In matrimonial dispute, secret recording is admissible in evidence if found to be relevant

Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court

Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute?

Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the  purpose of deciding the matrimonial dispute between the parties.

   The sequitur to the aforesaid constitutional and legal landscape is that :

(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;

(b) Merely admitting evidence on the record is not proof of a fact-in-issue or a relevant fact ; admitting evidence is not even reliance by the court on such evidence ; admitting evidence is mere inclusion of evidence in the record, to be assessed on a comprehensive set of factors, parameters and aspects, in the discretion of the court ;

(c) The limited threshold test of 'relevance' ensures that the right of a party to bring evidence to court, and thereby to a fair trial, is not defeated. What weight is to be given to evidence so brought-in, and whether or not the court ultimately relies upon such evidence for proof of a fact-in-issue or a relevant fact, is always in the discretion of the court. This, a court may do on other considerations, including considerations of justice and fair play. We must be clear that the test of admissibility is only a 'threshold test', which opens the doors of the court, as it were, so that relevant evidence brought by a litigating party is permitted entry into the court records. It does not bind the court to treat such evidence as proof of a fact-in-issue or relevant fact. Section 14 of the Family Courts Act makes this threshold test even less stringent, in that the Family Court may receive evidence, whether or not it would otherwise be relevant or admissible under the Evidence Act, provided in its opinion such evidence would assist it in effectively dealing with the dispute;

(d) It appears that a crucial facet of the above rule of evidence has so far been ignored, namely the consequences that may follow if evidence is collected illegally by violation of someone's rights. Merely because a court allows evidence to be admitted, does not mean that the person who has illegally collected such evidence is absolved of liability that may arise, whether in civil or criminal law or both ;

(e) Although MP Sharma (supra) and Pooran Mal (supra) were decided before the right to privacy was authoritatively recognised as a fundamental right in Puttaswamy (supra), the challenge in those two cases also arose from allegations of violation of fundamental rights inter alia under Articles 20(3) and 14 of the Constitution. Also, the decision in Puttaswamy does not allude to any change in the principles of admissibility of evidence by reason of recognition of privacy as a fundamental right ; and in fact the principle of Pooran Mal has been followed by the Supreme Court even as recently as 2019 in Yashwant Sinha (supra), which is a post-Puttaswamy judgment, though in the context of documents procured illegally from a ministry and not in breach of any fundamental right ;

(f) Drawing from the observations of the Supreme Court in Tukaram S. Digole (supra), a word of caution would be in place here. The Family Court must bear in mind that tape recordings are more susceptible to tampering and alteration by transposition, excision etc., which may be difficult to detect; and therefore such evidence must be received and treated with caution and circumspection ; and, to rule-out the possibility of any kind of tampering, the standard of proof applied by a court for the authenticity and accuracy of a tape recording should be more stringent as compared to other documentary evidence;

(g) In the context of section 50 of the NDPS Act, in Baldev Singh (supra) the Supreme Court has said that while considering the aspect of fair trial, the nature of evidence obtained and the nature of the safeguard violated are both relevant factors. If therefore, evidence has been collected in a search conducted in violation of the statutory mandate of section 50 of the NDPS Act, the admission of such evidence would make the trial unfair ; and in that circumstance, the evidence must be excluded. Under the Family Courts Act, on the other hand, the statutory mandate of section 14 is to relax the rules of admissibility of evidence, which relaxation must therefore guide the Family Court. [Para No.34]

   That being said however, considering the breadth of the power conferred upon it under section 14 of the Family Courts Act, some safeguards are required to be considered by the Family Court while exercising its power to receive evidence under that provision.

Firstly, even though a given piece of evidence may have been admitted on the record, the Family Court must be extremely circumspect in what evidence it chooses to rely upon in deciding the dispute, particularly the authenticity and genuineness of the evidence, for which stringent standards must be applied. Secondly, if in its opinion the nature of the evidence sought to be adduced is inappropriate, embarrassing or otherwise sensitive in nature for any of the litigating parties, or for that matter for some other person not directly connected with the litigation, the court may restrict the parties who are present in court at the time of considering such evidence ; or may anonymise or redact the evidence ; or may conduct in-camera proceedings so as not to cause distress to any person or party, while at the same time not hesitating to receive evidence that the Family Court considers necessary for effectively deciding the dispute. All proceedings must be conducted strictly within the bounds of decency and propriety; and no opportunity should be given to any party to create a spectacle in the guise of producing evidence. Thirdly, in egregious cases, the Family Court may initiate or direct initiation of legal action against a litigating party or other person, who may appear guilty of procuring evidence by illegal means. Any party aggrieved by the production of such evidence would also be at liberty to initiate appropriate proceedings, whether in civil or criminal law, against concerned parties for procuring evidence illegally, although the initiation or pendency of such proceeding shall not make the evidence so produced inadmissible before the Family Court.[Para No.35]

   It may be noted that in the impugned order the Family Court has expressed its subjective opinion that the recording comprised in the CD will certainly assist it in deciding the dispute between the parties ; and that therefore the evidence on the CD is relevant. Even otherwise, the 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. [Para No.35]

Delhi High Court

Deepti Kapur

Vs.

Kunal Julka

Decided on 30/06/2020