversation between the Petitioner and Opposite Party to S.F.S.L., Bhubaneswar for verification of the voice, has been allowed.

3. Mr. Parida, learned counsel for the Petitioner submits that earlier prayer of the Petitioner with regard to playing of the CD in Court was rejected by learned Judge, Family Court, Bhubaneswar. The document does not bear the certificate as required under Section 65 -B of the Evidence Act, 1872. The document contents privilege communication between the Petitioner and Opposite Party, which should not be utilized in a Court proceeding as it is inadmissible in evidence. In support of his case, he relied upon the decision in the case of Vishal Kaushik v. Family Court , reported in AIR 2015 Raj 146 wherein it is held as under:

“25. Aspect about admissibility of evidence with reference to provisions of Indian Evidence Act, 1872 has indeed been diluted by Section 14 of the Family Court Act. The question, which still arises in the present case, is whether conversation tape recorded by the husband without wife's consent or without her knowledge, can be received in evidence and be made use of against her? That question has to be answered in an affirmative ‘no’, as recording of such conversation had breached her “right to privacy”, one of the facets of her ‘right to liberty’ enshrined under Article 21 of the Constitution of India. The exception to privileged communication between husband and wife carved out in Section 122 of the Indian Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in variety of other situations, but if such communication is a tape recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence. The argument that this would defeat right of fair trial of the petitioner- husband, proceed on the fallacious assumption of sanctimony of the method used in such recording and in that process, ignores the right of fair trial of the respondent-wife. In a case like present one, husband cannot be, in the name of producing evidence, allowed to wash dirty linen openly in the Court proceedings so as to malign the wife by producing clandestine recording of their conversation.

26. In view of above, this Court is inclined to concur with the view taken by Andhra Pradesh High Court in Smt. Rayala M. Bhuvaneswari (supra) that recorded conversation between the petitioner and the respondent, even if true, cannot be admissible in evidence and that the respondent-wife cannot be forced to undergo voice test and expert cannot be asked to compare CDs, which conversation has been denied by her.”

He, therefore, submits that when the document is inadmissible in evidence, sending the CD to S.F.S.L., Bhubaneswar for verification is academic one and should not have been undertaken. He also submits that CD has been prepared without consent or knowledge of the Petitioner. Learned Judge, Family Court, Bhubaneswar without taking note of the aforesaid settled law, allowed the application. Hence, this writ petition has been filed.

4. Mr. Sarangi, learned Senior Advocate for the Opposite Party submits that provision of the Evidence Act is not strictly applicable to a proceeding in the Family Court in view of Section 14