Wednesday, 1 July 2020

Right of a husband to get Fair trial Vs Right of privacy of wife

1)  In the divorce proceedings, the husband filed a Compact Disc (CD) purporting to contain an audio-video
recording of the wife supposedly speaking with her lady friend, by name Sugandha, on phone and talking about the husband and his family in a manner, which the husband claims was derogatory, defamatory and constituted cruelty to him.
2) The wife opposed the CD being brought on record on the ground, firstly, that the contents of the CD were tampered with and were therefore not authentic ; and secondly, that the contents of the CD were not admissible in evidence since they were a
recording of a ‘private’ conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.

3)  On the other hand, it is the husband's contention that although privacy
has been recognised by the Supreme Court as a fundamental right, this right
is not absolute but is subject to exceptions. Relying upon other judicial
precedents, it is urged that the husband was entitled to establish cruelty on
the wife’s part and to prove his case seeking dissolution of marriage on that
ground ; and in these circumstances, the wife's right to privacy must give
way to the husband's right to bring evidence to prove his case, else the
husband would be denied the right to fair trial guaranteed under Article 21
of the Constitution. It is of course also argued on behalf of the husband, that
section 14 of the Family Courts Act specifically empowers a Family Court
to receive evidence, if in its opinion such evidence will assist the court to
deal effectively with the dispute, regardless of whether the same is otherwise

relevant or admissible under the Evidence Act.
4) 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. It is a critical part of the hallowed concept of fair
trial that a litigating party gets a fair chance to bring relevant evidence
before court. It is important to appreciate that while the right to privacy is
essentially a personal right, the right to a fair trial has wider ramifications
and impacts public justice, which is a larger cause. The cause of public
justice would suffer if the opportunity of fair trial is denied by shutting-out
evidence that a litigating party may wish to lead at the very threshold.
24. 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.

5)  If it were to be held that evidence sought to be adduced before a Family Court should be excluded based on an objection of breach of privacy or some other cognate right, then in many a case the provisions of section 14 would be rendered nugatory and dead-letter. It must be borne in mind that Family Courts have been established to deal with what are essentially
sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which
they arise, involve issues that are private, personal and involve intimacies. It
is easily foreseeable therefore, 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. 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. And yet, falling back upon the general rule of evidence, the test of admissibility would only be
relevance ; and accordingly, even ignoring section 14, fundamental considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be  served by emasculating the salutary provisions of section 14 of
the Family Courts Act by citing breach of privacy. Looking at it
dispassionately, even assuming evidence is collected in breach of privacy, at best and at worst, it is the process of collection of evidence that would be tainted not the evidence itself.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Dated : 30th June, 2020
 CM(M) 40/2019 and CM APPL.No.1226/2019

DEEPTI KAPUR Vs  KUNAL JULKA 

CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI


This petition under Article 227 of the Constitution of India impugns
order dated 24.12.2018 made by the learned Principal Judge (South), Family
Court, Saket, Delhi in HMA No.609/2012 titled Kunal Julka vs. Deepti
Kapur.
2. The issue at hand arises from a matrimonial dispute which is pending
before the Family Court by way of a divorce petition bearing HMA
No. 609/2012, the relevant details of which are referred to hereinafter.
3. The petitioner/wife is the respondent in the aforesaid divorce petition
which was filed on 26.09.2012 by the respondent/husband seeking

dissolution of their marriage on the ground of cruelty available under section
13(1)(ia) of the Hindu Marriage Act, 1955. In the divorce proceedings, the
husband filed a Compact Disc (CD) purporting to contain an audio-video
recording of the wife supposedly speaking with her lady friend, by name
Sugandha, on phone and talking about the husband and his family in a
manner, which the husband claims was derogatory, defamatory and
constituted cruelty to him. In the written statement filed by the wife in the
divorce proceedings, she opposed the taking on record of the CD and the
purported transcript of conversation contained therein. The wife opposed the
CD being brought on record on the ground, firstly, that the contents of the
CD were tampered with and were therefore not authentic ; and secondly, that
the contents of the CD were not admissible in evidence since they were a
recording of a ‘private’ conversation that the wife had had with a friend,
which had been secretly recorded by the husband, without the knowledge or
consent of the wife, in breach of her fundamental right to privacy.
4. In response to the wife’s objections, the husband moved an
application before the Family Court, in which he in effect sought
appointment of an expert to prove the genuineness of the CD with the
purpose of bringing the CD on record. Agreeing with the husband's
contentions, by way of impugned order dated 24.12.2018, the Family Court
allowed the husband to bring on record the evidence comprised in the CD,
while directing that the contents of the CD be examined by the Forensic
Science Laboratory (FSL) to assess the genuineness of the recording. By
way of the impugned order, the Family Court has directed the FSL to render
its opinion on the following aspects :

“The FSL shall report :(l) (sic) Whether the contents of CD
and the original recording in the recording device are at
variance? (2) Whether the original recording has been
tempered (sic) with? (3)Whether the transcript relied upon
by the petitioner is correct, as per the original recording?”
5. While the prayer made in the application on which the Family Court
has made the impugned order is somewhat ambiguous, the essential question
raised in the present proceeding is as regards the admissibility of the
contents of the CD, since according to the wife, the conversation comprised
in the CD has been recorded in breach of her fundamental right to privacy;
and is therefore inadmissible in evidence.
Petitioner’s submissions :
6. The wife’s objection arises from the conceded position that the audiovideo
recording on the CD was made by means of a CCTV camera installed
by the husband in the bedroom of the parties ; and that is how the
conversation between the wife and her friend came to be recorded. The wife
accordingly contends that since the evidence comprised in the CD was
collected in breach of the wife's fundamental right to privacy, the same is
not admissible in a court of law. Relying on a Constitution Bench judgment
of the Supreme Court in Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union
of India & Ors.1, the wife has urged that privacy has (now) been recognised
by the Supreme Court as a fundamental right, available to a person not only
against the State but also against private individuals. It is 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
1 (2017) 10 SCC 1

