Tape recordings made without the knowledge of one party infringe their right to privacy and violate constitutional rights, rendering them inadmissible in evidence for deciding divorce petitions under Section 13 of the Hindu Marriage Act.

ORDER

1. Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the impugned orders dated 13.7.2021 and 8.1.2022 passed by the 1st Addl. Principal Judge, Family Court, Indore in RCS (HM) No.947/2017, whereby admissibility of conversation between both the parties recorded in Pen Drive and its transcript is declared inadmissible in the evidence.

2. Brief facts of the case are that petitioner has filed a petition under Section 13(1)(ia) of the Hindu Marriage Act for grant of divorce on the ground of cruelty. Respondent filed her written statement. During the examination of petitioner respondent objected to the Pen Drive being exhibited on the ground of infringement of right to privacy of respondent as the said conversation was between respondent and her sister, which was recorded without her knowledge. Vide order dated 13.7.2021 trial Court has denied the admissibility of Pen Drive and its transcript on the ground that the said conversation was incomplete and the said recorded conversation infringes right to privacy of the respondent. Thereafter petitioner filed an application for placing on record the Pen Drive and complete recorded conversation between respondent and her sister and respondent filed reply to the said application, but by the impugned order dated 8.1.2022 trial Court dismissed the application on the ground of res judicata.

3. Learned counsel for the petitioner contended that tape recorded conversation were admissible as evidence since they fell within the purview of documents under Section 3 of the Indian Evidence Act. Learned trial Court has failed to appreciate that as per the citation of Hon'ble Apex Court in the case of R.M. Malkhani Vs. State of Maharashtra reported in 1973(1) SCC 471 tape recording of such conversation is admissible. Trial Court has failed to appreciate that consideration of evidence by a Family Court is not restricted by the rules of relevancy or admissibility provided under the Evidence Act. Learned counsel for the appellant has placed reliance upon the judgment in the case of Punit Agrawal Vs. Murarilal and others, 2020(3) MPLJ 368, in the case of Anurima Vs. Sunil Mehta 2016(1) MPLJ 333 and in the case of Deepti Kapur Vs. Kunal Julka, 2020 SCC OnLine Del 672. Therefore, learned counsel for the petitioner prays that both the impugned orders be set aside and the application dated 12.8.2021 be allowed and documents enclosed along with the said application be taken on record.

4. Per contra, learned counsel for the respondent opposes the same prayer and prays for its rejection by supporting both the impugned orders passed by the court below.

5. Counsel for both the parties heard at length and perused the documents filed by the parties before this Court.

6. Considering the above submission and the impugned orders, the sole question which arises for consideration is whether the tape recording and its transcript produced by the petitioner-husband are admissible in evidence?

7. Admittedly the conversation was recorded without the knowledge of the respondent-wife behind her back. The coordinate bench of this Court in the case of Anurima (supra) has held that the conversation recorded without the knowledge of wife behind her back is an infringement of her right to privacy. Besides it is violative of Article 19 & 21 of the Constitution of India.

8. In the case of R.M. Malkhani (supra) the Hon'ble Apex Court has held that:-

'23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice'; and. thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a