Wednesday, 9 September 2015

Whether conversation tape recorded by husband without wife's consent or without her knowledge, can be received in evidence?

Disclosure of even true private facts has the
tendency to disturb a person's tranquility. It may
generate many complexes in him and may even
lead to psychological problems. He may,
thereafter, have a disturbed life all through. In the
face of these potentialities, and as already held
by this Court in its various decisions referred to
above, the Right of Privacy is an essential
component of right to life envisaged by Article 21.
The 'right, however, is not absolute and may be
lawfully restricted for the prevention of crime,
disorder or protection of health or morals or
protection of rights and freedom of others."
Aspect about admissibility of evidence with reference to
provisions of Indian Evidence Act, 1872 has indeed been diluted by
Section 14 of the Family Court Act. The question, which still arises in the
present case, is whether conversation tape recorded by the husband
without wife's consent or without her knowledge, can be received in
evidence and be made use of against her? That question has to be
answered in an affirmative 'no', as recording of such conversation had
breached her “right to privacy”, one of the facets of her 'right to liberty'
enshrined under Article 21 of the Constitution of India. The exception to
privileged communication between husband and wife carved out in
Section 122 of the Indian Evidence Act, which enables one spouse to
compel another to disclose any communication made to him/her during
marriage by him/her, may be available to such spouse in variety of other
situations, but if such communication is a tape recorded conversation,
without the knowledge of the other spouse, it cannot be, admissible in
evidence or otherwise received in evidence. The argument that this
would defeat right of fair trial of the petitioner-husband, proceed on the
fallacious assumption of sanctimony of the method used in such
recording and in that process, ignores the right of fair trial of the
respondent-wife. In a case like present one, husband cannot be, in the
name of producing evidence, allowed to wash dirty linen openly in the
Court proceedings so as to malign the wife by producing clandestine
recording of their conversation.
In view of above, this Court is inclined to concur with the
view taken by Andhra Pradesh High Court in Smt. Rayala M.
Bhuvaneswari(supra) that recorded conversation between the
petitioner and the respondent, even if true, cannot be admissible in
evidence and that the respondent-wife cannot be forced to undergo
voice test and expert cannot be asked to compare CDs, which
conversation has been denied by her.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR.
ORDER
S.B. CIVIL WRIT PETITION NO. 14726/2013
WITH
S.B. CIVIL MISC. STAY APPLICATION NO. 12315/2013
VISHAL KAUSHIK
VS.
FAMILY COURT & ANOTHER.
DATE OF ORDER : 26.05.2015
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ

REPORTABLE
Citation; AIR 2015 RAJ146

 This writ petition has been filed by the petitioner, Vishal
Kaushik, challenging order dated 26.07.2013, whereby seven
applications filed by him, respectively on 15.06.2013(Annesure-3),
21.06.2013(Annexure-4 and 5); 28.06.2013(Annexure-7); 19.07.2013
(Annexure-8, 9 and 10), were dismissed by Family Court, Ajmer(for short
'the Family Court').
Briefly stated, the facts of the case are that the petitioner
filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955
before the Family Court, Haridwar(Uttarkhand) in September, 2008. In
that application, the petitioner alleged that Respondent No. 2-wife(for
short 'respondent-wife') caused mental cruelty to him by different means,
especially because she had extra marital affairs with a person named
Kapil Rana, with whom she even had physical relationship. She used to
constantly meet him at various places including at the flat of said Kapil
Rana and petitioner's flat. Respondent-wife contested the divorce
petition by filing written statement wherein she denied all the allegations.
Eventually, the divorce petition came to be transferred by order of the
Supreme Court to Family Court at Ajmer, on the ground of convenience
of the respondent-wife. Since the proceedings before the Family Court
were getting delayed, the petitioner filed S.B. Civil Writ Petition No.
17485/2012 before this Court. On undertaking of the petitioner that he
shall adduce his evidence within one month from the date next fixed
before the Family Court, the writ petition was disposed of vide order
dated 01.11.2012 with direction to the Family Court to give reasonable
time to the respondent-wife, not exceeding three months and make
efforts to decide the divorce petition at the earliest.
When evidence of the petitioner was concluded, the matter
came up before the Family Court on 15.06.2013 for recording statement
of the respondent-wife and her witnesses. She produced herself as
NAW-1 on that day. The petitioner moved two applications on that very
day. First application was filed for placing on record original cassette
with a DVD, which was marked as Exhibit-1 and camcorder(Camera), on
which recording was made, charger of camcorder and the bag in which
camcorder, charger and cassette were kept. Second application was
moved with the prayer that the original cassette(Exhibit-1) and DVD be
sent for FSL examination to determine their genuineness. Family Court
dismissed the first application without seeking reply from the respondent.
With regard to second application, the Family Court directed the
petitioner to furnish copy of the same to the counsel of the respondent,
who was asked to file reply thereto. Respondent filed reply to such
application on 21.06.2013 in which she stated that the DVD did not
contain her voice. The petitioner then moved yet another application
with the prayer that the respondent's voice sample may be recorded by
some independent forensic organisation and the same should be
matched with the voice in all the video and audio DVDs submitted by the
petitioner as Exhibit-1, 4 and 5. Later on, the petitioner submitted one
more DVD to be part of voice match exercise on 05.07.2013, which was
titled as “Kapil Intro”, reiterating his request for obtaining voice sample of
the respondent to ascertain whether such DVDs contain her voice or not.