within one’s zone of privacy. In this context, it is urged that the
conversation between the wife and her friend, conducted in the bedroom and
therefore in the belief that the same was being conducted in private, cannot
be brought on record and be cited in evidence. It is further submitted that
since the husband's action of secretly recording the conversation using a
CCTV camera installed in the bedroom is a violation of the wife's
fundamental right to privacy, the recording is per se illegal and therefore not
admissible in evidence.
7. In the context of section 14 of the Family Courts Act 1984 (‘Family
Courts Act', for short), it is argued, that though this provision otherwise
empowers a Family Court to receive evidence, if in the opinion of the
Family Court, such evidence assists it to deal effectually with a dispute,
whether or not the same is otherwise relevant or admissible under the Indian
Evidence Act 1872 (‘Evidence Act’, for short), yet this section does not
permit evidence which is inadmissible “as per the Constitution” to be taken
on record. Relying upon certain judicial precedents, it is argued on behalf of
the wife that since the conversation comprised in the CD was recorded in
breach of the wife’s fundamental right to privacy as recognised in the
Constitution, it cannot be admitted in evidence even under section 14 of the
Family Courts Act.
8. 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 Indian
Penal Code 1860, whereby the very act of recording such conversation is a
criminal offence, punishable in law ; and accordingly evidence collected by committing a penal offence must per se be inadmissible in a court of law for
any purpose and under any statute.
Respondent’s submissions :
9. On the other hand, it is the husband's contention that although privacy
has been recognised by the Supreme Court as a fundamental right, this right
is not absolute but is subject to exceptions. Relying upon other judicial
precedents, it is urged that the husband was entitled to establish cruelty on
the wife’s part and to prove his case seeking dissolution of marriage on that
ground ; and in these circumstances, the wife's right to privacy must give
way to the husband's right to bring evidence to prove his case, else the
husband would be denied the right to fair trial guaranteed under Article 21
of the Constitution. It is of course also argued on behalf of the husband, that
section 14 of the Family Courts Act specifically empowers a Family Court
to receive evidence, if in its opinion such evidence will assist the court to
deal effectively with the dispute, regardless of whether the same is otherwise
relevant or admissible under the Evidence Act.
10. In support of their respective submissions, the parties have cited the
following judicial precedents:
Precedents cited by the petitioner/wife :
(i) Justice K. S. Puttaswamy (Retd.) & Anr. vs. UOI & Ors.
(supra) : in which a 9-Judge Constitution Bench of the
Supreme Court has held that the right to privacy is a
constitutionally protected right of an individual.

(ii) Rayala M. Bhuvaneswari vs. Nagaphanender Rayala2 : in
which a single Judge of the Andhra Pradesh High Court has
held that the act of phone tapping by the husband is illegal
and infringed the wife’s right to privacy.
(iii) State of Punjab vs. Baldev Singh3 : in which, while dealing
with section 50 of The Narcotic Drugs and Psychotropic
Substances Act 1985 (‘NDPS Act’, for short), a 5-Judge
Constitution Bench of the Supreme Court has held that while
considering the aspect of fair trial, the nature of the evidence
obtained and the nature of the safeguard violated are both
relevant factors. Courts cannot allow admission of evidence
against an accused where the court is satisfied that the
evidence had been obtained by conduct of which the
prosecution ought not to take advantage, particularly when
that conduct causes prejudice to the accused.
Precedents cited by the respondent/husband :
(i) Yusufalli Esmail Nagree vs. The State of Maharashtra4 : in
which a 3-Judge Bench of the Supreme Court has held that a
tape recording can be considered as a statement, provided it
is not tampered with; and that the tape recording was done
without knowledge is not in itself an objection to its
admissibility.
2 MANU/AP/0907/2007
3 (1999) 6 SCC 172
4 (1967) 3 SCR 720

(ii) N. Sri Rama Reddi & Ors. vs. V. V. Giri5 : in which a
5-Judge Constitution Bench of the Supreme Court has upheld
the decision in S. Pratap Singh vs. State of Punjab : (1964) 4
SCR 733, that a tape recorded conversation is admissible. It
was further held that a tape recording can be used to
corroborate as well as contradict evidence.
(iii) R. M. Malkani vs. State of Maharashtra6 : in which a 2-
Judge Bench of the Supreme Court has held that conversation
that is tape recorded by an external device, without tampering
or interrupting telephone lines, is admissible in evidence. In
this case the Supreme Court has spelt-out three conditions for
admissibility of a tape recording, namely (a) relevance, (b)
voice identification and (c) proof of accuracy. Further it has
been held that evidence, even if procured illegally, is
admissible.
(iv) Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass
Mehra & Ors.7 : in which a 3-Judge Bench of the Supreme
Court has held that tape recordings of speeches were
documents under section 3 of the Evidence Act, which stood
on no different footing than photographs, and were
admissible after satisfying the three conditions as laid down
inter alia in RM Malkani (supra).
5 (1970) 2 SCC 340
6 (1973) 1 SCC 471
7 (1976) 2 SCC 17

(v) X vs. Hospital Z8 : in which a 2-Judge bench of the Supreme
Court has held that the disclosure by a doctor of a serious
disease suffered by a prospective groom that saved the
prospective wife from contracting that disease, did not invade
the man’s right to privacy, despite the fact that one of the
most important aspects of a doctor-patient relationship is the
doctor’s duty to maintain secrecy about a patient’s medical
condition ; and that though the right to privacy is one of the
basic human rights, it is not treated as absolute and is subject
to such action as may lawfully be taken for prevention of
crime or disorder or protection of health or morals or
protection of rights and freedoms of others. For completeness
it must be noted that upon an application made subsequently,
a 3-Judge bench of the Supreme Court in X vs. Y Hospital9
clarified that the decision of the 2-Judge bench decided only
that revealing the man’s medical condition to the fiancé’s
relatives did not violate his right to privacy since the fiancé
had a right to know about the medical status of the man she
was to marry, while holding that certain other observations
made by the 2-Judge bench were uncalled for.
(vi) Sharda vs. Dharmpal10 : in which a 3-Judge Bench of the
Supreme Court has held that a matrimonial court has the
power to order a person to undergo medical tests ; and
8 (1998) 8 SCC 296
9 (2003) 1 SCC 500
10 (2003) 4 SCC 493

passing of such an order by the court would not be in
violation of the right to personal liberty under Article 21; and
that if a party refuses to submit himself to medical
examination despite a court order, the court will be entitled to
draw an adverse inference against that party.
(vii) Tukaram S. Dighole v. Manikrao Shivaji Kokate 11 : in
which a 2-Judge Bench of the Supreme Court, citing
Ziyauddin Burhanuddin Bukhari (supra), has held that tape
recordings are documents under section 3 of the Evidence
Act, which stood on no different footing than photographs;
and were admissible after satisfying the three conditions as
laid down inter alia in R.M. Malkani (supra), though with
more stringent standards of proof.
(viii) Anurag Kumar Singh & Ors. vs. State of Uttarakhand &
Ors.12 : in which a 2-Judge Bench of the Supreme Court has
held that courts cannot give any direction contrary to the
statutes or rules made thereunder in purported exercise of
judicial discretion.
(ix) Anvar P. V. vs. P.K. Basheer & Ors.13 : in which a 3-Judge
Bench of the Supreme Court has held that electronic record
produced for inspection of the court is documentary evidence
under section 3 of the Evidence Act, to be proved in
11 (2010) 4 SCC 329
12 (2016) 9 SCC 426
13 (2014) 10 SCC 473

accordance with the procedure prescribed under section 65-B
of the Evidence Act.
(x) Justice K. S. Puttaswamy (Retd.) & Anr. vs. UoI & Ors.
(supra) : in which a 9-Judge Constitution Bench of the
Supreme Court has held that the right to privacy is a
fundamental right; however it is not an absolute right and has
to be placed in the context of other rights and values.
(xi) Havovi Kersi Sethna vs. Kersi Gustad Sethna14 : in which a
single Judge of the Bombay High Court has followed the
tests laid down inter alia in RM Malkani (supra) as to the
admissibility of tape recorded conversations.
(xii) Manohar Lal Agrawal vs. Santosh & Ors.15 : in which a
Division Bench of the Rajasthan High Court has held that the
Family Court has been left free to receive any evidence or
material which assists it to deal effectually with a dispute and
the provisions of the Evidence Act would not be applicable.
(xiii) Preeti Jain vs. Kunal Jain & Anr. 16 : in which a single
Judge of the Rajasthan High Court has held that the
‘privilege’ in respect of husband-and-wife communication
under section 122 of the Evidence Act is eclipsed by section
14 of the Family Courts Act 1984.
14 SCC OnLine Bom 120
15 MANU/RH/0162/1993
16 SCC OnLine Raj 2838

