[S. 14 of Family Courts Act] Del HC | In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a matrimonial dispute, observed that,

“the only criterion or test under Section 14 of Family Courts Act for a Family Court to admit, evidence is it’s subjective satisfaction that the evidence would assist it to deal effectually with the dispute.”

Divorce petition was filed by the husband/respondent on 26th September, 2012 seeking dissolution of marriage on the ground of cruelty under Section 13(1)(ia)of the Hindu Marriage Act, 1955.

As evidence, husband filed a Compact Disc (CD) in which he had recorded how the wife was talking a friend of hers about the husband’s family which clearly was derogatory, defamatory and constituted cruelty.

Recording of ‘private’ conversation without the knowledge or consent of wife is in breach of her fundamental right to privacy.

Wife while objecting to the said evidence stated that since the evidence comprised in the CD was collected in breach of her fundamental right to privacy, the same is not admissible in a court of law.

She further argued that a person is entitled to criticise someone and not share the criticism with the world; and that a person has a right to all thoughts and behavioural patterns within one’s zone of privacy.

Additionally it has been urged that the husband’s action of surreptitiously and clandestinely recording the wife’s telephone conversation with her friend also amounts to an offence under Section 354-D of the Penal Code 1860, whereby the very act of recording such conversation is a criminal offence, punishable in law.

Family Court’s opinion on the CD as evidence:

“This court is of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the petitioner/ his family and the status of the matrimonial life would, certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant.”

One of the earliest, leading decisions on the question of admissibility of tape-recorded conversations is Regina v. Maqsud Ali, (1966) 1 QB 688 where a secretly tape-recorded conversation was the only incriminating piece of evidence implicating the accused persons for murder.

Analysis and Conclusion

While a litigating party certainly has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case.

Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

In High Court’s opinion,

Legislature could not have enunciated it more clearly than to say that the Family Court “may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.”

“…What credence, value or weightage is to be given to the evidence so received is discretionary upon the judge, when finally adjudicating the dispute.”

Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be

(i) in breach of Section 14 which unequivocally expresses the intention of the Legislature ;

(ii) in breach of settled principles of evidence ; and

(iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values.

Bench further observed that, in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties.

Thus, if Section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then Section 14 may as well be effaced from the statute.

In context of the present matter, Court stated that conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a ‘relevant fact’ as understood in law, upon a combined reading of Sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.

Though Court added to its conclusion that, if the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people’s personal and family lives and thereby in the society at large.

While law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.

In view of the above, no infirmity is found in Family Court’s decision. [Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672 , decided on 30-06-2020]

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