Petitioner moved another application on 21.06.2013 to implead Kapil
Rana, with whom the respondent-wife allegedly had extra marital
relations, as party respondent. According to the petitioner, the Presiding
Officer of the Family Court on receiving various applications of the
petitioner observed that all those application would be decided on
conclusion of evidence.
Cross examination of the respondent-wife resumed on
28.06.2013 on which date she again reiterated that she has not seen the
video in Exhibit-1 DVD. The petitioner then again moved an application
that he should be allowed to play DVD Exhibit-1 in the Court so that the
respondent may watch DVD, recognize the contents of the same and
acknowledge the conversation made therein, which would enable him to
put proper question to her regarding contents of the same. The
Presiding Officer of the Family Court did not allow him to do so and
opportunity was granted to counsel of the respondent to file reply to the
application. The petitioner on 19.07.2013 moved one more application
with the prayer that Exhibit-1, DVD be allowed to be played in the Court
in presence of the respondent-wife and the petitioner be allowed to cross
examine her in the light of the contents of the said DVD, Exhibit-1. It
was thereafter that on 19.07.2013, the petitioner filed yet another
application in the above series for keeping the DVDs in sealed packets,
as he apprehended that some interpolation may be done in the contents
of DVDs. He thereafter filed one more application on 19.07.2013 that on
page No. 3 in line No. 15, the cross-examination of the respondent
conducted on 21.06.213 has not been correctly recorded. The Family
Court dismissed all the applications vide order dated 26.07.2013.
Aggrieved thereby, the petitioner has approached this Court by filing
present writ petition.
Mr. Peush Nag, learned counsel for the petitioner has
argued that the learned Family Court has failed to consider the
application dated 15.06.2013 for FSL examination of Exhibit-1, 4 and 5,
DVDs along with DVD titled “Kapil Intro” and another application for
taking voice sample of the respondent-wife and to play DVD Exhibit-1 in
the Court on 28.06.2013 for the purpose of her cross-examination.
Family Court completely ignored contents of said DVDs in which illicit
relationship of the respondent with the said Kapil Rana is clearly
established. It is argued that the respondent-wife has in recorded
conversation admitted her physical relationship with said Kapil Rana to
her husband. It is also argued that there is no third party conversation
involved in the matter, as the husband himself was recording
conversation between him and his wife. The Family Court has failed to
appreciate the fact that admissibility of the documents, electronic record
or other evidence cannot be determined at the stage of admitting the
document in evidence. The Family Court by way of impugned order has
rejected all seven applications and has gone to the extent of deciding the
admissibility of the documents, which are already marked as exhibits
and has held that the contents of the said documents cannot be read
into evidence. These observations and findings of the Family Court are
perverse, illegal and unwarranted in the facts of the case. Learned
counsel for the petitioner has argued that if voice in the DVD aforesaid is
established as that of respondent-wife, entire proceedings would be
frustrated. The Family Court committed grave illegality by keeping the
applications pending till completion of cross-examination of respondent wife
and thereafter, when the petitioner moved application on 19.07.2013
to recall the said witness and permit him to play the DVD in the Court,
said application was illegally rejected by the Family Court. The Family
Court failed to appreciate that in reply to the application dated
28.06.2013, the respondent stated that DVDs in question have been
fabricated by the petitioner so as to obtain divorce. To shatter the said
contention, FSL Examination of the DVDs is essential. FSL Examination
of DVDs and Audio CDs in question will not cause any hardship to the
respondent, rather it will help establishing the contention of either of the
parties.
Learned counsel has submitted that Section 14 of the
Family Courts Act, 1984(for short 'the Act of 1984'), clearly provides that
the Family Court may receive as evidence any report, statement,
document, 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. Thus, the
technicalities and nuances of the procedure otherwise followed by the
Civil and Criminal Courts are not applicable to the proceedings before

the Family Court, as the legislature in its wisdom has decided to keep
the procedural and legal aspect before the Family Courts very simple
and non-complicated, particularly because the parties to the litigation are
not represented before it through lawyers. On the scope of Section 14 of
the Act, learned counsel for the petitioner has relied upon the decision of
Orissa High Court in Sagrika Debatta Vs. Satyanarayan Debatta, AIR
2010 Orissa 58; decision of Bombay High Court in Pramila Shankar
Ghante Vs. Shri Shankar Vishwanath Ghante(Family Court Appeal
No. 100/1996 decided on 23.07.2012); decision of Gauhati High Court in
Akham Ibodi Singh & Anr. Vs. Akham Biradhwaja Singh & Anr.,
2006 CriLJ 3366 and Division Bench judgment of this Court in Manohar
Lal Agrawal Vs. Santosh & ors., II(1993) DMC 202.
