RECORDING WIFE’S PHONE SECRETLY IS A VIOLATION OF HER RIGHT TO PRIVACY AND CANNOT BE ACCEPTED AS EVIDENCE: P&H HC

In a clear, cogent, commendable, composed and convincing judgment titled Neha vs Vibhor Garg in CR No. 1616 of 2020 and CR No. 2538 of 2020 (O&M) that was delivered finally on 12.11.2021, the single Judge Bench comprising of Justice Lisa Gill of the Punjab and Haryana High Court while hearing a matrimonial dispute matter has held categorically that recording of telephonic conversations of the wife without her knowledge amounts to infringement of her privacy and the transcripts of such conversations cannot be accepted as evidence by Family Courts. It must be mentioned here that the husband had filed for divorce from the woman in 2017 to whom he was married in 2009 and the couple has a daughter. We thus see that the Punjab and Haryana High Court Bench set aside the 2020 Bhatinda Family Court order which had allowed the husband to prove the telephonic conversation between him and his wife to make out a case of cruelty against his wife. The husband had filed a divorce suit under Section 13 of the Hindu Marriage Act.

In hindsight, we saw earlier also how Justice Arun Monga of the Punjab and Haryana High Court had in 2020 asserted quite unequivocally that, “The act of clandestinely recording conversation would, rather, amount to infringement of privacy rights.” In no uncertain terms, Justice Arun had also very rightly underscored that, “An undercover conduct of the husband to record private spousal conversation without knowledge of the other is an infringement of privacy and can hardly be appreciated.”

To put things in perspective, the Single Judge Bench comprising of Justice Lisa Gill of the Punjab and Haryana High Court said that though a Family Court is not bound by strict rules of evidence, it is not at liberty to accept a CD containing secret recordings of wife’s telephonic conversation in evidence which is a clear cut infringement of the right of privacy of the wife. Justice Lisa Gill also said quite emphatically, elegantly, eloquently and effectively that, “Recording of telephonic conversation of the wife without her knowledge is a clear cut infringement of her privacy…it cannot be said that as the Family Court is not bound by strict rules of evidence, it is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of the wife.” Very rightly so!

It may be recalled that the Punjab and Haryana High Court was hearing two petitions – one that was filed by the husband and the other filed by the wife. The wife had challenged an order of the Bathinda Family Court clearly allowing the husband to finally reproduce telephonic recordings of their conversation. The husband on the other hand, had sought expeditious disposal of his divorce petition.

Needless to say, the main issue that was before the Punjab and Haryana High Court to adjudicate upon was whether the order of the Family Court allowing the husband to produce recordings of the conversations between him and the wife was against the fundamental right to privacy of the wife. The petitioner-wife minced just no words to argue vehemently that the evidence sought to be led by the husband was completely beyond pleadings and, therefore, absolutely impermissible. It was pointed out that the pleadings did not refer to any such conversations which were sought to be proved. It was also submitted that therefore, the evidence was wrongly allowed by the Family Court.

As it turned out, the Bench stated at the outset that even if the general averments in the petition about cruelty were proven by the evidence requested to be supplied, the CDs in question could not be admitted in evidence. The Bench also went on to say in this regard that recording the wife’s telephonic discussion without her consent is a clear cut breach of her privacy.

To start with, the single Judge Bench of Justice Lisa Gill who authored this extremely learned, laudable, latest and landmark judgment sets the ball rolling by first and foremost observing in the opening para that, “This matter is being taken up for hearing through video conferencing due to outbreak of the pandemic, COVID-19. This order shall dispose of CR No.1616 of 2020 and CR No. 2538 of 2020. CR No. 1616 of 2020 has been filed by the petitioner (wife) arrayed as respondent in the petition under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) filed by the husband before the learned District judge, Panchkula, challenging order dated 29.01.2020, passed by the learned Principal Judge/Family Court, Bathinda, whereby the husband has been allowed to prove the Compact Disc (for short ‘CD’) pertaining to conversation between him and the wife subject to the condition of its correctness.”

Furthermore, the Bench then states that, “CR No. 2538 of 2020 has been filed by the husband, seeking direction to the learned Family Court to expedite proceedings in the petition under Section 13 of the Act, in a time bound manner. This revision petition was directed to be listed along with CR No. 1616 of 2020.”

While elaborating on the facts, the Bench then observes that, “Brief facts of the matter as emanating from CR No. 1616 of 2020 are that petition under Section 13 of the Act was filed by the respondent-husband seeking divorce on various grounds. Marriage between the parties was solemnized on 20.02.2009. A daughter was born out of the wedlock on 11.05.2011 and petition seeking divorce filed in the year 2017. An amended petition was filed on 03.04.2018. Husband submitted his affidavit by way of evidence in chief on 07.12.2018. When the matter was listed for cross-examination, an application was moved by the husband on 09.07.2019 seeking permission to submit his supplementary affidavit by way of examination-in-chief along with CD and transcriptions of conversations so recorded in the memory cards/chips of the respective mobile phones. Reply was filed to the application. Application dated 09.07.2019 was allowed by the learned Family Court vide impugned order dated 29.01.2020 while observing that the husband is allowed to prove the CD pertaining to the conversations between him and his wife subject to the condition of correctness and that strict principles of evidence are not applicable to the proceedings before the Family Court keeping in view Section 14 and 20 of the Family Court Act.”