(xiv) Sagrika Debata vs. Satyanarayan Debata & Anr. 17 : in
which a Division Bench of the Orissa High Court has held
that consideration of evidence by a Family Court is not
restricted by the rules of relevancy or admissibility provided
under the Evidence Act.
(xv) Akham Ibodi Singh vs. Akham Biradhwaja Singh & Anr18.:
in which case a single Judge of the Gauhati High Court has
held that the Family Court deals with disputes concerning the
family by adopting an approach radically different from that
adopted in ordinary civil proceedings ; and that section 14 of
the Family Courts Act does not suffer from any vice of either
arbitrariness or being fanciful.
(xvi) Pootholi Damodaran Nair vs. Babu19 : in which a single
Judge of the Kerala High Court has held that a tape recording
can be considered as a statement provided it is not tampered
with; and the tests laid down inter alia in R.M. Malkani
(supra) are followed.
Decision of the Family Court :
11. In allowing the husband’s application, the Family Court has dealt with
the rival contentions of the parties in the following way :
“7.1 There can be no dispute to the law laid down in
K.S.Puttaswamy & Anr.'s case (supra). The law, as
17 2009 SCC OnLine Ori 82
18 2006 SCC OnLine Gau 276
19 2005 SCC OnLine Ker 189

enunciated by a Full Bench (sic) of the Hon'ble Supreme
Court of India is binding and sacrosanct. However, this
court is of the opinion that the scope of K.S.Puttaswamy &
Anr.'s case (supra) is restricted to a stage prior to violation
of the right to privacy. The Hon'ble Supreme Court of India
has held that a person has a right to maintain his privacy.
This right has been conferred the status of a Fundamental
right. The protection has been enunciated to be available
against state, as well, as non-state entities. However, the
consequences of such violation, on the admissibility/
inadmissibility of the evidence collected by such violation,
are not the subject matter or have not been discussed in the
judgment.”
“7.2 Thus, in the present case, the act of petitioner/ husband
of planting an audio-video recorder without the knowledge
and permission of respondent, certainly amounts to invasion
of respondent's right to privacy. Petitioner had no right to
plant such a device. Having planted the said recorded (sic)
and made a recording therein, the legally permissible
consequences would follow. In appropriate proceedings,
petitioner can be held liable for violating the respondent's
Fundamental right to privacy. The question that needs to be
answered by this court in the present application is, from
the next stage onwards i.e. 'whether the evidence so
collected in violation of respondent's Fundamental right
to privacy is admissible or not ?. This court is of the
opinion that K.S.Puttaswamy & Anr's case (supra) is silent
on this question. Reliance upon law laid down in X Vs.
Hospital Z's, case (supra) and Sharda Vs. Dharampal's
case (supra) also does not answer this question. In X Vs.
Hospital Z's case (supra), it was held by the Hon'ble
Supreme Court that dissemination of information about a
person being infected with HIV +ve is not hit by right of

privacy, as the prospective spouse has a right to protect
herself from being infected. In Sharda Vs. Dharampal's
case (supra), Family courts' power to direct a person to
undergo medical test was held not violative of Article 21 of
the Constitution of India. The judgments relied upon by ld.
counsels based on Article 19 & 21 of the Constitution of
India, therefore, do not answer the question, which this
court is required to answer.”
(Emphasis supplied)
12. The Family Court has further given the following reason for receiving
the evidence filed by way of the CD in light of section 14 of the Act :
“8.1 It is sec.-14 of the Family Court of Act, which squarely
& clearly answers the question posed. Sagarika Devatta's
case (supra) elucidates the object of sec.-14 of the Family
Courts Act. The legislature's wisdom to keep the procedure
in legal aspect of a Family Court, to be simple and noncomplicated
have been held to be the object of the Sec.-14
of the Family Court Act. For ready reference, Sec.-14 of the
Family Court Act is reproduced hereinbelow :
* * * * * *
It is, therefore, evident that the Family Court is within its
right to receive any report, statement, document or
information, which in the opinion of the court will assist it
in effectually dealing with a dispute between the parties;
whether such evidence is relevant or admissible or not.
Therefore, the question of admissibility of the evidence
collected by violating the respondent's right to privacy,
would not be gone into, by a Family Court and the evidence
shall be taken on record; if the court is of the opinion, that
such evidence will assist it in dealing with the dispute
effectively.”

“8.2 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.
Therefore, in view of sec.-14 of the Family Court Act, the
evidence can not be thrown out on the ground that the same
is inadmissible. Dr. Hingorani's argument that the
admissibility mentioned in Sec.-14 of The Family Courts Act
pertains to admissibility under Indian Evidence Act and not
under the Constitution of India, does not impress this court.
The question of admissibility has been defined only under
the Indian Evidence Act and there is no way that
appreciation of admissibility of evidence can be carried out
under Constitution of India. Therefore, court is of the
opinion that the audio-video recording, as contained in the
CD is certainly permissible to be taken on record and
considered for effectively adjudicating the dispute between
the parties.”
(Emphasis supplied)
13. The Family Court has differed with the view taken by a single Judge
of the Rajasthan High Court in Vishal Kaushik vs. Family Court & Anr.20,
holding that judgement to be per incuriam for the reason that, according to
the Family Court, the law laid down by the Supreme Court in R.M. Malkani
(supra) as followed in State vs. Navjot Sandhu21 was not brought to the
notice of the Rajasthan High Court and has therefore not been considered.
14. The Family Court has relied essentially upon the law as expatiated by
the Supreme Court in Navjot Sandhu (supra), as is discussed later in this
judgment.
20 2015 SCC OnLine Raj 7851
21 (2005) 11 SCC 600