Mr. Peush Nag, learned counsel further argued that
overemphasis on the right to privacy, as claimed by the respondent-wife
is misplaced because such right is not available to her in the facts and
circumstances of the present case. Reliance has been placed upon the
decision of the Supreme Court in Sharda Vs. Dharmpal, AIR 2003 SC
3450 wherein it was held that right to privacy is not a absolute right and it
is subject to just exceptions. Even otherwise, in view of Section 11 of the
Family Court Act, proceedings before the Family Court are 'in camera'
proceedings, therefore also, there is no threat of publication of the
evidence brought on record by either party. If the DVD in question is not
allowed to be played and voice sample of the respondent-wife is not
allowed to be obtained for deciding the question whether contents of
DVD are vague or not, this would defeat fundamental right of fair trial of
the petitioner. The alleged right to privacy arising out of right to life of the
respondent-wife cannot overshadow the right of the petitioner-husband
to live with dignity, which also arises from the right to life as enshrined in
Article 21 of the Constitution of India. Learned counsel for the petitioner
has further argued that it would be mockery of justice as much as
anomaly of law that if an offence is committed against a woman behind
the closed doors of her matrimonial home, then presumption is read
against the husband and his family, but when the wife commits adultery
against her husband in the matrimonial home in his absence with her
lover and husband exposes her, she is allowed to take shelter of right to
privacy. If such double standards are followed and read under law, it will
not only breach the fundamental right of equality before law and equal
protection of law, but will result in complete collapse of the sacred
institution of marriage, argued the learned counsel. It is submitted that
the Family Court has wrongly relied on the decision of Andhra Pradesh
High Court in Smt. Rayala M. Bhuvaneswari V. Nagaphanender
Rayala, AIR 2008 AP 98, as the same is distinguishable on facts. In
that case it was telephonic conversation of wife with some other person,
which was being recorded by the husband and produced before Court to
substantiate his case, which was held to be illegal. The Andhra Pradesh
High Court held the said recording to be illegal and further held that it
amounted to infringement of wife's right to privacy. In the present case,
conversation between husband and wife was recorded by the husband
himself, therefore, there should be no impediment in accepting the
evidence as the right to privacy is not violated. Had the conversation of
the respondent-wife with a third person been recorded by the petitionerhusband,
then possibly, ratio of aforesaid judgment could have been
applied.
Per contra, Mr. Vijayant Nirwan, learned counsel for
Respondent No. 2-wife has opposed the writ petition and argued that
despite undertaking of the petitioner before this Court in earlier writ
petition that he would conclude his evidence within one month from the
next date before the Family Court, the petitioner has been prolonging the
proceedings by filing frivolous applications, one after another. Learned
Family Court was perfectly justified in keeping all such applications
pending for deciding with the divorce petition. It is denied that
application dated 15.06.2013 was filed by the petitioner even before the
statement of Respondent. In fact, the said application was filed soon
after her cross-examination. The petitioner has wrongly stated that she
during course of her cross-examination on 21.06.2013, stated that it is
not her voice in Exhibit -1, DVD. In fact, she submitted in cross
examination that she has neither seen nor heard Exhibit-1 DVD.
Allegation of the petitioner that Presiding Officer of the Family Court did
not allow the petitioner to ask any question regarding the transcripts of
the DVD is nothing but an attempt to fill up lacuna by blaming the
Presiding Officer. Learned counsel referring to Section 10 of the Family
Court Act has argued that provisions of CPC have been held applicable
to the proceedings before the Family Court. Reliance in this connection
is placed upon the judgment of Allahabad High Court in Munna Lal and
etc. Vs. State of U.P. & Another, AIR 1991 Allahabad 189. At the
same time, however, it is argued that Section 14 of the Family Court Act
has applied provisions of Indian Evidence Act, 1872 to the proceedings
before the Family Court. In this connection, reliance is placed upon
decision of Gauhati High Court(Agartala Bench) in Tania Kar Vs. Avijit
Roy, (2011) 2 GauLT 849 and it is argued that Act has not dispensed
with requirement of adducing evidence by examining witnesses in
support of claim or counter claim. Exhibit-1, original cassette with DVD,
was alleged to contain conversation between the petitioner and the
respondent and Exhibit1A was transcript of Exhibit-1. Exhibit-4 was
audio CD containing alleged taped telephonic conversation of the
respondent with one Abhishek. Exhibit-3 is the transcript of Exhibit-4
and Exhibit 5 was Audio CD containing alleged taped telephonic
conversation of the respondent with her parents. Exhibit-5A is the
transcript of Exhibit-5. Recording all these conversations without
consent or knowledge of the respondent-wife clearly violated the
respondent's right to privacy.
It is argued that Judgment of Andhra Pradesh High Court in
Smt. Rayala M. Bhuvaneswari(supra), which has been relied by the
Family Court, is squarely applicable to the present case. Learned
counsel argued that the petitioner has admitted in his cross examination
that he has not produced any proof of FSL so as to rule out possibility of
any editing or tampering DVD, Audio CDs. The petitioner has also
admitted that he submitted copies of the alleged DVD, Audio CDs before
the Court. That would mean that he has not submitted originals. Except
marking of the DVD, Audio CDs and their transcripts as Exhibits, no
evidence has been adduced by the petitioner to prove their contents and
no evidence as per the requirement of Sections 65, 65-A, 65-B of the Act
of 1872 has been adduced by the petitioner. The petitioner neither
adduced any evidence in his examination-in-chief regarding the contents
of the DVD, CDs or their transcripts, nor did he ask any questions
regarding contents of the transcripts and CDs from the respondent.
Learned Counsel relying on the judgment of Supreme Court in Sait
Tarajee Khimchand and Others Vs. Yelamarti Satyam and Others,
AIR 1971 SC 1865 has argued that mere marking of a document as an
exhibit does not dispense with its proof. Reliance has also been placed
upon the judgment of the Supreme Court in U. Sree Vs. U. Srinivas,
AIR 2013 SC 415 wherein it was held that secondary evidence must be
authenticated by foundational evidence that alleged copy is in fact a true
copy of original. Learned counsel for the respondent has also relied
upon the judgment of Delhi High Court in Sudir Engineering Company
Vs. Nitco Roadways Ltd., 1995 IIAD Delhi 189 to the effect that mere
admission of document in evidence does not amount to its proof. Unless
the original DVD and Audio CDs are produced, their copies cannot be
taken as admissible on record as secondary evidence.