Of course, the Bench then mentions that, “Aggrieved therefrom, CR No. 1616 of 2020 has been filed by the wife.”

After hearing the learned counsel for the parties, the Bench then while noting this and also that the files have been gone through with their able assistance goes on to observe that, “Respondent-husband in this case filed a petition under Section 13 of the Act, seeking dissolution of marriage by decree of divorce on various grounds. Admittedly, there is no mention of the conversations recorded by the husband between the years 2010 to 2016 in the said petition. There is no mention on these conversations in the amended petition filed on 03.04.2018 as well. It is further a matter of record that in the affidavit filed by the husband by way of examination-in-chief, there is again no mention of these conversations. It is only on 09.07.2019 that an application is moved by the husband to submit his supplementary affidavit by way of examination-in-chief along with memory cards/chips of the respective mobile phones, CD and transcript of alleged conversation/s so recorded in memory cards/chips of the respective mobile phones. It is stated in application dated 09.07.2019 that various conversations between the husband and his wife from November 2010 to December 2010, August 2016 to December 2016, were recorded and stored/procured by him. These conversations were further recorded on CD for convenience. It is further averred that due to inadvertence, specific mention of these conversations has not been made in the earlier affidavit. It is thus evident that the husband was well aware of these conversations which could very well have formed part of the pleadings at the very outset, but clearly did not find mention. Furthermore, there was no averment regarding these conversations in the amended petition or even in the affidavit dated 07.1.2018 tendered in examination-in-chief. Moreover, even if it is accepted that the general averments in the petition regarding cruelty would very well cover the evidence sought to be produced, in my considered opinion the CD’s in question cannot be permitted in evidence. This is so for various reasons as delineated in the following paras.”

As we see, the Bench then stipulates that, “Before proceeding further it is relevant to note that without doubt provisions of the Indian Evidence Act, 1872, have been diluted by Section 14 of the Family Court Act, which reads as under:-

“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.””

To be sure, the Bench then holds that, “Clearly, the technicalities and procedures otherwise followed by the Civil and Criminal Courts may not be applicable to proceedings before the Family Court. There is in-fact no quarrel with argument of learned counsel for the respondent that a Family Court is not bound by strict rules of evidence.”

While continuing in the same vein, the Bench then hastens to add that, “At the same time, it cannot be ignored that acceptance of the CD in question shall amount to a clear breach of fundamental right of the petitioner-wife i.e., her right to privacy, as has been upheld in various judicial pronouncements. The Hon’ble Supreme Court in People’s Union for Civil Liberties Vs. Union of India, (1997)1 SCC 301, has observed as under:-

“18. The right to privacy-by-itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.””

As a corollary, the Bench then holds that, “Thus, recording of telephonic conversation of the wife without her knowledge, is a clear cut infringement of her privacy.”

In addition, the Bench then clearly also points out that, “Furthermore, it cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptitiously by one of the parties. A Coordinate Bench of this High Court in Deepinder Singh Mann Vs. Ranjit Kaur, 2015 (5) RCR (Civil) 691 in this respect has observed as under:-

“3. As an aside I would say that there are voice changing software available on the Net waiting to be downloaded to be applied in hiding or creating identities, creating true or false evidence, making room for impersonation, deceit and the like, which may be hard to crack without special detection by experts specially trained in this evolving field of investigation when experts are not easily found or available presently in courtrooms which remain severely handicapped and ill equipped with newfangled tools for use or misuse of modern science and technology and to easily apply to a case in hand the repercussions of which may be far reaching and beyond one’s ken. It would be a rather dangerous trend to allow people to be fixed or exposed on Audio CDs obtained by malfeasance, in its object of collecting evidence and the secretive means adopted to achieve a lawful or an unlawful end. The computer age is a dangerous age. The mobile phone or electronic gadgets should not be readily allowed to be used as an instrument of torture and oppression against a wife in a matrimonial action unless the court in satisfied that it might tilt the balance between justice and injustice in its cumulative judicial experience, wisdom and discretion in decision making. A married woman too has a valuable right to her privacy of speech with her husband in the confines of the bedroom. Couples speak many things with each other unwary that every word would be weighed one day and put under the judicial scanner. Courts should be very circumspect in such matters before allowing such applications as presented in this case. The Courts cannot actively participate in approving mischief and invite invasion of privacy rights not called for in deciding a case where parties are free to adduce evidence aliunde which may or may not be sufficient to obtain a decree of dissolution of marriage. Fools rush in where angels fear to tread.”