Discussion and conclusions :
15. The impugned order requires to be tested on the anvil of well-worn
principles of admissibility of evidence ; as moulded in light of section 14 of
the Family Courts Act, which creates a special dispensation for a Family
Court receiving evidence to effectively decide disputes before it ; and above
all in view of the overarching effect of the recent, authoritative recognition
given by the Constitution Bench judgment of our Supreme Court to the right
to privacy as a fundamental, though not absolute, right. In assessing the
scope and operation of section 14 of the Family Courts Act, attention must
also be given to the interpretative principles of a ‘special law’ prevailing
over the ‘general law’ ; and of a ‘later statute’ prevailing over an ‘earlier
statute’. The question also needs to be addressed as to whether admissibility
is to be decided based only on principles of evidence or also based on
constitutional rights and principles. Finally, it also needs to be seen if ethical
and moral considerations should also be factored-in for deciding
admissibility of evidence.
16. At this point, it would be useful to extract the relevant Constitutional/
statutory provisions which need to be considered. These are:
The Family Courts Act 1984
“14. Application of Indian Evidence Act, 1872.-A 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 (1 of 1872).”
“20. Act to have overriding effect.- The provisions of this
Act shall have effect notwithstanding anything inconsistent

therewith contained in any other law for the time being in
force or in any instrument having effect by virtue of any law
other than this Act.”
(Emphasis supplied)
Indian Evidence Act 1872
“5. Evidence may be given of facts in issue and relevant facts-
Evidence may be given in any suit or proceeding of the
existence or non-existence of every fact in issue and of such
other facts as are hereinafter declared to be relevant, and of no
others.
Explanation—This section shall not enable any person to give
evidence of a fact which he is disentitled to prove by any
provision of the law for the time being in force relating to Civil
Procedure.”
“7. Facts which are the occasion, cause or effect of facts in
issue-
Facts which are the occasion, cause, or effect, immediately or
otherwise, of relevant facts, or facts in issue, or which
constitute the state of things under which they happened, or
which afforded an opportunity for their occurrence or
transaction, are relevant.”
“8. Motive, preparation and previous or subsequent conduct
Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to
any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence
against whom is subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue

or relevant fact, and whether it was previous or subsequent
thereto.
Explanation 1- The word "conduct" in this section does not
include statements, unless those statements accompany and
explain acts other than statements, but this explanation is
not to affect the relevancy of statements under any other
section of this Act.
Explanation 2—When the conduct of any person is
relevant, any statement made to him or in his presence and
hearing, which affects such conduct is relevant.”
“Section 65B : Admissibility of electronic records.
(1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is
printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer (hereinafter
referred to as the computer output) shall be deemed to be
also a document, if the conditions mentioned in this section
are satisfied in relation to the information and computer in
question and shall be admissible in any proceedings,
without further proof or production of the original, as
evidence or any contents of the original or of any fact stated
therein of which direct evidence would be admissible.”
(Emphasis supplied)
Constitution of India
“21. Protection of life and personal liberty - No person
shall be deprived of his life or personal liberty except
according to procedure established by law.”
17. The Statement of Objects and Reasons (SOR) of the Family Courts
Act enunciates the main purpose of its enactment in the following words :

“Several associations of women, other organizations and
individuals have urged, from time to time, that Family Courts
be set up for the settlement of family disputes, where emphasis
should be laid on conciliation and achieving socially desirable
results and adherence to rigid rules of procedure and evidence
should be eliminated. The Law Commission in its 59th report
(1974) had also stressed that in dealing with disputes
concerning the family the court ought to adopt an approach
radically different from that adopted in ordinary civil
proceedings and that it should make reasonable efforts at
settlement before the commencement of the trial.”
* * * * * *
“2. The Bill inter alia, seeks to—
* * * * * *
h) simplify the rules of evidence and procedure so as to enable
a Family Court to deal effectually with a dispute;”
(Emphasis supplied)
meaning thereby, that apart from the emphasis on settlement of disputes by
conciliation, the other main objective was to ensure expeditious proceedings
inter alia by simplifying the rules of evidence required to be followed by
Family Courts.
18. One of the earliest, leading decisions on the question of admissibility
of tape-recorded conversations is Regina vs. Maqsud Ali22, where a secretly
tape-recorded conversation was the only incriminating piece of evidence
implicating the accused persons for murder. In the face of strong objection
raised by the defence however, in exercise of his discretion, the trial judge
admitted the tape recording in evidence. In this backdrop, the court of
22 (1966) 1 QB 688

criminal appeal held that there was no difference in principle between a tape
recording and a photograph; accordingly, a tape recording was admissible in
evidence provided that its accuracy could be proved and the voices properly
identified and provided the evidence was relevant and otherwise admissible.
The court did not lay down any exhaustive set of rules by which the
admissibility of evidence could be judged but observed that such evidence
had always to be regarded with caution and assessed in the light of all the
circumstances of a particular case. The court further observed that but for
the fact that the tape recorder was a mechanical device, it was no different
from an eavesdropper, and since the accused were not in custody and no
caution was required, the use of the tape recorder could not be said to
operate unfairly against them. The court said that the method of taking the
tape recording could not affect its admissibility, which still remained a
matter for the discretion of the judge. The court however added that it
should not be taken to be saying that such recordings are admissible
whatever the circumstances, but it does appear wrong to deny to the law of
evidence advantages to be gained by new techniques and new devices.
19. The law in India in relation to ‘admissibility’ of evidence is crisp,
clear and consistent. A 5-Judge Constitution Bench of the Supreme Court in
Pooran Mal vs. The Director of Inspection (Investigation), New Delhi &
Ors.23 (and connected matters) was considering a challenge to the seizure of
articles consisting of account books, documents and valuables by Income
Tax Authorities, purporting to exercise their authority for search and seizure
under section 132 of the Income Tax Act 1961 and Rule 112-A of Income
23 (1974) 1 SCC 345

Tax Rules. The legal challenge was that the said provisions were violative of
the fundamental rights guaranteed under Articles 14, 19(1)(f), 19(1)(g) and
31 of the Constitution. Enunciating the law on the point, the Supreme Court
observed as under:
“23. * * * * * *
Now, if the Evidence Act, 1872 which is a law consolidating,
defining and amending the law of evidence, no provision of
which is challenged as violating the Constitution — permits
relevancy as the only test of admissibility of evidence (See
Section 5 of the Act) and, secondly, that Act or any other
similar law in force does not exclude relevant evidence on the
ground that it was obtained under an illegal search or seizure,
it will be wrong to invoke the supposed spirit of our
Constitution for excluding such evidence. Nor is it open to us
to strain the language of the Constitution, because some
American Judges of the American Supreme Court have spelt
out certain constitutional protections from the provisions of the
American Constitution. In M.P. Sharma v. Satish Chander
already referred to, a search and seizure made under the
Criminal Procedure Code was challenged as illegal on the
ground of violation of the fundamental right under Article
20(3), the argument being that the evidence was no better than
illegally compelled evidence. In support of that contention
reference was made to the Fourth and Fifth Amendments of the
American Constitution and also to some American cases which
seemed to hold that the obtaining of incriminating evidence by
illegal seizure and search tantamounts to the violation of the
Fifth Amendment. The Fourth Amendment does not place any
embargo on reasonable searches and seizures. It provides that
the right of the people to be secure in their persons, papers and
effects against unreasonable searches and seizures shall not be
violated. Thus the privacy of a citizen's home was specifically
safeguarded under the Constitution, although reasonable

