CASE ANALYSIS
DEEPTI KAPUR vs KUNAL JULKA
CM(M) 40/2019 Delhi High Court decided on 30.06.2020
MOOT POINTS:
- EVIDENCE HOW OBTAINED IS IMMATERIAL AS FAR AS ADMISSIBILITY OF THE EVIDENCE IS CONCERNED. EVIDENCE OBTAINED ILLEGALLY IS ALSO ADMISSIBLE. ANY ILLEGAL ACT MAY BE PUNISHED IN ACCORDANCE WITH LAW.
ANY EVIDENCE COLLECTED BY BREACH OF SOMEONE’S PRIVACY DOES NOT AUTOMATICALLY MAKE IT INADMISSIBLE IN COURT.
Brief Facts of the Case:
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. 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. Aggrieved by the order of the family court the wife moved an appeal before the High Court.
Issue before the High Court:
The essential question raised in the present proceeding is as regards:-
1. 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.
2. The admissibility of Evidence 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.
Judgment of the Court:
The Court while delivering the judgment analyzed the various statutory provisions as well the judicial precedents given by the apex court and various high courts. The court upheld the lower court’s decision and made the following observations-
While dealing with the issue of recording of evidence in breach of privacy, the court observed that :
“It is crucial to note however, that at the time that the decisions in M.P. Sharma & Ors. vs. Satish Chandra & Ors. and subsequently in Pooran Mal case 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 case, 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 case and Pooran Mal case, 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 would be admissible, whether or not the same is otherwise relevant or admissible under the Evidence Act.
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.
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.
In fact, the rule of evidence that the test of admissibility of evidence is only its relevancy, laid down inter-alia in Pooran Mal case has been followed by our courts even after Puttaswamy case.”
Dealing with scope and purport of section 14 and 20 of the Family Courts Act vis-à-vis the Evidence Act the court observed:
“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.”
“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.”
“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.”
Finally the court laid sown some safeguards which 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.”
Conclusion:
Therefore evidence even if collected in breach of a privacy of an individual or if the method of obtaining the evidence is irregular or illegal it does not make the evidence per se inadmissible. The person who collected the evidence in an illegal manner may be punished for such wrongful act under the provisions of law but will not make the evidence in admissible in court because the manner in which it was obtained might be wrong but the evidence per se if is legit it ought to be used to ensure fair trial. Since right to privacy is not absolute it has to be balanced with right to fair trial thereby making way for admission of such type of evidences.
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