Thursday, 14 July 2016

Whether Tape recorded conversation of wife without her knowledge is admissible in evidence?

 On considering the above submissions and the
impugned order, I find that the sole question that arises in
consideration is whether the tapes produced by the husband
are admissible evidence? Admittedly, the conversation was
recorded without the knowledge of the wife, behind her
back, and is definitely an infringement of her right to
privacy. Besides, it is violative of article 11 & 21 of the
Constitution of India and has rightly pointed out by the
Counsel for the petitioner / wife, that interception in the7
recording conversation is permitted only under the
circumstances. Besides, there is also penalty under section
72 of the Information Technology Act and it could not be
used as instrument to create evidence of such nature. The
cases cited by the Counsel for the respondent are not
applicable in the present context and are of no use to the
respondent.
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
BEFORE S. B: HON’BLE MRS. JUSTICE S.R. WAGHMARE
 Writ Petition No. 7479 & 7484/20 1 4
Anurima @ Abha Mehta
vs.
Sunil Mehta S/o Chandmal

(Passed on 21/05/2015)
Per Mrs. S.R. Waghmare, J.
Citation:AIR 2016 MP112

1. These two petitions are being dealt together since they
are cross petitions filed by the Petitioner / Wife, Anurima @
Abha Meht and Sunil Mehta being aggrieved by order
dated 10/07/2014 passed in HMA Case 495/10 & HMA
Case 20/11 passed by the First Additional Chief Judge,
Family Court, Indore.
2. Briefly stated the facts of the case are that the
petitioner had filed an application under section 13 of the
Hindu Marriage Act, 1955 seeking divorce from the
respondent, which is pending consideration before the Trial
Court, whereas, per contra, the husband has filed an
application for restitution of conjugal rights against the wife.
And in both the cases the husband had put forth an2
application dated 17/11/2011 under section 65(b) of the
evidence Act to place on record the CD which contains
conversation with one Mr. Vijay Agrawal and the wife. She
filed reply (dated 13/02/2013) to the application dated
17/11/2011 and opposed the production of the CD on the
ground that it amounts to infringement of her rights to
privacy. The Trial Court vide order dated 12/08/2013
considered the application of the husband and dismissed the
same holding that recording of conversation of the wife with
any one; is illegal and in violation of right to privacy. This
order dated 12/08/2013 was challenged by the respondent by
filing writ petitions before this Hon’ble Court, which were
registered as W.P. Nos. 10897/13 & 10899/13. Whereby the
petitions were disposed off summarily, without notice to the
wife, holding that since the application preferred by the
husband was not in accordance with section 65(b) of the
Evidence Act; if proper application is moved it would be
considered by the Trial Court. The order passed by this
Court is dated 19/09/2013, annexed as annexure P4 to this
petition. Again the application was moved by the husband
and was opposed by the wife, however, vide the impugned
order, Trial Court has held the application of the husband to
place the CD on record should be considered as evidence,
hence the present petitions by the wife. It is vehemently
urged by the Counsel for the respondent that despite
directions from this Court in W.P. Nos.10899/13 &3
10897/13 that the applications filed by the husband are
allowed.
3. Counsel for the petitioner also vehemently urged the
fact that any conversation between the wife and the other
person amounts to the infringement on the right of privacy of
the wife and was in violation of Article 21 of the
Constitution of India and that right to privacy is a part of life
and personal liberty enshrining under Article 19 and 21 of
the Constitution of India and was is almost similar to taping
of telephones. Counsel relied on Rayala M. Bhuvaneswari
.vs. Nagaphanendra Rayala II(2008) DMC 327 stating
that tap recorded conversation was not permitted as evidence
for divorce petition since it was not admissible evidence and
besides Right to privacy was infringed. In the similar case
the husband was tapping the conversation of wife and sought
permission to produce the hard disc in Court and the Court
had held that the tapes even if true cannot be admissible in
evidence since thereafter to make the wife to undergo voice
test and then ask expert to compare portions denied by her
with her admitted voice could not be permitted. Similarly,
reliance has been placed by the Counsel on People’s Union
for Civil Liberties vs. Union of India [AIR 1997 Supreme
Court 568] whereby, the right to privacy is part of right to
life and right to privacy would include telephone
conversation in the privacy of home or office and telephone
tapping would also violate Article 19(1)(a) and 19(2) i.e.
freedom of speech and expression.4
4. Counsel for the petitioner relied on the Gazette
notification by the Indian Government, New Delhi dated
16/02/1999 whereby, rule 419(A) (i) was inserted after rule
419 in the Indian Telegraph rules 1951. Whereby,
directions, where interception of any message or class of
message required, order to be issued from the Secretary to
