Bombay High Court: Wife in DV Case Can Be Compelled to Give Voice Sample for Verification of Recordings

Court Upholds Husband's Plea, Cites Magistrate's Powers Under DV Act and Supreme Court Precedent

Mumbai, India – The High Court of Bombay, in a significant ruling, has held that a party in proceedings under The Protection Of Women From Domestic Violence Act, 2005 (DV Act) can be compelled to provide a voice sample for verifying recorded conversations. Justice Shailesh P.Brahme , presiding over the case of Abhijit Ankush Shelke vs. Sau. Shubhangi Abhijit Shelke (WP/1782/2024), set aside a Judicial Magistrate First Class ( JMFC ), Parner's order that had refused such a direction.

The Court emphasized that Magistrates possess the power under Section 28(2) of the DV Act to devise their own procedures and that compelling a voice sample is permissible, especially given the quasi-civil nature of DV proceedings where respondents are not treated as 'accused' in the traditional criminal sense.

Case Background: Allegations and Disputed Recordings

The dispute arose from a domestic violence case (Criminal M.A No. 75 of 2013) initiated by the wife, Sau. Shubhangi Abhijit Shelke, against her husband, Abhijit Ankush Shelke , and potentially other family members (referred to as "petitioners" in the High Court judgment, with the husband as Petitioner No.1). The couple, married in 2009 with one son, are both teachers and live separately due to matrimonial disputes.

As a defense, the husband alleged that his wife was involved in an extra-marital affair. He claimed to have recorded conversations between his wife and her alleged paramour on a memory card, subsequently transferred to a compact disc (CD). These recordings, along with a forensic report (Exhibit-96), a certificate under Section 65(B) of the Evidence Act (Exhibit-106), and a transcript (Exhibit-109), were presented as evidence.

An earlier application by the husband (Exhibit-107) to verify the CD's contents and transcript was allowed by the JMFC , and the wife's challenge to this order was dismissed by the High Court in 2019. The current controversy stemmed from the husband's subsequent application (Exhibit-114) seeking a directive for the wife to provide a voice sample for forensic verification, which the JMFC rejected on February 14, 2024. This rejection prompted the husband to file the present writ petition.

Arguments Presented

The Husband (Petitioner) argued: * The wife denied her voice in the recorded CD during arguments, necessitating the voice sample. * She is bound to provide the sample, citing precedents like Ritesh Sinha vs. State of Uttar Pradesh (Supreme Court) and Jil w/o. Priyanka Choksi vs. State of Gujarat (Gujarat High Court). * Constitutional protections under Articles 20 and 21 against self-incrimination are not a bar in DV proceedings, which are quasi-civil. * The electronic evidence was adequately supported by forensic reports and expert testimony.

The Wife (Respondent) contended: * The application for a voice sample was belated and intended to prolong proceedings. * The CD and memory card were not properly proven, making verification futile. * The plea of an extra-marital affair had already been dismissed in a separate divorce petition (HMP No. 250/2013) filed by the husband. * The original electronic device used for recording was not on record.

High Court's Rationale and Key Findings

Justice Brahme undertook a detailed examination of the legal provisions and precedents to determine if the wife could be compelled to give her voice sample.

Nature of DV Proceedings and Magistrate's Powers: The Court reiterated that proceedings under the DV Act are quasi-civil and quasi-criminal. Crucially, it noted:

"In the proceedings under domestic violence act, the parties are not informant and accused in the sense of criminal jurisprudence... Therefore, principles of Article 20(3) of the Constitution of India are not attracted."

The Court highlighted Section 28(2) of the DV Act, which empowers the Magistrate to "lay down its own procedure for the disposal of an application." Justice Brahme observed:

"If there is adequate material on record having potential to prove the relevant facts, a person can be compelled to give voice sample. Such power is conceded with the Magistrate. Due to advent of technology, electronic evidence is being introduced. The electronic evidence is replacing conventional evidence. There is more need to invest such powers to the Magistrate who is a fact finding authority."

Admissibility and Probative Value of Electronic Evidence: The Court found that the husband had presented prima facie material (forensic report, 65B certificate, transcript, expert testimony) supporting the electronic recordings. It stated that the "probative value of electronic material can be gone into during the course of trial" and it was "inappropriate to discard the material at this stage" on grounds of originality or genuineness.

Reliance on Precedents: * Ritesh Sinha vs. State of Uttar Pradesh (AIR 2019 SC 3592): The Supreme Court held that compelling an accused to give a voice sample does not violate Article 20(3) and that Magistrates have the power to order it for crime investigation. The High Court drew strength from this, noting, "On the contrary, Magistrate is recorded to be conceded with the power to order a person to give a sample of his voice." * Jil w/o. Priyanka Choksi vs. State of Gujarat (2024 ALL MR(Cri).128): The Bombay High Court found this Gujarat High Court judgment to have "persuasive value" as it dealt with a similar issue in DV proceedings. The Gujarat HC had emphasized the object of the DV Act and the Magistrate's wide powers under Section 28(2), and the need to embrace technological evidence.

Other Considerations: * Effect of HMP Judgment: The findings in the husband’s dismissed divorce petition (HMP No. 250/2013) regarding the extra-marital affair were deemed not binding on the DV court, as the electronic evidence was not before the HMP court. * Delay: The application for a voice sample was not considered fatally delayed as evidence recording was still ongoing.

The Verdict: Voice Sample Ordered

Concluding that the JMFC 's reasons for rejecting the application were unsustainable, Justice Brahme allowed the writ petition. The Court ordered: 1. The impugned order dated 14.02.2024 passed by the JMFC , Parner, is quashed and set aside. 2. The husband's application (Exhibit-114) for directing the wife to give a voice sample is allowed. 3. The wife (Respondent) shall tender her voice sample within three weeks, to be referred to a forensic laboratory for verification. 4. The husband (Petitioner) shall bear the expenses for this exercise.

This judgment clarifies the scope of a Magistrate's powers in DV proceedings concerning the collection of evidence, particularly voice samples, in an era of increasing reliance on electronic records. It underscores the court's pragmatic approach to ensure that relevant evidence can be brought on record to aid in the effective adjudication of domestic violence cases.