Mr. Vijayant Nirwan, learned counsel for the respondent has
argued that the petitioner moved two applications on 15.06.2013. First
application was to place on record original cassette from which DVD,
which was marked as Exhibit-1, camcorder with cassette was
formulated, charger of camcorder and the bag in which camcorder,
charger and cassette were kept. The said application was dismissed by
a speaking order by the Family Court. Said order was never challenged
by the petitioner. It was only during the arguments, that the petitioner
challenged the aforesaid order by way of filing S.B. Civil Writ Petition No.
3990/2014. Subsequently, the petitioner withdrew that writ petition which
was accordingly dismissed vide order dated 02.07.2014, which means
that original DVD is not on record. In fact, the Family Court in its order at
page 58 of the paper book has categorically recorded that petitioner
neither requested for playing CD/DVD during evidence, nor by playing
the same himself, which could prove that it is conversation of the
petitioner with the respondent-wife. In fact, it is further observed by the
Family Court that the cross-examination of the respondent took place on
the basis of transcripts and thereafter application for sending the same
to Forensic Science Laboratory was submitted. No other evidence with
regard to voice of the respondent was produced or proved. Now
evidence of both the parties is over. Learned counsel for the respondent
has heavily relied on the judgment of Andhra Pradesh High Court in
Smt. Rayala M. Bhuvaneshwari(supra) wherein it was held that the act
of taping itself by the husband of the conversation of his wife with others
was illegal and it infringed the right of privacy of the wife. Therefore, the
taps, even if true, cannot be taken as admissible in evidence. Learned
counsel has further relied upon the judgment of the Supreme Court in
Tukaram S. Dighole V. Manikrao Shivaji Kokate, AIR 2010 SC 965(1)
and argued that the Supreme Court in that case held that the standard of
proof about its authenticity and accuracy has to be more stringent, as
compared to other documentary evidence.
Regarding right to privacy as fundamental right being
integral part of Article 21 of the Constitution of India, reliance has been
placed upon the decision of the Supreme Court in Ramlila Maidan
Indicent V. Home Secretary, Union of India & Others, (2012) 5 SCC
Page 1. Learned counsel for the respondent has also relied upon the
judgment of Punjab and Haryana High Court in Deepinder Singh Mann
Vs. Ranjit Kaur(CR No. 1734 of 2014(O&M) decided on 07.03.2014)
wherein it was held that in a private matter between the couples, the
Court should not permit dirty linen to be washed openly in Court in the
name of evidence. It is argued that when the evidence of the parties is
over, number of applications filed by the petitioner was nothing but an
attempt to fill up lacunae in the evidence, which cannot be permitted.
Reliance in this connection has been placed upon the decisions of the
Supreme Court in K.K. Velusamy V. N. Palanisamy, 2011 AIR SCW
2296 and Vadiraj Naggapa Vernekar (deceased by L.Rs.) v. Sharad
Chand Prabhakar Gogate, AIR 2009 SC 1604. Lastly, reliance has
been placed on judgment of the Supreme Court in Sadhana Lodh V.
National Insurance Co. Ltd. and Another, AIR 2003 SC 1561(1)
wherein it has been held that the supervisory jurisdiction conferred on
the High Courts under Article 227 of the Constitution of India is confined
only to see whether an inferior Court or Tribunal has proceeded within its
parameters and not to correct an error apparent on the face of the
record, much less of an error of law. High Court does not act as an
appellate court or the Tribunal. This very view was reiterated by the
Apex Court in Surya Dev Rai V. Ram Chander Rai and others, AIR
2003 SC 3044(1) and Shree Gopal Vs. Additional Civil Judge(JD)
NO. 8, Jodhpur, (2005) 0 Supreme(Raj) 22664. It is, therefore,
submitted that there is no merit in this writ petition and the same be
dismissed.
I have given my thoughtful consideration to the rival
submissions and perused the material on record.
Undeniably, the petitioner-husband taped conversation with
his wife, when their marriage was subsisting. Such conversation was
recorded without knowledge of the wife, let alone with her consent. It is,
therefore, that the learned Family Court, while relying upon the judgment
of Smt. Rayla M. Bhuvaneswari(supra), dismissed the applications
filed by the petitioner. Andhra Pradesh High Court in that case held that
Act of recording conversation without knowledge of wife amounts to
infringement of her right to privacy and would be illegal. Such tapped
conversation, even if true, cannot be admissible in evidence and wife
cannot be forced to undergo voice test and expert cannot be asked to
compare portion denied by her with her admitted voice. The petitioner
has sought to distinguish the aforesaid judgment on the premise that the
conversation which was recorded by the husband in the case of Smt.
