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2021 Supreme(Online)(P&H) 52
HIGH COURT OF PUNJAB AND HARYANA
LISA GILL, J
NEHA – Appellant
Versus
VIBHOR GARG – Respondent
CR 1616/2020
Evidence recorded without consent is inadmissible, infringing on privacy rights under Article 21, even in Family Court proceedings.
Headnote:(A) Hindu Marriage Act, 1955 - Section 13 - Indian Evidence Act, 1872 - Sections 65 and 65-B - Right to privacy - The court addressed the admissibility of evidence recorded without consent, emphasizing the infringement of privacy rights under Article 21 of the Constitution. The Family Court's acceptance of a CD containing recorded conversations was deemed unjustified. (Paras 1, 2, 3, 4, 5, 6, 7, 8)
(B) Evidence - Admissibility - The court ruled that conversations recorded without knowledge or consent cannot be admitted as evidence, reinforcing the principle that privacy rights must be upheld in matrimonial disputes. (Paras 9, 10, 11, 12)
Facts of the case:
The petitioner-wife challenged the Family Court's order allowing the husband to submit a CD of recorded conversations as evidence in a divorce petition filed under Section 13 of the Act. The marriage took place on 20.02.2009, and a daughter was born on 11.05.2011. The divorce petition was filed in 2017, with an amended petition submitted in 2018. The husband sought to introduce recordings made without the wife's consent, claiming they supported allegations of cruelty.
Findings of Court:
The court found that the recordings were made without the wife's knowledge, constituting a breach of her right to privacy. The Family Court's decision to allow the evidence was overturned, and the application to submit the CD was dismissed.
Issues: The main issues included whether the recordings could be admitted as evidence and the implications of privacy rights in matrimonial proceedings.
Ratio Decidendi: The court held that the Family Court is not bound by strict rules of evidence, but the acceptance of evidence that infringes on privacy rights is impermissible. The court emphasized that clandestine recordings cannot be used to undermine the fundamental rights of a spouse.
Result: The impugned order dated 29.01.2020 was set aside, and the application to submit the CD was dismissed.
This matter is being taken up for hearing through video conferencing due to outbreak of the pandemic, COVID-19.
This order shall dispose of CR No.1616 of 2020 and CR No. 2538 of 2020.
CR No. 1616 of 2020 has been filed by the petitioner (wife) arrayed as respondent in the petition under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) filed by the husband before the learnedDistrict judge, Panchkula, challenging order dated 29.01.2020, passed by the learned Principal Judge/Family Court, Bathinda, whereby the husband has been allowed to prove the Compact Disc (for short ‘CD’) pertaining to conversation between him and the wife subject to the condition of its correctness.
CR No. 2538 of 2020 has been filed by the husband, seeking direction to the learned Family Court to expedite proceedings in the petition under Section 13 of the Act, in a time bound manner. This revision petition was directed to be listed along with CR No. 1616 of 2020.
Brief facts of the matter as emanating from CR No. 1616 of 2020 are that petition under Section 13 of the Act was filed by the respondent-husband seeking divorce on various grounds. Marriage between the parties was solemnized on 20.02.2009. A daughter was born out of the wedlock on 11.05.2011 and petition seeking divorce filed in the year 2017.
An amended petition was filed on 03.04.2018. Husband submitted his affidavit by way of evidence in chief on 07.12.2018. When the matter was listed for cross-examination, an application was moved by the husband on 09.07.2019 seeking permission to submit his supplementary affidavit by way of examination-in-chief along with CD and transcriptions of conversations so recorded in the memory cards/chips of the respective mobile phones.
Reply was filed to the application. Application dated 09.07.2019 was allowed by the learned Family Court vide impugned order dated 29.01.2020 while observing that the husband is allowed to prove the CD pertaining to the conversations between him and his wife subject to the condition of correctness and that strict principles of evidence are not applicable to the proceedings before the Family Court keeping in view Section 14 and 20 of the Family Court Act.
Aggrieved therefrom, CR No. 1616 of 2020 has been filed by the wife.
Learned counsel for the petitioner-wife has vehemently argued that the evidence sought to be led by the husband is completely beyond pleadings, therefore, absolutely impermissible. It is contended that the pleadings do not refer to any such conversations which are sought to be proved. Therefore, this evidence has been wrongly accepted. Furthermore, the said CD’s are a clear cut infringement and downright invasion of the wife’s privacy thus a violation of Article 21 of the Constitution of India, as the conversations have been recorded without knowledge, what to say of consent of the petitioner. It is further contended that the learned Family Court has given a complete go bye to Section 65 of the Indian Evidence Act, because if recording has been done through a mobile phone, CD’s of the recording and transcripts thereof in any case, cannot be accepted as evidence thereof. Moreover, there is non-compliance of Section 65-B of the Evidence Act. Learned counsel for the petitioner reiterates that the respondent- husband being very well aware of the conversations allegedly held years prior to filing of the divorce petition was at liberty to have incorporated the same in his pleadings at the very first instance. Furthermore, though, veracity of such conversations cannot be vouched for, even if taken to be correct, the same are not admissible in evidence having been recorded without the consent or knowledge of the petitioner. It is thus prayed that this petition be allowed.
Per contra, learned counsel for the respondent while refuting arguments raised by learned counsel for the petitioner, while referring to Section 122 of the Evidence Act submits that there is no question of anyinfringement of rig
