Call Recordings in Matrimonial Disputes

ADMISSIBILITY OF CALL RECORDINGS BEFORE COURT AS EVIDENCE IN MATRIMONIAL DISPUTES

Over the period, more and more matters have come before the court wherein one or both of the parties to the dispute rely on electronic evidence such as phone recordings, screenshots of chats/texts, etc. However the focus of this article is merely phone recordings but what becomes significant in such cases is that whether they are admissible or not? How are they obtained legally or illegally obtained by tapping the phone or installing a bug in a smartphone? These issues will be dealt with in this article from now on.

Admissibility of electronic records

The admissibility of evidence is governed by the Indian Evidence Act 1872 (from now on referred to as IE Act); however, it initially did not contain any provision which provided for the admissibility of electronic records; it was only after the Information Technology Act, 2000 (from now on referred to as the IT Act) which provided the definition of “electronic record” as “(t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;” and amended the IE Act to include words “all documents including electronic records produced for the inspection of the Court” in the definition of “Evidence” under the IE Act.

The IT Act also introduced Sec. 65A and Sec. 65B in the IE Act, which provides for certain conditions which, if satisfied, such evidence shall be admissible in any proceedings before the Courts. The conditions are as follows;

• The computer source containing the information, which is being produced as evidence, has to be produced by the computer during the period over which it was used regularly to store or process data for any activities regularly carried on, and it must be carried on by a person who has lawful control over the use of that computer.
• During the said period, the information contained in the electronic record or of a kind derived from it must be regularly fed into the computer in the ordinary course of these activities.
• Throughout the significant part of this period, the computer must be operating correctly or, if not, then in respect of any period in which it was not operating properly or was out of operation, for the duration of that part of the period, the accuracy of the contents of the electronic record must not be affected.
• The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

According to section 65B (4), if the evidence is adduced during any proceeding before a Court by this section, then a certificate stating any of the following needs to be furnished;

•  A certificate identifying the electronic record containing the statement and describing how it was produced or;
• A certificate giving such particulars of any device involved in the production of that electronic record as may be appropriate for showing that a computer produced the electronic record or
• It is to be signed by a person occupying a responsible official position about the operation of the relevant device or the management of the appropriate activities. It shall be evidence of any matter stated in the certificate.

In Anvar P.V. v P.K. Basheer (2014 10 SCC 473), the Apex Court held that for any electronic evidence to be admissible in its secondary form, it is necessary to meet the mandatory requirements of Section 65-B, which includes giving a certificate as per terms of Section 65-B (4), at the time of proving the record and not anytime later, failing which the electronic record will be considered objectionable.

Admissibility of phone recordings

In RM Malkani v. State of Maharastra (1973) 1 SCC 471, the Court laid down the following conditions to allow a tape-recorded conversation to be admissible as evidence before a court of law.

“Tape recorded conversation is admissible, provided first the conversation is relevant to the matters 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 tape-recorder. The tape-recorded conversation is, therefore, a relevant fact under section 8 of the Evidence Act and is admissible under section 7 of the Evidence Act.”

Subsequently, in the case Ram Singh v. Col. Ram Singh 1985 Supp SCC 611, the Court held that the evidence recorded on a tape Recorder or other mechanical process is in favour of the admissibility of the statements subject to certain safeguards such as;

• The speaker’s voice must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical result that the first condition for the admissibility of such a statement is to identify the speaker’s voice. Where the maker has denied the voice, rigorous proof will be required to determine whether it was the speaker’s voice.
• The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
• Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out; otherwise, it may render the statement out of context and, therefore, inadmissible.
• The statement must be relevant according to the rules of the Evidence Act.
• The recorded cassette must be carefully sealed and kept in safe or official custody.
•  The voice of the speaker should be audible and not lost or distorted by other sounds or disturbances.

An exception to the requirement of sealing laid in the previously mentioned case appears to have been carved out by the Bombay High Court in Havovi Kersi Sethna v. Kersi Gustad Sethna, [2011 SCC OnLine Bom 120], wherein it has been held that in a civil lis the defendant himself has recorded the phone conversation with the plaintiff, as a party in a civil suit who is required to keep custody of its documents, there is no question of requirement of sealing.

The Supreme Court in K. Velusamy v. N. Palanisamy [(2011) 11 SCC 275] considered the telephonic conversation recording. It concluded that a disc containing a recording of a telephonic conversation could be valid evidence according to Section 3 of the Evidence Act and Section 2 (t) of the IT Act. The Supreme Court also observed that electronically recorded conversation is admissible in evidence if the conversation is relevant to the matter in issue, the voice is identified, and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation.