Rayla M. Bhuvaneswari(supra), was of his wife with third party and not
with the husband and in this case, conversation has taken place
between the husband and wife. It is argued that since the petitioner is
raising allegation of infidelity, there is no way he could prove this fact
except by whatever evidence is available with him, including the tap
recorded conversation. Nearest judgment cited on the point is that of
Bombay High Court in Mrs. Havovi Kersi Sethna Vs. Mr. Kersi Gustad
Sethna, 2011(2) ALLMR 577, wherein parties were wife and husband
and the wife was under cross-examination. The respondent-husband
relied upon certain handwritten diaries of the wife as well as Compact
Disc(CD) on which conversation between the wife and the husband was
recorded by the husband on certain dates. The husband also produced
transcript of the said conversation. The wife admitted handwriting in her
diaries, but contested the claim of the husband to rely upon the tapped
conversation, on the premise that original compact disc was not filed and
instrument, on which such conversation was recorded, was not
produced. The conversation could be recorded on a tape recorder,
audio cassette, MP-3 Player, dictaphone, computer or even on mobile
phone. By what mode it was recorded has not been produced. It was
held by the Bombay High Court that if contents of CD are disputed,
husband/defendant will have to prove the same. It was further held that
the defendant-wife did not make statement of admission specifically
before the Court with regard to tapped conversation made available on
CD. In those circumstances, her cross-examination could not be
delayed and would have to be undertaken. It would for her to admit or
deny partly or fully the aforesaid averments. Bombay High Court relied
on the judgment of the Supreme Court in R.M. Malkani Vs. State of
Maharashtra, AIR 1973 SC 157 wherein it was held that CD is
considered as documentary evidence.
Andhra Pradesh High Court in the case of Smt. Rayla M.
Bhuvaneswari(supra), also relied upon its earlier judgment in Padala
Kaniki Reddy Vs. Padala Sridevi, 2006(5) ALT 762. In Padala Kaniki
Reddy(supra), petition was filed by the wife for dissolution of marriage
on the ground of husband being of unsound mind and sexually impotent
and also on certain other allegations, which were denied by the
husband, who alleged that the wife had some problem with her uterus
even before the marriage and for that reason, she cannot conceive and
beget children. She was treated in England and finally various attempts
to use the sperm of respondent proved futile in view of the condition of
her uterus. In that case, application was fled by the husband to direct
the wife to undergo medical examination by a qualified lady Gynecologist
of Government Institutional Hospital. The application was resisted by
the wife on the premise that it would defeat her right to privacy and
personal liberty by reiterating the allegations aforesaid and making
counter allegations and also on the ground that the virginity test cannot
constitute the sole basis to prove consummation of marriage. The
Andhra Pradesh High Court, relying upon various judgments of the
Supreme Court and High Courts, held that it would be just and proper to15
S.B. CIVIL WRIT PETITION NO. 14726/2013
direct the wife to submit to medical examination for the purpose prayed
for, holding that it would not amount to infringement of her right to
privacy and personal liberty.
Apparently, earlier judgment of Andhra Pradesh Court in
Neera Agarwal Vs. Mahender Kumar Agarwal, 2009(5) ALT 518,
wherein somewhat similar dispute was considered, was not noticed by
that High Court in later case of Smt. Rayla M. Bhuvaneswari(supra).
In Neera Agarwal(supra), the petitioner-wife filed application under
Section 151 CPC praying to send letter to a handwriting expert, audio
cassettes and VCDs for verification. The Trial Court dismissed that
application holding that there was no necessity for verification. The
High Court had opportunity to appreciate these facts and held that act of
tapping itself by husband of conversation of his wife with others was
illegal and it infringed right of privacy of wife and therefore, the tapes,
even if true, could not be admissible in evidence. The wife could not be
forced to undergo voice test.
It is not doubt true that in a given situation, when there is
conflict between fundamental rights of two parties, right of one party has
to give way to the other, as has been held by the Hon'ble Supreme Court
in Mr. 'X' Vs. Hospital 'Z', (1998) 8 SCC 296. In that case, appellant's
blood was to be transfused to another and, therefore, sample thereof
was tested at the respondents' hospital and he was found to be HIV(+).
On account of disclosure of this fact, the appellant's proposed marriage
to one A, which had been accepted, was called off. Moreover, he was
severally criticised and was also ostracised by the community. The
appellant approached the National Consumer Disputes Redressal
Commission for damages against the respondents on the ground that16
S.B. CIVIL WRIT PETITION NO. 14726/2013
the information required, under medical ethics, to be kept secret, was
disclosed illegally and that, therefore, the respondents were liable to pay
damages to the appellant. The Commission dismissed the petition on
the ground that the appellant could seek his remedy in the civil court.
However, the Supreme Court held that in the doctor-patient relationship,
the most important aspect is the doctor's duty of maintaining secrecy. A
doctor cannot disclose to a person any information regarding his patient,
which he has gathered in the course of treatment, nor can the doctor
disclose to anyone else the mode of treatment of the advice given by
him to the patient. But that rule is not absolute. It is subject to certain
exceptions in the sense that a person may have a right, but there may
not be a correlative duty and the instant case falls within the exceptions.
“Right” is an interest recognised and protected by moral or legal rules
violation of which would be a legal wrong. Respect for such interest
would be a legal duty. In order, therefore, that an interest becomes the
subject of a legal right, it has to have not merely legal protection, but
also legal recognition. The elements of a “legal right” are that the “right”
is vested in a person and is available against a person, who is under a
corresponding obligation and duty to respect that right and has to act or
forbear from acting in a manner so as to prevent the violation of the right.