searches and seizures were not taboo. Repelling the
submission, this Court observed at p. 1096:
“A power of search and seizure is in any system of
jurisprudence an overriding power of the State for the
protection of social security and that power is necessarily
regulated by law. When the Constitution makers have
thought fit not to subject such regulation to
constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import it,
into a totally different fundamental right, by some process
of strained construction. Nor is it legitimate to assume that
the constitutional protection under Article 20(3) would be
defeated by the statutory provisions for searches.”
It, therefore, follows that neither by invoking the spirit of our
Constitution nor by a strained construction of any of the
fundamental rights can we spell out the exclusion of evidence
obtained on an illegal search.”
“24. So far as India is concerned its law of evidence is
modelled on the rules of evidence which prevailed in English
Law, and Courts in India and in England have consistently
refused to exclude relevant evidence merely on the ground
that it is obtained by illegal search or seizure. In Barindra
Kumar Ghose v. Emperor the learned Chief Justice Sir
Lawrence Jenkins says at page 500:
“Mr Das has attacked the searches and has urged that, even if
there was jurisdiction to direct the issue of search warrants, as
I hold there was, still the provisions of the Criminal Procedure
Code have been completely disregarded. On this assumption he
has contended that the evidence discovered by the searches is
not admissible, but to this view I cannot accede. For, without in
any way countenancing disregard of the provisions prescribed
by the Code, I hold that what would otherwise be relevant does
not become irrelevant because it was discovered in the course

of a search in which those provisions were disregarded. As
Jimutavahana with his shrewd common sense observes — “a
fact cannot be altered by 100 texts,” and as his commentator
quaintly remarks: “If a Brahmana be slain, the precept ‘slay
not a Brahmana’ does not annul the murder”. But the absence
of the precautions designed by the Legislature lends support to
the argument that the alleged discovery should be carefully
scrutinized.”
* * * * * *
In Kuruma v. Queen [1955 AC 197] where the Privy Council
had to consider the English Law of Evidence in its application
to Eastern Africa, Their Lordships propounded the rule thus:
“The test to be applied, both in civil and in criminal cases, in
considering whether evidence is admissible is whether it is
relevant to the matters in issue. If it is, it is admissible and the
Court is not concerned with how it was obtained.”
* * * * * *
In Kuruma case, Kuruma was searched by two police officers
who were not authorised under the law to carry out a search
and, in the search, some ammunition was found in the unlawful
possession of Kuruma. The question was whether the evidence
with regard to the finding of the ammunition on the person of
Kuruma could be shut out on the ground that the evidence had
been obtained by an unlawful search. It was held it could not be
so shut out because the finding of ammunition was a relevant
piece of evidence on a charge for unlawful possession. In a
later case before the Privy Council in Herman
King v. Queen [(1969) 1 AC 304] which came on appeal from a
Court of Appeal of Jamaica, the law as laid down in Kuruma
case was applied although the Jamaican Constitution
guaranteed the constitutional right against search and seizure
* * * * * * In other words search and seizure for the purposes
of preventing or detecting crime reasonably enforced was not
inconsistent with the constitutional guarantee against search

and seizure. It was held in that case that the search of the
appellant by a Police Officer was not justified by the warrant
nor was it open to the Officer to search the person of the
appellant without taking him before a Justice of the Peace.
Nevertheless it was held that the Court had a discretion to
admit the evidence obtained as a result of the illegal search and
the constitutional protection against search of person or
property without consent did not take away the discretion of the
Court. Following Kuruma v. Queen the Court held that it was
open to the Court not to admit the evidence against the
accused if the Court was of the view that the evidence had
been obtained by conduct of which the prosecution ought not
to take advantage. But that was not a rule of evidence but a
rule of prudence and fair play. It would thus be seen that in
India, as in England, where the test of admissibility of evidence
lies in relevancy, unless there is an express or necessarily
implied prohibition in the Constitution or other law evidence
obtained as a result of illegal search or seizure is not liable to
be shut out.”
(Emphasis supplied)
20. Following earlier decisions, the position regarding admissibility of
evidence is very pithily captured by a 2-Judge Bench of the Supreme Court
in Navjot Sandhu (supra) as follows :
“154. * * * * * *
The legal position regarding the question of admissibility of the
tape-recorded conversation illegally collected or obtained is no
longer res integra in view of the decision of this Court in R.M.
Malkani v. State of Maharashtra. In that case, the Court
clarified that a contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible as res gestae
under Section 7 of the Evidence Act. Adverting to the argument

that Section 25 of the Telegraph Act, 1885 was contravened the
learned Judges held that there was no violation. At the same
time, the question of admissibility of evidence illegally obtained
was discussed. The law was laid down as follows: (SCC p. 477,
para 24)
“There is warrant for the proposition that even if
evidence is illegally obtained it is admissible. Over a
century ago it was said in an English case where a
constable searched the appellant illegally and found a
quantity of offending article in his pocket that it would be
a dangerous obstacle to the administration of justice if it
were held, because evidence was obtained by illegal
means, it could not be used against a party charged with
an offence. See Jones v. Owens. The Judicial Committee
in Kuruma v. R. dealt with the conviction of an accused of
being in unlawful possession of ammunition which had
been discovered in consequence of a search of his person
by a police officer below the rank of those who were
permitted to make such searches. The Judicial Committee
held that the evidence was rightly admitted. The reason
given was that if evidence was admissible it matters not
how it was obtained. There is of course always a word of
caution. It is that the judge has a discretion to disallow
evidence in a criminal case if the strict rules of
admissibility would operate unfairly against the accused.
That caution is the golden rule in criminal jurisprudence.”
“155. We may also refer to the decision of a Constitution Bench
of this Court in Pooran Mal v. Director of Inspection
(Investigation) in which the principle stated by the Privy
Council in Kuruma case was approvingly referred to while
testing the evidentiary status of illegally obtained evidence.

Another decision in which the same approach was adopted is a
recent judgment in State v. N.M.T. Joy Immaculate. ****** ”
(Emphasis supplied)
21. Although in Puttaswamy (supra) the 9-Judge Constitution Bench of
the Supreme Court has not dealt with the law and principles of evidence in
the context of the right to privacy, the observations of the Supreme Court in
that case that are relevant for purposes of the present discussion are the
following :
On the right to privacy being a fundamental right :
“644. The right to privacy is a fundamental right. It is a right
which protects the inner sphere of the individual from
interference from both State and non-State actors and allows
the individuals to make autonomous life choices.”
On right to privacy not being an absolute right:
“325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute
right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion of
privacy must be justified on the basis of a law which stipulates
a procedure which is fair, just and reasonable. The law must
also be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or
personal liberty must meet the threefold requirement of (i)
legality, which postulates the existence of law; (ii) need,
defined in terms of a legitimate State aim; and (iii)
proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them.”

