DELHI HIGH COURT
S.Muralidhar and I.S.Mehta, JJ.
X —Appellant
versus
Z —Respondent
Mat.APP.(F.C.) No.78 of 2015
Decided on 11.6.2015

IMPORTANT POINT
Normally a judicial order which records what transpired in the presence of the Court should be taken to be correct.

Headnote:(i) Family Courts Act, 1984 — Section 19 — Application by Father for modification of order passed by Family Court so as to grant 50% of vacations of children during summer break to applicant and call children for interview to determine their wish — Family Judge interacted with children and declined to make any further modification or variation in earlier order and restricted custody of children with applicant-appellant father to 50% of the vacation period — Appeal — Contention that interaction of Family Judge with children was “incomplete” record as recorded and observed by Judge — Normally a judicial order which recorded what transpired in presence of Court should be taken to be correct — Neither lawyer nor litigant may claim to contradict it except before the judge himself and no where else — High Court as such was not inclined to meet children in chamber to ascertain if what was recorded by Family Judge as to what transpired during his interaction with children was incomplete — Repeated interaction with children in the chambers will not be in their best interest. (Paras 17 to 21)

       (ii) Family Courts Act, 1984 — Section 19 — Issue of child custody and matter pending trial before Family Court — Appeal against interim order on custody — Appellant father enclosing “personal diary” stated to have been maintained by one of children with appeal — “Personal diary” contents reflected very private and personal feelings and opinions of young child about his parents, sibling, friends and relatives — Placing such documents in public domain would violate the right to privacy of not only author of document but others whose names and conducted found mentioned in it — Document directed to be taken into a sealed envelop to be allowed to be inspected only upon specific prior permission from Court.

       Held: Before parting with the case, the Court would like delve into another issue of serious concern that has emanated from the present appeal in the form in which it has been presented. Enclosed with the appeal as Annexure P-18 is the copy of a purported ‘personal diary’ stated to have been maintained by one of the children. The Court at the outset would like to clarify that it should not be construed as having accepted either the genuineness of the said ‘personal diary’ or that it was indeed authored by the child as claimed by the Appellant. Without commenting on either of the said issues, and leaving their determination to the trial Court after recording evidence, the Court notes that contents of the document reflect inter alia the very private and personal feelings and opinions of a young child about his parents, sibling, friends and relatives. It is not something which should be casually placed in the public domain as it is bound to violate the right to privacy of not only the author of the ‘personal diary’ but others whose names and conduct find mention therein and is likely to affect the author’s relationships with them.

       Where litigants themselves do not realise the implications that this has for the right to privacy and dignity of the parties involved in a litigation, the Court expects the lawyers handling the litigation to display that understanding of the legal position. The law of evidence of this country, for instance, recognises that communication between spouses or between a lawyer and the client are ‘privileged’. The Supreme Court has in several decisions explained that the right to privacy of individuals flows from Article 21 of the Constitution. Lawyers are expected to act with professional responsibility in cases that involve disclosure of private and personal information.

       Merely because copy of a child’s ‘personal diary’ was handed over to the Respondent mother during the hearing before the Family Court, and was not made formally part of the record, the counsel for the father could not have presumed that it was alright to enclose that document as an annexure to the appeal without first seeking leave of this Court. The nature of the document is such that its casual disclosure by placing it in the public domain would irreparably compromise the right to privacy of the author of the document, not to speak of the right of privacy of others whose names and conduct may find mention therein.

       Having now come across a number of cases of matrimonial and custody disputes, in the civil and criminal jurisdictions, the Court notes with concern that there a growing trend among parties and their lawyers to readily disclose in the petitions, in the form of pleadings and documents, the most private and personal details of their clients and of the opposite parties, without a thought for the privacy implications, or even embarrassment potential, that it has. All too often no attempt is made to first seek the leave of the Court to tender the documents, be it in the form of private letters, notings, photographs, electronic evidence including video clips, text messages, chat details, emails, CCTV footage etc. the contents of which are of a private and personal nature. The Court has to consider if such documents are relevant to the case and how they should be presented, preserved and provided to the parties.

       The Court considers it appropriate to issue the following directions to the Family Courts in Delhi, the parties and the lawyers, to be followed hereafter in the cases pending in those Courts:

        (i) Where a party in a case seeks to rely upon a document which in his or her assessment or the assessment of the party’s lawyer is of a sensitive nature, viz., which contains details of a personal or private nature concerning a party or a person or their conduct, which when disclosed is likely to affect the right to privacy, or cause embarrassment, then such party and/or the lawyer of such party will first apply to the Court seeking leave to produce such document in a sealed cover. Till such time that leave is granted the contents of the said document shall not be extracted in the pleadings or a copy of the whole or part thereof enclosed with the petition. For this purpose a document would include any writing, private letters, notings, photographs, and documents in electronic form including video clips, text messages, chat details, emails, printed copies thereof, CCTV footage etc.

        (ii) Where upon a party applying under (i) above, or where any other party, or the Family Court on its own, comes across a document on record in the case which is prima facie of a sensitive nature, viz., which contains details of a personal or private nature concerning a party or a person or their conduct, which when disclosed is likely to affect the right to privacy, or cause embarrassment, the Family Court will pass appropriate orders concerning the said document including providing copies thereof to the parties, preserving the originals or copies as the case may be in a sealed cover, de-sealing for being produced during Court proceedings and re-sealing after the purpose for which they are directed to be produced is over.

        (iii) The Family Court will also bind down by specific directions, the parties and their respective lawyers, and the Court staff regarding the making of copies, use, preservation and dissemination of such document with a view to maintaining its confidentiality. The Family Court can also pass necessary directions to specify the conditions upon which access would be permitted to such document by third parties.

        (iv) The Family Court will endeavour to decide on the issues at (i) (ii) and (iii) above, without unnecessary delay, in accordance with law. The above directions are in the nature of broad guidelines and can be suitably modified and adapted/applied to a given situation by the Family Court. The Family Court will, however, at all times keep in view the requirements of protecting the rights to privacy and dignity of the parties and persons.

        (v) The Family Court should as far as possible and practicable invoke the power under Section 11 of the Family Courts Act 1984 and hold the proceedings in camera. Where the circumstances so warrant, the Family Court may in the orders uploaded on the website or made available otherwise, suitably anonymize the names of the parties.

       Unless there is a specific order of the Family Court, or where the party thinks it to be absolutely essential, or where suitable alternative arrangements are unable to be made, parties should avoid bringing children to the Family Court on a routine basis. Lawyers should also advise their clients in this regard since repeated visits to Courts to witness the legal contests between and among parents and relatives is not desirable or conducive for the healthy development of children.

       The above directions shall also apply, as far as possible, hereafter to appeals or further proceedings in this Court emanating from the orders of the Family Court. (Paras 23, 27 & 29 to 33)

       Result: Appeal dismissed.