Right to privacy has been culled out of the provisions of Article 21 and
other provisions of the Constitution relating to the Fundamental Rights
read with the Directives Principles of State Policy. In such a situation,
public disclosure of even true private facts may amount to an invasion of
the right of privacy, which may sometimes lead to the clash of one
person's “right to be let alone” with another person's “right to be
informed”. The right, however, is not absolute and may be lawfully17
S.B. CIVIL WRIT PETITION NO. 14726/2013
restricted for the prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others. Having regard to
the fact that the appellant was found to be HIV(+), its disclosure would
not be violative of either the rule of confidentiality or the appellant's right
of privacy as A, whom the appellant was likely to marry was saved in
time by the disclosure, otherwise, she too would have infected with the
dreadful disease if the marriage had taken place and consummated.
This very view was reiterated by the Supreme Court in
Sharda(supra) wherein it was held that if there were a conflict between
fundamental rights of two parties, that right which advances public
morality, would prevail. Aforesaid judgment arose out of divorce
proceedings and the core question was that whether a party to a divorce
proceedings can be compelled to a medical examination. High Court
dismissed the revision petition filed by the appellant questioning the
order passed by the trial court. It was held that medical examination of a
party can be ordered by the Court either suo motu or instructions to a
party. Such order would not violate and offend right to privacy and
Article 21 of the Constitution. However, such power has to be exercised
if the applicant has a strong prima facie case and there is sufficient
material before the Court.
The Supreme Court in People's Union for Civil Liberties
(PUCL) Vs. Union of India & Another, (1997) 1 SCC 301 held that right
to transmit telephonic message or hold telephonic conversation in
privacy forms part of right to privacy protected by Article 21 as well as
Article 17 of International Convenant on Civil and Political Rights. It is
also covered by freedom of speech and expression under Article (19)(1)
(a). Telephone tapping by Government under Section 5(2) of Telegraph18
S.B. CIVIL WRIT PETITION NO. 14726/2013
Act amounts to infraction of these Fundamental Rights, hence it can be
restored to only in accordance with procedure established by law, which
must be just, fair and reasonable and should fall within the grounds of
reasonable restriction permissible under Article 19(2) of the Constitution.
Neither Bombay High Court in the case of Mrs. Havovi
Kersi Sethan(supra), nor even the Andhra Pradesh High in Smt. Rayla
M. Bhuvaneswari(supra), or Neera Agarwal(supra) noticed judgment
of the Supreme Court on the subject in the case of M.C. Verghese Vs.
T.J. Ponnan and another, AIR 1970 SC 1876 and analysed the effect of
Section 122 of the Indian Evidence Act on admissibility of such recorded
conversation. In that case, Rathi, daugher of M.C. Verghese, was
married to T.J. Ponnan. Ponnan wrote certain letters to Rathi from
Bombay, who was then residing with her parents at Trivandrum, which, it
was claimed, contained defamatory imputations concerning Verghese.
Verghese then filed a complaint in the court of the District Magistrate,
Trivandrum, against Ponnan charging him with offence of defamation.
Ponnan submitted an application raising two preliminary contentions, (1)
that the letters which were inadmissible in evidence as they were barred
by law or expressly prohibited by law from disclosure; and (2) that
uttering of a libel by a husband to his wife was not “publication” under
the law of India and hence cannot support a charge for defamation and
prayed for an order of discharge and applied that he may be discharged.
District Magistrate held that a communication by a husband to his wife or
by a wife to her husband, of a matter defamatory of another person,
does not amount in law to publication, since the husband and wife are
one in the eye of law. Relying upon the judgment in Wennhak V.
Morgan (1888) 20 QBD 635 it was held that communication was19
S.B. CIVIL WRIT PETITION NO. 14726/2013
privileged and no evidence could be given in court in relation to that
communication. District Magistrate accordingly ordered that Ponnan be
discharged. In the revision petition filed by M.C. Verghese before the
Court of Sessions, the order was set aside. The case was then carried
to High Court of Kerala, which set aside the order of Court of Sessions
and restored that of District Magistrate. This is how the matter reached
the Supreme Court on challenge being made to the judgment of the High
Court, which has dealt with the effect of application of Section 122 of
Indian Evidence Act relating to privileged communication between
husband and wife. By the time matter reached the Supreme Court, wife
Rathi had obtained decree of nullity of marriage against husband
Ponnan on the ground of his impotency. Argument was raised that now
when the wife had obtained decree of nullity and marriage not being
subsisting, the bar existing during the subsistence of marriage cannot be
operated to render the wife as incompetent witness. Rejecting that
ground, it was held by the Supreme Court that:
“14. A prima facie case was set up in the complaint by
Verghese. That complaint has not been tried and we
do not see how, without recording any evidence, the
learned District Magistrate could pass any order
discharging Ponnan. Section 122 of the Evidence Act
only prevents disclosure in giving evidence in court of
the communication made by the husband to the wife.
If Rathi appears in the witness box to give evidence
about the communications made to her (by-Ed.)
husband, prima facie the communications may not be
permitted to be deposed to or disclosed unless
Ponnan consents. That does not, however, mean that
no other evidence which is not barred under section
122 of the Evidence Act or other provisions of the Act
can be given.
15. In a recent judgment of the House of Lords
Rumping v. Director of Public Prosecutions, (1962) 3
All ER 256 Rumping the mate of a Dutch ship was
tried for murder committed on board the ship. Part of
the evidence for the prosecution admitted at the trial
consisted of a letter that Rumping had written to his
wife in Holland which amounted to a confession.20
S.B. CIVIL WRIT PETITION NO. 14726/2013
Rumping had written the letter on the day of the
killing, and had handed the letter in a closed envelope
to a member of the crew requesting him to post it as
soon as the ship arrived at the port outside England.
