Family Courts have discretion to admit evidence for child custody, prioritizing welfare over privacy rights under Article 21.

JUDGMENT

1] This petition has been preferred under Article 227 of the Constitution of India being aggrieved by the order dated 28.06.2025 passed by the learned Additional Judge to the Court of Principal Judge, Family Court, District Indore in MJC/GW/99/2023 whereby learned Judge rejected the application filed by the petitioner.

2] Matter in brief, is that, the marriage of petitioner No. 1 and the respondent was solemnized on 29.04.2013 as per Hindu rituals which was later on dissolved on vide decree dated 21.06.2023 wherein the parties were granted divorce by mutual consent. The petitioner No. 2 a minor daughter was born in wedlock on 29.09.2018 and is presently residing with petitioner No. 1/wife as per the conditions of the mutual consent divorce. Despite the settled conditions of mutual divorce, the respondent has again filed an application under Section 25(1) and 12 of The Guardians and Wards Act, 1890 seeking the custody of the minor daughter/petitioner No. 2. The respondent during his examination-in-chief has placed on record, the alleged pen drive containing audio/video clips and telephonic conversation with the petitioners and grandparents. The petitioners filed an application under Order XIII Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (in short “CPC”) for rejection/deletion of the above mentioned pen drive on the ground that it amounts to infringement of the right to privacy with other grounds.

3] Learned counsel for the petitioner has argued that the impugned order deserves to be set aside on being contrary to law. The Family Court grossly has erred in not considering the fact that placing on record such electronic evidence would prejudice to the social status of the petitioners. It is a well settled that in such cases, recorded telephonic conversations amount the parties or any other third person is illegal and amounts to infringement on the right to privacy of the wife. He has further argued that learned Family Court has also erred in not appreciating the fact that the telephonic conversation/vide call and video recording is a part of modern man's life and often, it is intimate and confidential in character and such conversations are an important facet of man's private life. Tapping of such telephonic/video conversation and vide recordings without knowledge and consent of the other parties, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. Hence, it is prayed that the impugned order be set aside and petition be allowed.

4] In support of his contention, counsel for the appellant has placed reliance over the judgment Aasha Lata Soni Vs. Durgesh Soni , LAWS (CHH) 2023-10-30, Neha Vs. Vibhore Garg , SCC 2021 OnLine P & H 4571, Anurima @ Abha Mehta Vs. Sunil Mehta , AIR 2016 MP 112, Anvar P.V. Vs. P.K. Basheer & Others, 2014 (10) SCC 473 and Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Another, 1987 (1) SCC 42.

5] On the contrary, Counsel for the respondent/State has vehemently opposes the submissions of the counsel for the petitioners and prays for dismissal of the petition.

6] Having considered the rival submissions advanced by learned counsel for the parties and perused the available record.

7] The validity of impugned order is required to be tested on the anvil of principles of admissibility of evidence keeping in view the statement of objects & reasons and the provisions of Section 14 & 20 of Family Courts Act, 1984 . The Statement of objects & reasons of the Family Courts Act enunciates the main purpose of its enactment in the following words: -

“Statement of Objects and Reasons.—Several associations of women, other organisations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 5