On the need to place right to privacy in the context of other rights
and values:
“509. Based upon the prevalent thinking of the US Supreme
Court, a seminal judgment was delivered by Mathew, J. in
Gobind [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975
SCC (Cri) 468]. This judgment dealt with the M.P. Police
Regulations, similar to the Police Regulations contained in
Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332]. After setting
out the majority and minority opinions in the said judgment,
Mathew, J. went on to discuss the US Supreme Court judgments
in Griswold [Griswold v. Connecticut, 1965 SCC OnLine US
SC 124 : 14 L Ed 2d 510 : 85 S Ct 1678 : 381 US 479 (1965)]
and Roe [Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed
2d 147 : 410 US 113 (1973)] . In a very instructive passage the
learned Judge held: (Gobind case [Gobind v. State of M.P.,
(1975) 2 SCC 148 : 1975 SCC (Cri) 468] , SCC pp. 155-57,
paras 22-24 & 27-28)
“ * * * * * *
23. Individual autonomy, perhaps the central concern
of any system of limited Government, is protected in part
under our Constitution by explicit constitutional
guarantees. In the application of the Constitution our
contemplation cannot only be of what has been but what
may be. Time works changes and brings into existence new
conditions. Subtler and far-reaching means of invading
privacy will make it possible to be heard in the street
what is whispered in the closet. Yet, too broad a definition
of privacy raises serious questions about the propriety of
judicial reliance on a right that is not explicit in the
Constitution. Of course, privacy primarily concerns the
individuals. It therefore relates to and overlaps with the
concept of liberty. The most serious advocate of privacy
must confess that there are serious problems of defining

the essence and scope of the right. Privacy interest in
autonomy must also be placed in the context of other
rights and values.
24. Any right to privacy must encompass and protect
the personal intimacies of the home, the family, marriage,
motherhood, procreation and child-bearing. This
catalogue approach to the question is obviously not as
instructive as it does not give analytical picture of
distinctive characteristics of the right to privacy. Perhaps,
the only suggestion that can be offered as unifying
principle underlying the concept has been the assertion
that a claimed right must be a fundamental right implicit
in the concept of ordered liberty.
* * * * * *
27. There are two possible theories for protecting
privacy of home. The first is that activities in the home
harm others only to the extent that they cause offence
resulting from the mere thought that individuals might be
engaging in such activities and that such “harm” is not
constitutionally protectable by the State. The second is
that individuals need a place of sanctuary where they can
be free from societal control. The importance of such a
sanctuary is that individuals can drop the mask, desist for
a while from projecting on the world the image they want
to be accepted as themselves, an image that may reflect
the values of their peers rather than the realities of their
natures.
28. The right to privacy in any event will necessarily
have to go through a process of case-by-case development.
Therefore, even assuming that the right to personal liberty,
the right to move freely throughout the territory of India
and the freedom of speech create an independent right to
privacy as an emanation from them which one can

characterise as a fundamental right, we do not think that
the right is absolute.”
The Police Regulations were, however, not struck down,
but were termed as being perilously close to being
unconstitutional.”
(Emphasis supplied)
22. It is crucial to note however, that at the time that the decisions in M.P.
Sharma & Ors. vs. Satish Chandra & Ors.24 and subsequently in Pooran
Mal (supra) were rendered, privacy was not recognised as a fundamental
right under the Constitution, as indeed no such right had been expressly
enunciated by our Founding Fathers. Today however, in Puttaswamy
(supra), our Supreme Court has recognised privacy as a fundamental right,
while qualifying it to say that the right to privacy is not absolute but is
subject to exceptions, limitations and contours ; and must be placed in the
context of other rights and values. However, even at the time of M.P.
Sharma (supra) and Pooran Mal (supra), Articles 14, 19(1)(f), 19(1)(g),
20(3) and 31, under which these cases arose, were very much in Part-III of
the Constitution dealing with fundamental rights; and yet the Supreme Court
opined that merely because a search or seizure was illegally conducted and
may amount to breach of a fundamental right, that would not make the
search or seizure invalid in law. Applying the same principle, this court is of
the view that although today, privacy is recognised as a fundamental right,
that alone would not make evidence collected in breach of that right,
inadmissible. Muchless would it negate the specific statutory dispensation
contained in section 14 of the Family Courts Act, which says that evidence
24 AIR 1954 SC 300

would be admissible, whether or not the same is otherwise relevant or
admissible under the Evidence Act.
23. 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. It is a critical part of the hallowed concept of fair
trial that a litigating party gets a fair chance to bring relevant evidence
before court. It is important to appreciate that while the right to privacy is
essentially a personal right, the right to a fair trial has wider ramifications
and impacts public justice, which is a larger cause. The cause of public
justice would suffer if the opportunity of fair trial is denied by shutting-out
evidence that a litigating party may wish to lead at the very threshold.
24. 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. Reference in this regard may be made to the observations
of a 5-Judge Constitution Bench decision of our Supreme Court in Sahara
India Real Estate Corporation Limited & Ors. vs. Securities and
Exchange Board of India & Anr.25 , where the court observes thus :
“ ..... It must not be forgotten that no single value, no matter
exalted, can bear the full burden of upholding a democratic
system of government. Underlying our constitutional system are
a number of important values, all of which help to guarantee
our liberties, but in ways which sometimes conflict. Under of
Constitution, probably, no values are absolute. All important
25 (2012) 10 SCC 603

values, therefore, must be qualified and balanced against other
important, and often competing, values. This process of
definition, qualification and balancing is as much required with
respect to the value of freedom of expression as it is for other
values. Consequently, free speech, in appropriate cases, has got
to correlate with fair trial. It also follows that in an appropriate
case one right (say freedom of expression) may have to yield to
the other right like right to a fair trial. Further, even Articles
14 and 21 are subject to the test of reasonableness after the
judgement of this Court in Maneka Gandhi v. Union of India.”
(Emphasis supplied)
25. In fact, the rule of evidence that the test of admissibility of evidence is
only its relevancy, laid down inter-alia in Pooran Mal (supra) has been
followed by our courts even after Puttaswamy (supra). In one of the most
recent judgments in Yashwant Sinha & Ors. vs. Central Bureau of
Investigation through its Director & Anr.26, where the issue before the
Supreme Court was whether it should permit certain documents, which the
State Authorities alleged had been unauthorisedly removed from the records
of the Ministry of Defence, to be placed on record in a review petition; and
whether the review petitioners should be permitted to rely upon such
unauthorisedly procured documents. The Attorney General had submitted
that the Supreme Court could not consider these documents. Dealing with
this objection the Supreme Court opined as under:
“9. An issue has been raised by the learned Attorney with
regard to the manner in which the three documents in question
had been procured and placed before the Court. In this regard,
as already noticed, the documents have been published in The
Hindu newspaper on different dates. That apart, even assuming
26 (2019) 6 SCC 1