After the appellant was arrested, the member of the
crew handed the envelope to the captain of the ship
who handed it over to the police. The member of the
crew, the captain and the translator of the letter gave
evidence at the trial, but the wife was not called as
witness. It was held that the letter was admissible in
evidence. Lord Reid, Lord Morris of Borth-Y-Gest,
Lord Hodson and Lord Pearce were of the view
that at common law there had never been a separate
principle or rule that communications between a
husband and wife during marriage were inadmissible
in evidence on the ground of public policy. Accordingly
except where the spouse to whom the communication
is made is a witness and claims privilege from
disclosure under the Criminal Evidence Act. 1898, (of
which the terms are similar to S. 122 of the Indian
Evidence Act though not identical), evidence as to
communications between husband and wife during
marriage is admissible in criminal proceedings.
16. The question whether the complainant in this case
is an agent of the wife because he has received the
letters from the wife and may be permitted to give
evidence is a matter on which no opinion at this stage
can be expressed. The complainant claims that he
has been defamed by the writing of the letters. The
letters are in his possession and are available for
being tendered in evidence. We see no reason why
inquiry into that complaint should, on the preliminary
contentions raised, be prohibited. If the complainant
seeks to support his case only upon the evidence of
the wife of the accused, he may be met with the bar of
section 122 of the Indian Evidence Act. Whether he
will be able to prove the letters in any other manner is
a matter which must be left to be determined at the
trial and cannot be made the subject-matter of an
enquiry at this stage.
17. One more question which was raised by counsel
for the appellant may be briefly referred to. It was
urged that since the matter reached this Court,
Rathi has obtained a decree for nullity of marriage
against Ponnan on the ground of his mpotency, and
whatever bar existed during the subsistence of the
marriage cannot now operate to render Rathi an
incompetent witness. But the argument is plainly
contrary to the terms of section 122. If the marriage
was subsisting at the time when the communications
were made, the bar prescribed by S. 122 will operate.
In Moss v. Moss V. Moss, (1963) 2 All ER 829 it was
held that in criminal cases, subject to certain common
law and statutory exceptions, a spouse is
incompetent to give evidence against the other, and
that incompetence continues after a decree
absolute for divorce or a decree of nullity(where the
marriage annulled was merely voidable) in respect of
matters arising during covertime(coverture-Ed.).
18. Counsel for the appellant however urged that the
rule enunciated in Moss's case, (1963) 2 All ER 829
has no application in India, because under Sections
18 & 19 of the Divorce Act no distinction is made
between marriage void and voidable. By S. 18 a
husband or a wife may present a petition for nullity of
marriage to the appropriate court and the court has
under section 19 power to make the decree on the
following grounds:
"(1) that the respondent was impotent at the time of
the marriage 'and at the time of the institution of the
suit;
(2) that the parties are within the prohibited degrees
of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of
the marriage;
(4) that the former husband or wife or either party
was living at the time of the marriage, and the
marriage with such former husband or wife was then
in force.
Nothing in this section shall affect the
jurisdiction of the High Court to make decrees of
nullity of marriage on the ground that the consent of
either party was obtained by force or fraud."
Marriage with the respondent who was impotent
at the time of the marriage or at the time of the
institution of the suit is not ab initio void: it is voidable.
As stated in Latey on Divorce, 14th Edn., at p. 194,
Art. 353:
"Where impotence is proved the ceremony of
marriage is void only on the decree absolute of nullity,
but then it is void ab initio 'to all intents and purposes'.
Such a marriage “is valid for all purposes, unless a
decree of nullity is pronounced during the life-time of
the parties."
When the letters were written by Ponnan to
Rathi, they were husband and wife. The bar to the
admissibility in evidence of communications made
during marriage attaches at the time when the
communication is made, and its admissibility will be
adjudged in the light of the status at the date and not
the status at the date when evidence is sought to be
given in court.”
It would be apposite at this stage to note Section 122 of the
Indian Evidence Act, 1872 which is extracted hereunder:-
“122. Communication during marriage.-No person
who is or has been married, shall be compelled to
disclose any communication made to him during
marriage by any person to whom he is or has been
married; nor shall he be permitted to disclose any
such communication, unless the person, who made it,
or his representative in interest, consents, except in
suits between married persons, or proceedings in
which one married person is prosecuted for any crime
against the other.”
Aforesaid provision consists of two parts, firstly that married
person shall not be compelled to disclose any communication made to
him during marriage by his spouse and secondly, that person shall be
permitted to disclose any such communication, unless the person who
made it or his representative in interest, gives consent thereto. Privilege
about such conversation is not available and cannot be claimed “in suits
between married persons”, in other words, in the suit filed by husband
against wife and vice-versa. In that case, the spouse can be “compelled
to disclose any conversation made to him during marriage” by the other
spouse. Such is not the complexion of evidence in the present case.
Here although it may be that certain conversation was made by the wife
with the husband, but what we are concerned with are the means
adopted by the husband to achieve that end. If means are not
permissible within the framework of the Constitution of India, by tape
recording conversation by husband with his wife, without her knowledge
and consent, evidence sought to be proved by producing such recorded
conversation would be wholly inadmissible in evidence. This is because
its recording has resulted in violating the wife's “right of privacy”, a facet
of personal liberty, guaranteed to every citizen vide Article 21 of the
Constitution of India. In such a situation, same parameters of law, as
laid down by their Lordships of the Supreme Court against state
agencies, would also apply to husband guilty of recording conversation
held in confidence between him and his wife, obtained by
prompting/inducing/provoking or even instigating her, to make even such
statements, which may or may not be fully true or may even be wholly
untrue and yet go against her. Alleged telephonic conversation, even if
true, would thus not be admissible/receivable in evidence and
respondent wife cannot be otherwise required to admit or deny whether
the DVDs in question contained her voice and also, she cannot be
forced to provide her voice sample and experts cannot be asked to
compare her voice with the voice in the subject DVDs.
