Family Court, Patiala House
Family Court, Patiala House
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Are Family Courts empowered to receive evidence that is collected in breach of privacy of a party? Delhi HC answers

In a contest between the right to privacy and the right to fair trial, the right to privacy may have to yield to the right to fair trial, the Court has stated.

Aditi Singh

The Delhi High Court has held that even if the evidence is collected in breach of privacy of a party, Section 14 of the Family Court Act empowers the Family Court to receive the same for the purpose of a case before it. (Deepti Kapur vs Kunal Julka)

"In 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.", the Court stated.

The judgement was passed by a single Judge Bench of Justice Anup J Bhambhani.

The Respondent-Husband had filed a petition before the Family Court for dissolution of his marriage on the ground of cruelty available under section 13(1)(ia) of the Hindu Marriage Act, 1955.

During the divorce proceedings, he filed a Compact Disc (CD) purporting to contain an audio-video recording of the Petitioner-Wife supposedly speaking with her lady friend on phone about the husband and his family in an allegedly derogatory, defamatory manner which constituted cruelty to him.

In her written statement before the Family Court, the Petitioner-Wife opposed the taking on record of the CD.

It was submitted that first, the contents of the CD were tampered; and secondly, the contents of the CD were not admissible in evidence since they were a recording of a ‘private’ conversation which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.

Pursuant to an application by the Respondent-Husband for the appointment of an expert to prove the genuineness of the CD, the Family Court directed that the contents of the CD be examined by the Forensic Science Laboratory (FSL).

Aggrieved by the order, the Petitioner-Wife moved the High Court, invoking its jurisdiction under Article 227 of the Constitution.

The Petitioner-Wife asserted as follows:

- 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 as the recording is per se illegal.

- In terms of Justice KS Puttaswamy judgment, the Petitioner-Wife had the fundamental right to privacy which was available to a person not only against the State but also against private individuals.

- Although Section 14 of the Family Courts Act 1984 empowered a Family Court to receive evidence if in its opinion such evidence assisted it to deal effectually with a dispute, whether or not the same is otherwise relevant or admissible under the Indian Evidence Act 1872, the Section did not permit evidence which is inadmissible “as per the Constitution”.

- The husband’s action of surreptitiously and clandestinely recording the wife's telephone conversation with her friend amounted to an offence under section 354-D of the Indian Penal Code 1860.

The Respondent-Husband argued as follows:

- Right to Privacy is not absolute but is subject to exceptions and the Petitioner-Wife's right to privacy must give way to the Respondent-husband's right to bring evidence to prove his case.

- Section 14 of the Family Courts Act specifically empowered 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.

Discussion and Conclusion:

Stating that the law in India in relation to ‘admissibility’ of evidence was "crisp, clear and consistent", the Court analysed the judgments passed by the Supreme Court on the issue, including the 5-Judge Constitution Bench decision in Pooran Mal vs. The Director of Inspection (Investigation), New Delhi & Ors.

Quoting from the Suprme Court's judgment, the Court recorded that unless there was an express or necessarily implied prohibition in the Constitution or other law, evidence obtained through illegal means was not liable to be shut out.

In view of the above and the fact that Puttaswamy did not deal with the law and principles of evidence in the context of the right to privacy, the Court opined,

.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 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.
Delhi High Court

It is the rule of evidence that the test of admissibility of evidence is only its relevancy, the Court added.

The Court further discussed the scope and purport of section 14 of the Family Courts Act and observed that the Legislature expanded the scope of the Section in order to free it of "all rigours and restrictions of the law of evidence."

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.. 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.
Delhi High Court

Therefore, the Court opined that without denigrating the importance of ethical and moral considerations, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected would be in breach of Section 14, settled principles of evidence and Supreme Court's enunciation that Right to privacy was not absolute.

Stating that an opinion to the contrary would render section 14 nugatory and dead-letter, the Court remarked,

"Family Courts have been established to deal with what are essentially sensitive, personal disputes.. 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."

The Court then proceeded to list certain safeguards that were required to be considered by the Family Court while exercising its power to receive evidence under Section 14.

These safeguards are as follows:

- Family Court must be extremely circumspect in what evidence it chooses to rely upon in deciding the dispute, particularly its authenticity and genuineness.

- If in its opinion the nature of the evidence is inappropriate, embarrassing or otherwise sensitive in nature for any of the litigating parties, the court may restrict the parties who are present in court at the time of considering such evidence, may conduct in-camera proceedings etc.

- In egregious cases, the Family Court may initiate or direct initiation of legal action against a litigating party 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.

As far as the present case was concerned, the Court stated that the contents of the CD would be a ‘relevant fact’ in terms of sections 5, 7 and 8 of the Evidence Act and could be received by the Family Court.

However, in view of the manner in which the evidence of collected in the present case, the Court remarked,

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..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.
Delhi High Court

Ultimately, finding no infirmity with the order passed by the Family Court, the Petition was disposed of with the above terms.

The Petitioner-Wife was represented by Advocate Rakesh Vats.

The Respondent- Husband was represented by Advocates Kaadambari Singh Puri, Lovina Ropia.

Read the Judgment:

Deepti Kapur vs Kunal Julka.pdf
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