that the documents have not been procured in a proper manner
should the same be shut out of consideration by the Court ? In
Pooran Mal v. Director of Inspection this Court has taken the
view that the “test of admissibility of evidence lies in its
relevancy, unless there is an express or necessarily implied
prohibition in the Constitution or other law evidence obtained
as a result of illegal search or seizure is not liable to be shut
out”.
* * * * * *
“45. I may also notice another aspect. Under the common law,
both in England and in India, the context for material being
considered by the court is relevancy. There can be no dispute
that the manner in which evidence is got, namely, that it was
procured in an illegal manner would not ordinarily be very
significant in itself in regard to the court's decision to act upon
the same [see in this context judgment of this Court in Pooran
Mal v. Director of Inspection].”
(Emphasis supplied)
26. Coming now to the scope and purport of section 14 of the Family
Courts Act, that has been discussed in a judgment of a Co-ordinate Bench of
the Bombay High Court in Deepali Santosh Lokhande vs. Santosh
Vasantrao Lokhande 2018 (1) Mh. L.J. 944, in which case, while deciding an application to
bring on record electronic evidence under section 65B of the Evidence Act,
the Bombay High Court has taken the following view :
“5. Having considered the submissions as urged on behalf of
the parties, it is quite clear that the proceeding before the
Family Court would stand on a different footing from the
proceeding before the regular Civil Courts where the rigour of
the provisions of the Evidence Act are fully applicable for the
Civil Court to evaluate the evidence on preponderance of
probabilities and for that matter even the proof of electronic
record. It is apposite to examine the provisions of section 14 of
the Family
Courts Act which reads as under:…..”
* * * * * *
“6. …….. The object, effect and consequence of this provision
is to remove any embargo on the Family Court to first examine
the relevancy or admissibility of the documents under Indian
Evidence Act in considering such documents in adjudication of
the matrimonial dispute. The Statement of Object and Reasons
leading to the enactment of the Family Court's Act would also
become a guiding factor so as to ascertain the intention of the
legislature in framing section 14 when it uses the above words.
One of the objects of the legislation as Clause 2 (h) of the
Statement of Object and Reasons would provide is “simplify the
rules of evidence and procedure so as to enable a Family Court
to deal effectively with a dispute”. This clearly manifests the
intention of the legislature to remove complexities in the
application of rules of evidence to make the procedure more
comprehensible so as to enable a Family Court to deal
effectively with a matrimonial dispute under the Family Courts
Act, which is a special Act.”
7. When section 14 stipulates and says that the Family Court
can receive a document in evidence irrespective of the same
being relevant or admissible in evidence under the Evidence
Act, it signifies two important facets namely that the Family
Court at the threshold cannot reject a document on the ground
that the document is not legally admissible in evidence and
secondly the test and rigor of relevancy and admissibility of the
document can be dispensed with by the Family Court if the
Family Court is of the opinion that any evidence would assist it

to deal effectively with the dispute. It cannot be disputed that
admissibility presupposes relevancy as admissibility is founded
on law whereas relevancy is determined by Court using judicial
skills, logic and experience. Admissibility does not signify that
a particular fact stands proved but merely that such a fact is
received by the Court for the purpose of being weighed. The
learned Judge overlooked that merely because the documents
are marked as Exhibits and the same also becoming available
for cross-examination, is neither an admission as to documents
nor can be treated as an admission of its contents.”
(Emphasis supplied)
Furthermore, discussing the effect of section 20 of the Family Courts Act,
which gives overriding effect to that statute, the Bombay High Court has
held as under :
“9. A cumulative reading of section 14 and section 20 of the
Family Courts Act, takes within its ambit the restricted
applications of the provisions of the Evidence Act qua the
documentary evidence which includes electronic evidence,
whether or not the same is relevant or admissible, if in the
opinion of the Family Court such evidence would assist the
Family Court to deal effectively with the matrimonial dispute.
Considering the above object and the intention of the
legislature, in providing for a departure, from the normal rules
of evidence under the Evidence Act, in my opinion, there was
no embargo for the learned Judge of the Family Court to
accept and exhibit the documents as sought by the petitionerwife.
Ultimately, it is the absolute power and authority of the
Family Court either to accept or disregard a particular
evidence in finally adjudicating the matrimonial dispute.
However, to say that a party would be precluded from placing
such documents on record and or such documents can be
refused to be exhibited unless they are proved, in my opinion,

goes contrary to the object of section 14 of the Family Courts
Act”
“10. In matrimonial cases, the Family Court is expected to
adopt standards as to how a prudent person would gauge the
realities of life and a situation of commotion and turmoil
between the parties and applying the principle of
preponderance of probabilities, consider whether a particular
fact is proved. Thus, the approach of the Family Court is
required to be realistic and rational to the facts in hand rather
than technical and narrow. It cannot be overlooked that
matrimonial disputes involve human problems which are
required to be dealt with utmost human sensitivity by using all
intelligible skills to judge such issues. The Family Court has a
special feature where in a given case there may not be legal
representation of the parties. Section 13 of the Act makes such
a provision. In such a situation, the parties who are not experts
in law cannot be expected to know the technical rules of the
evidence qua the relevancy, admissibility and proof of
documents. Thus, the strict principles as referred in the
impugned order on the decisions which are not under the
Family Courts Act, would not be of any relevance in the
proceedings before the Family Court.”
“11. Thus, in my opinion, even if there is any electronic record
for which certificate under section 65-B of the Evidence Act is
necessary, it would not preclude the learned Judge of the
Family Court to exhibit such documents and receive such
documents in evidence, on forming an opinion as to whether the
documents would assist the Court, to deal effectively with the
dispute in hand. Such exercise has not been undertaken in
passing the impugned order.”
(Emphasis supplied)