Admissibility of phone recordings in matrimonial disputes

In matrimonial disputes, the spouse submits phone recordings before the court that contain the material evidence relevant to the matter, such as phone calls with paramours, talking ill of the spouse or in-laws with parents, etc.

The phone calls were recorded and obtained without the other spouse’s consent, so it may become contentious whether the same is admissible or not. The American judicial system follows the concept “fruit of the poisonous tree”, meaning that evidence obtained by illegal means is inadmissible. In India, the 94th Law Commission Report suggested that the Parliament bring similar provisions into our legal system, which the Parliament did not accept. The Supreme Court discussed the 94thLaw Commission Report in State of M.P. v. Paltan Mallah, [(2005) 3 SCC 169], distinguished from that place and has categorically held that the evidence collected illegally or in violation of the procedural law will not become inadmissible unless serious prejudice is caused to the accused.

Indian courts have taken the view that no law in force excludes relevant evidence on the ground that it was obtained under an illegal search or seizure or was otherwise illegally obtained. (RM Malkani v. State of Maharastra (supra)).

However, in matrimonial disputes or proceedings, the phone recording between husband and wife being produced before the court as evidence is often contested by the spouse against whom the evidence is being admitted on the ground of Section 122 of the IE Act, which provides that:

 “122. Communications 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 committed against the other.”

But the section itself limits the application of privilege to non-matrimonial disputes, and Section 14 of The Family Courts Act, 1984 provides that:

 “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). -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).”

• In Rayala M. Bhuvaneswari vs Nagaphanender Rayala[AIR 2008 AP 98], Andhra Pradesh High Court held that “..the act of tapping 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, these tapes, even if true, cannot be admissible in evidence. Hence, Ex.P-18 itself is not admissible in evidence and there is no question of forcing the wife to undergo a voice test and then ask the expert to compare the portions denied by her with her admitted voice.”
• In Havovi Kersi Sethna v. Kersi Gustad Sethna [2011 SCC OnLine Bom 120], a divorce dispute wherein the husband relies upon a CD containing the call recordings between the wife and himself, the Apex Court while dealing with the issue of admitting phone recording held that “The appreciation of evidence would require consideration of the aforesaid three requirements; identification, relevancy and accuracy. It is left to the Defendant to pass those tests. If the tests are not passed, the tape recorded conversation would be of no use in effect ultimately.” and granted the husband prayer to get the voice recording on the CD verified from the expert.
• However, Rajasthan High Court, in the case Vishal Kaushik v. Family Court & Anr. 2015 Raj HC concurred with the Andhra Pradesh High Court’s view in the Rayala Case by pronouncing that a conversation tape recorded by a husband without the wife’s consent between the spouses cannot be received as evidence before the court as it is a violation of privacy, right to which is enshrined in Article 21 of the Constitution.
•  In Preeti Jain v. Kunal Jain &Anr. [2016 SCC OnLine Raj 2838] Rajasthan High Court has held that the ‘privilege’ in respect of husband-and-wife communication under section 122 of the IE Act is eclipsed by section 14 of the Family Courts Act 1984.

In a recent case, Deepti Kapur v. Kunal Julka [2020 SCC OnLine Del 672] wherein 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, on the phone and talking about the husband and his family in a manner, which the husband claims was derogatory, defamatory and constituted cruelty to him, the Delhi High Court upheld the decision of the Family Court against which the appeal was filed that the call recordings, though recorded without the wife’s consent would be admissible before the court as it is relevant to the proceedings as understood in section 5,7 & 8 of IE Act. However, appropriate legal proceedings can be initiated against the husband for violating the wife’s privacy. The Delhi High Court simultaneously also recorded that

 “39. 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.”

Conclusion

Generally, the courts have allowed the call or phone recordings to be admitted as evidence in the proceedings given that it adheres to specific conditions of identification, relevancy, etc., provided in the pronouncements themselves, as mentioned above, irrespective of the fact whether they were obtained without the consent or not. However, specifically concerning the matrimonial disputes, there is no definite ruling, and the High courts appear to have divided opinions on this; where on the one hand, Andhra Pradesh and Rajasthan High Courts have denied admitting call recordings obtained or recorded without the spouse’s consent, the Bombay and Delhi High court seems to have a contrary view that it should be admitted. Still, the spouse producing the phone conversation recorded without the opposite party’s consent should be proceeded against in a court of law for violation of privacy. The opinion of Delhi and Bombay High Court concerning the matrimonial dispute seems to be more in line with the decision of the Hon’ble Supreme Court on the point of admitting the recorded conversations.

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