Secretly recording wife's phone call privacy violation; cannot be accepted as evidence by Family Courts: Punjab & Haryana HC

The Punjab and Haryana High Court recently held 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.

Single-judge Justice Lisa Gill 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.

“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,” the Court said.

The Court was hearing two petitions one filed by the husband and the other by the wife. The wife had challenged an order of the Family Court allowing the husband to reproduce telephonic recordings of their conversation. The husband on the other hand, had sought expeditious disposal of his divorce petition.

The main issue before the Court 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 argued that the evidence sought to be led by the husband was completely beyond pleadings and, therefore, absolutely impermissible.

It was pointed out that pleadings did not refer to any such conversations which were sought to be proved. Therefore, the evidence was wrongly allowed by the Family Court, it was submitted.

Further, she contended that the CDs containing the transcripts of the conversations were in violation of her right to privacy guaranteed under Article 21 of the Constitution, as the conversations had been recorded without her knowledge or consent.

“The learned Family Court has given a complete go bye to Section 65 of the Indian Evidence Act, because if recording has been done through a mobile phone, CD’s of the recording and transcripts thereof in any case, cannot be accepted as evidence thereof. Moreover, there is non-compliance of Section 65-B of the Evidence Act,” she contended

It was alleged that the conversation sought to be reproduced before the Court took place years before the divorce petition was filed, and the veracity of such conversations cannot be vouched for even if taken to be correct. The same are not even admissible in evidence having been recorded without the consent or knowledge of the petitioner, it was added.

The husband opposed the arguments, submitting that there is no question of any infringement of the right to privacy and in any case, the husband can always be subjected to a cross-examination.

He argued that conversations so recorded are not beyond pleadings as it has always been his case that he was treated with cruelty by his wife, and the conversations so recorded are only an attempt to prove the same.

It was further urged that in view of Sections 14 and 20 of the Family Courts Act, a Family Court is not bound by strict rules of evidence. Therefore, the Family Court had correctly allowed the application filed by the petitioner and since certificate dated December 16, 2019 was submitted before the learned Family Court, therefore there was sufficient compliance with Section 65-B of the Evidence Act, it was submitted.

One of the main arguments raised by the husband was that the supplementary affidavit along with CD was filed well before the cross-examination of the husband and therefore, no prejudice was caused to the petitioner.

The Court noted the husband has made no mention of the conversations in the form of CDs before the Family Court, since the filing of the original petition to the filing the amended petition. Neither the affidavit filed by way of examination-in-chief, nor the supplementary affidavit by way of examination-in-chief along with memory cards/chips of the respective mobile phones etc. had a mention of the said conversation, the Court noted.

“It is 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. 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,” the Court held.

The Court accepted that as per Section 14 of the Family Courts Act, provisions of the Indian Evidence Act, 1872 have been diluted with respect to procedural mandates applicable to Family Courts.

“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,” the Court said.

However, 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, the Court added.

In this regard, the Court placed reliance on the judgment of the Supreme Court in People’s Union for Civil Liberties Vs. Union of India [(1997)1 SCC 301] wherein it was observed that 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 conversations are a part of modern man’s life, it was held.

The Court also relied on the judgement pronounced of the Rajasthan High Court in Vishal Kaushik Vs. Family Court and another wherein it was held that conversation tapes recorded by the husband without the wife’s consent cannot be received in evidence and be made use of against her, as the same goes against her fundamental right to privacy.

In view of the above, the Court held that a Family Court is not at liberty to accept that CD as evidence since it would amount to a clear cut infringement of the right of privacy of the wife.

It, therefore, set aside the order of the Family Court permitting the same.