27. In this court's opinion, the Legislature being fully cognisant of the
foregoing principle of admissibility of evidence, has enacted section 14
infact to expand that principle insofar as disputes relating to marriage and
family affairs are concerned ; and the Family Court is thereby freed of all
rigours and restrictions of the law of evidence. The 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”. Therefore the only criterion or test under section 14
for a Family Court to receive, that is to say admit, evidence is its subjective
satisfaction that the evidence would assist it to deal effectually with the
dispute. It may also be relevant to note that under section 13 of the Family
Courts Act, parties are to represent themselves without the assistance of
lawyers ; and therefore even more so, all technical aspects of admissibility
of evidence are to be ignored before a Family Court, since parties appearing
in-person cannot be expected to be well versed with the technicalities of the
law of evidence. Reference in this regard may be made to the observations
made by a Division Bench of the Bombay High Court in Shiv Anand
Damodar Shanbhag vs Sujata Shiv Anand Shanbhagh 2013 SCC OnLine Bom 421
28. For the record, the vires of section 14 of the Family Courts Act has
not been challenged by the petitioner in these proceedings.
29. To be sure, in view of the expressed intention of the Legislature in
section 14 of the Family Courts Act, all that is being said here is that evidence, whether collected legitimately or otherwise, may be received by
the Family Court if it is of opinion that the evidence would assist it to
effectively decide the dispute. It is not being suggested that the Family
Court is bound to believe, accept or act upon such evidence for purposes of
adjudication.
30. As observed by the Bombay High Court in the aforementioned case, it
is noteworthy that, what is permitted under section 14 is only for the Family
Court to receive evidence without the rigours and shackles of the
conventional rules of evidence, with the only threshold test being that in the
opinion of the Family Court that piece of evidence will assist it to deal
effectively with the dispute at hand. Thereafter however, the Family Court is
free to either accept or discard or give weightage or disregard a particular
piece of evidence when finally adjudicating the dispute. As under the
ordinary law of evidence, so also under section 14, there is absolutely no
compulsion on the Family Court to accept a given piece of evidence as proof
of a fact-in-issue or of a relevant fact, merely because such evidence has
been taken on record by disregarding all rigours of the rules of evidence.
Correspondingly, it is open to the contesting party to dispute, cross-examine
and disprove the evidence so cited; and to thereby contest any claim being
made on the basis of such evidence. The limited relaxation as it were, in
section 14 is that even if under the Evidence Act or under conventional rules
of evidence, a certain piece of evidence (whether a report, statement,
document, information or other matter) is ex-facie found to be not relevant
and therefore not admissible, the Family Court may yet receive such
evidence on record if in its opinion, the evidence would assist it to deal effectively with the dispute. What credence, value or weightage is to be
given to the evidence so received is discretionary upon the judge, when
finally adjudicating the dispute.
31. Another settled principle of interpretation of statutes that guides us in
understanding the scope and operation of section 14 is the maxim 'generalia
specialibus non derogant’. In Barker vs. Edger & Others29 , the Privy
Council of the House of Lords has pithily summarised the purport of the
maxim in the following words :
“The general maxim is, “Generalia specialibus non derogant.”
When the Legislature has given its attention to a separate
subject, and made provision for it, the presumption is that a
subsequent general enactment is not intended to interfere with
the special provision unless it manifests that intention very
clearly. Each enactment must be construed in that respect
according to its own subject-matter and its own terms.”
While in the above case, the Privy Council was dealing with a
subsequent general enactment, the principle applies a fortiori to a
subsequent special enactment. That is to say, a special enactment would
prevail, whether made earlier or subsequently, over a general enactment if
that is the discernible intention of the Legislature in relation to the subject
matter of the special enactment. Our Supreme Court has also dealt with the
issue in Sharat Babu Digumarti vs. Government (NCT of Delhi)30 in which
the issue was of construing section 81 of the Information Technology Act
2000, which provision is in pari materia with section 20 of the Act and
29 1898 AC 748
30 (2017) 2 SCC 18

gives an overriding effect to the Information Technology Act over anything
inconsistent therewith contained in any other law for the time being in force.
The other provision of law in question was section 292 of the Indian Penal
Code 1860 which makes the sale of obscene books etc. a penal offence. In
Sharat Babu Digumarti (supra), the Supreme Court has opined as under :
“32. Section 81 of the IT Act also specifically provides that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time
being in force. All provisions will have their play and
significance, if the alleged offence pertains to offence of
electronic record. It has to be borne in mind that IT Act is a
special enactment. It has special provisions. Section 292 IPC
makes offence sale of obscene books, etc. but once the offence
has a nexus or connection with the electronic record the
protection and effect of Section 79 cannot be ignored and
negated. We are inclined to think so as it is a special provision
for a specific purpose and the Act has to be given effect to so as
to make the protection effective and true to the legislative
intent. This is the mandate behind Section 81 of the IT Act. The
additional protection granted by the IT Act would apply.”
* * * * * *
“37. The aforesaid passage clearly shows that if legislative
intendment is discernible that a latter enactment shall prevail,
the same is to be interpreted in accord with the said intention.
We have already referred to the scheme of the IT Act and how
obscenity pertaining to electronic record falls under the scheme
of the Act. We have also referred to Sections 79 and 81 of the
IT Act. Once the special provisions having the overriding effect
do cover a criminal act and the offender, he gets out of the net
of IPC and in this case, Section 292. It is apt to note here that
electronic forms of transmission are covered by the IT Act,

which is a special law. It is settled position in law that a special
law shall prevail over the general and prior laws. When the Act
in various provisions deals with obscenity in electronic form, it
covers the offence under Section 292 IPC.”
(Emphasis supplied)
32. To address the aspect whether ethical and moral considerations should
be factored-in to decide admissibility of evidence, attention may be drawn
to the observation of the Supreme Court in Pooran Mal (supra), where the
court said that when there is no express or specifically implied prohibition
in the Constitution, it is uncalled for and unwarranted to invoke the spirit of
the Constitution to exclude evidence. Equally so, in the face of the settled
rule of evidence as augmented by section 14 of the Family Courts Act, it
would be unwarranted to bring into the picture subjective and undefined
ethical and moral values or considerations, to decide if evidence should
even be receivable by a Family Court. 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.
Such construction would have more potential for mischief than possible
salutary effect.
33. If it were to be held that evidence sought to be adduced before a
Family Court should be excluded based on an objection of breach of privacy or some other cognate right, then in many a case the provisions of section 14
 would be rendered nugatory and dead-letter. It must be borne in mind that
Family Courts have been established to deal with what are essentially
sensitive, personal disputes relating to dissolution of marriage, restitution of
conjugal rights, legitimacy of children, guardianship, custody, and access to
minors; which matters, by the very nature of the relationship from which
they arise, involve issues that are private, personal and involve intimacies. It
is easily foreseeable therefore, 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. 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. And yet, falling back
upon the general rule of evidence, the test of admissibility would only be
relevance ; and accordingly, even ignoring section 14, fundamental
considerations of fair trial and public justice would warrant that evidence be
received if it is relevant, regardless of how it is collected. No purpose would
therefore be served by emasculating the salutary provisions of section 14 of
the Family Courts Act by citing breach of privacy. Looking at it
dispassionately, even assuming evidence is collected in breach of privacy, at
best and at worst, it is the process of collection of evidence that would be
tainted not the evidence itself.
34. 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 factin-
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.

35. 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.
36. 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.
37. While consistency in law is of utmost importance and law must get its
full play regardless of the fact situation, this court must record the unease it
feels with regard to a certain aspect that has arisen in this matter. Marriage is
a relationship to which sanctity is still attached in our society. Merely
because rules of evidence favour a liberal approach for admitting evidence
in court in aid of dispensation of justice, this should not be taken as approval
for everyone to adopt any illegal means to collect evidence, especially in
relationships of confidence such as marriage. 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. For instance, if a spouse has the carte blanche to install a recording
device in a bedroom or other private space or to adopt any means

whatsoever to collect evidence against the partner, even if in circumstances
of matrimonial discord, it would be difficult to foresee the length to which a
spouse may go in doing so ; and such possibility would itself spell the end of
the marital relationship. It is not uncommon for spouses to continue living
together, even in matrimonial strife, for years on-end. So, 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.
38. In the above view of the matter, and subject to the above observations,
this court finds no infirmity in the impugned order and the same is upheld.
39. The petition is disposed of in the above terms, leaving the parties to
bear their respective costs.
40. Pending applications, if any, shall also stand disposed of.
ANUP JAIRAM BHAMBHANI, J.
June 30, 2020

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