the Government of India and otherwise, interception was not
permitted in the Indian Telegraph rules, whereas section 72
of the Information Technology Act of 2000, forbids access
to any electronic record, book, register, correspondence etc.,
without the permission of the person concerned and the
offence is punishable with imprisonment for a term which
may extend to two years, or with fine which may extend to
one lakh rupees, or with both. Similarly, Counsel submitted
that such an approach in the electronic medium was moved
only in the interest of public safety and the Central
Government or State Government, may, if it is satisfied that
it is necessary or expedient to do so has to record the reasons
in writing and only then pass the order granting such
permission. Counsel submitted that the petitioner/wife has
one adult son and the husband and wife have been living
separately for seven years now and she is also running a
school successfully. Counsel prayed that the impugned
order be set aside.
5. Per Contra, Counsel for the respondent/State has
vehemently opposed the submission of the Counsel for the
petitioner and submitted that the respondent / husband was5
left with no other alternative, but to produce the tape for
evidence since he has filed the application for restitution of
conjugal rights against the wife and the petitioner has
opposed the same for no valid or cogent reasons and it only
during this period that he realised that she was having an
affair with one Mr.Vijay Agrawal. Counsel placed reliance
on Mr.’X’ .vs. Hospital ‘Z’, Supreme Court Cases on 21st
September 1998,[Civil Appeal No.4641/1998], and
submitted that in the said case, especially the unsoundness of
mind of the respondent under the conditions was incurable
and the medical testimony that required the respondent to
undergo certain medical tests was permitted by the Court and
in the present case also to protect the interest of the parties,
the Court would pass appropriate orders regarding voice
verification. Counsel also placed reliance on R.M. Malkani
.vs. State of Maharashtra on 22nd September 1972,
Equivalent citations: [AIR 157, 1973 & SCR(2) 417] and
submitted that the conversation between appellant and the
witness was tape recorded and the Court considered the
question whether it is an admissible evidence under the
Telegraph Act and the Court held that when there was no
element of coercion or compulsion in attaching the tape
recorder to the telephone, the High Court’s observations of
the telephone call put by Dr. M, to the appellant was tapped
by the Police Officer, then holding that there was violation of
section 25 of the Indian Telegraph Act is erroneous and the
Court held that Tape recorded conversation is admissible,6
provided first the conversation is relevant to the matter in
issue, secondly, there is identification of the voice and
thirdly, the accuracy of the tape-recorded conversation is
proved by eliminating the possibility of erasing the taperecorder.
The tape recorded conversation is therefore, a
relevant fact and permissible in evidence. Lastly, Counsel
relied on Sharda .vs. Dharmpal [2003(2) CTC 760, AIR
2003 SC 3450] for grant of divorce, petitioner must establish
unsoundness of mind of the respondent is incurable. In the
similar case, Court had suo moto directed recording of
evidence to arrive at conclusion whether the person is
mentally ill and can defend himself and there it was held that
it was not violating the Article 21 of the Constitution of
India. Counsel vehemently urged the fact that in the present
case also the husband’s marriage was at stake and yet he was
willing to take back his wife, but he required to prove to the
Court that one Mr. Vijay Agrawal was causing disharmony
in their life.
6. On considering the above submissions and the
impugned order, I find that the sole question that arises in
consideration is whether the tapes produced by the husband
are admissible evidence? Admittedly, the conversation was
recorded without the knowledge of the wife, behind her
back, and is definitely an infringement of her right to
privacy. Besides, it is violative of article 11 & 21 of the
Constitution of India and has rightly pointed out by the
Counsel for the petitioner / wife, that interception in the7
recording conversation is permitted only under the
circumstances. Besides, there is also penalty under section
72 of the Information Technology Act and it could not be
used as instrument to create evidence of such nature. The
cases cited by the Counsel for the respondent are not
applicable in the present context and are of no use to the
respondent.
8. I find that to say anything beyond the aforesaid would
affect the merits of the case and hence it is held that
impugned orders dated 10/07/2014 are contrary to the
provisions of law and are hereby set aside. The Trial Court,
however, may continue in accordance with the provisions of
law. The tapes, however, cannot be admitted in evidence but
it may be kept on record.
9. With the aforesaid observations and directions, both the
petitions are hereby allowed to the extent herein above
indicated.
No Costs.
C.c. as per rules.
(Mrs. S.R. Waghmare)
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