Admittedly, in the present case when the conversation of
wife was recorded by the petitioner, the marriage was subsisting and
therefore, recording of conversation of the wife without her knowledge
invaded her 'right to privacy' as already held by the Supreme Court in
R.M. Malkani Vs. State of Maharashtra, AIR 1973 SC 157, in para 30
thereof it was held:
"30. There is no scope for holding that the appellant
was made to incriminate himself. At the time of the
conversation there was no case against the appellant.
He was not compelled to speak or confess. Article 21
was invoked by submitting that the privacy of the
appellant's conversation was invaded. Article 21
contemplates procedure established by law with
regard to deprivation of life or personal liberty. The
telephonic conversation of an innocent citizen will be
protected by Courts against wrongful or high handed
interference by tapping the conversation. The protection
is not for the guilty citizen against the efforts of the
police to vindicate the law and prevent corruption of
public servants. It must not be understood that the
Courts will tolerate safeguards for the protection of the
citizen to be imperiled by permitting the police to
proceed by unlawful or irregular methods. In the
present case there is no unlawful or irregular method in
obtaining the tape recording of the conversation."
The Supreme Court in People's Union for Civil Liberties
(PUCL)(Supra) in Para 18 held as under:
"18. The right to privacy-by itself-has not been identified
under the Constitution. As a concept it may be too
broad and moralistic to define it judicially. Whether right
to privacy can be claimed or has been infringed in a
given case would depend on the facts of the said case.
But the right to hold a telephone conversation in the
privacy of one's home or office without interference
can certainly be claimed as "right to privacy".
Conversations on the telephone are often of an intimate
and confidential character. Telephone conversation is a
part of modern man's life. It is considered so important
that more and more people are carrying mobile
telephone instruments in their pockets. Telephone
conversation is an important facet of a man's private
life. Right to privacy would certainly include telephone conversation
in the privacy of one's home or office.
Telephone-tapping would, thus, infract Article 21 of the
Constitution of India unless it is permitted under the
procedure established by law."
The Supreme Court in Mr. 'X'(supra) in Para 27 and 28 held
as under:
"27. Right of Privacy may, apart from contract, also
arise out of a particular specific relationship which may
be commercial, matrimonial, or even political. As
already discussed above, doctor-patient relationship,
though basically commercial, is, professionally, a matter
of confidence and, therefore, doctors are morally and
ethically bound to maintain confidentiality. In such a
situation, public disclosure of even true private facts
may amount to an invasion of the right of privacy which
may sometimes lead to the clash of one person's "right
to be let alone" with another person's right to be
informed.
28. Disclosure of even true private facts has the
tendency to disturb a person's tranquility. It may
generate many complexes in him and may even
lead to psychological problems. He may,
thereafter, have a disturbed life all through. In the
face of these potentialities, and as already held
by this Court in its various decisions referred to
above, the Right of Privacy is an essential
component of right to life envisaged by Article 21.
The 'right, however, is not absolute and may be
lawfully restricted for the prevention of crime,
disorder or protection of health or morals or
protection of rights and freedom of others."
Aspect about admissibility of evidence with reference to
provisions of Indian Evidence Act, 1872 has indeed been diluted by
Section 14 of the Family Court Act. The question, which still arises in the
present case, is whether conversation tape recorded by the husband
without wife's consent or without her knowledge, can be received in
evidence and be made use of against her? That question has to be
answered in an affirmative 'no', as recording of such conversation had
breached her “right to privacy”, one of the facets of her 'right to liberty'
enshrined under Article 21 of the Constitution of India. The exception to
privileged communication between husband and wife carved out in
Section 122 of the Indian Evidence Act, which enables one spouse to
compel another to disclose any communication made to him/her during
marriage by him/her, may be available to such spouse in variety of other
situations, but if such communication is a tape recorded conversation,
without the knowledge of the other spouse, it cannot be, admissible in
evidence or otherwise received in evidence. The argument that this
would defeat right of fair trial of the petitioner-husband, proceed on the
fallacious assumption of sanctimony of the method used in such
recording and in that process, ignores the right of fair trial of the
respondent-wife. In a case like present one, husband cannot be, in the
name of producing evidence, allowed to wash dirty linen openly in the
Court proceedings so as to malign the wife by producing clandestine
recording of their conversation.
In view of above, this Court is inclined to concur with the
view taken by Andhra Pradesh High Court in Smt. Rayala M.
Bhuvaneswari(supra) that recorded conversation between the
petitioner and the respondent, even if true, cannot be admissible in
evidence and that the respondent-wife cannot be forced to undergo
voice test and expert cannot be asked to compare CDs, which
conversation has been denied by her.
In view of above, writ petition is dismissed and impugned
order is upheld. However, Family Court is directed to expedite the
decision of the case, but not later than a period of two months from the
date copy of this order is produced before it.
Stay application also stands dismissed.
 (MOHAMMAD RAFIQ),J.

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