By Aayushi Swaroop
Introduction
In Neha v. Vibhor Garg, a divorce petition was filed pursuant to which the husband produced the telephonic conversation of the wife to establish the case of cruelty by the wife. To this, the High Court stated that the same is an infringement of the right to privacy of the wife and cannot be admitted as evidence.
The concept which the aforesaid judgment reflects is that, certain communications like the one between the spouses are ‘privileged’. Privileged communication, as the law recognizes, are those communications which by its evidentiary standards may be highly probative and trustworthy and are, thus, excluded from being disclosed in the Court of Law. This is done to protect those relationships which the society deems worthy of protecting and fostering. On the same line, communication between the husband and the wife are considered as privileged so as to maintain peace and harmony within the venerated institution of marriage.
But, as much as it is important to preserve marital bond, it is essential to recognize divorces in a positive way. Where the relationship between the spouses has become estranged on grounds like cruelty, adultery or irretrievable breakdown, divorce becomes a significant step to help heal and move towards a better future. On that note, the current paper seeks to analyze- firstly, whether presenting telephonic conversation, which was recorded without the knowledge of the other spouse, should be admissible evidence or not; secondly, whether this raises privacy concerns or not.
Understanding the case
In Neha v. Vibhor Garg a divorce petition was filed under Section 13 of the Hindu Marriage Act, 1955 (HMA). To prove the case of cruelty, the husband produced the Compact disc containing the recorded telephonic conversation between the husband and the wife. The same was admitted by the District Court. The wife challenged the order of the District Court in the Punjab and Haryana High Court stating that disclosure of the said disc which was recorded without the consent of the wife is clearly an infringement of her privacy rights.
To support her case, Learned Counsel on behalf of the Petitioner (the wife) cited several cases like the People’s Union for Civil Liberties v. UOI where it was held that telephone-tapping would lead to an infringement of privacy as it is a part of a man’s private life. In Dr. Tripat Deep Singh v. Dr. (Smt.) Paviter Kaur it was held that conversations between husband and wife in daily routine cannot be made a decisive factor in deciding a case under Section 13 of HMA.
Recently, the Supreme Court issued a notice in a Special Leave Petition challenging the order given by the aforesaid High Court.
Interpretation of Relevant Legal Provisions
Section 14 of the Family Courts Act, 1984 states that any evidence may be produced before the Family Court to assist the Court in effectively dealing with the issue at hand. The entire idea behind these provisions is to ensure a just and fair trial of the matter. However, Section 14 speaks only about the forms of evidence. It is silent on the question of consent in recording phone calls. Therefore, where the specific law is silent on a point, reference has to be made to the general law, i.e. the Indian Evidence Act.
Section 122 of the Evidence Act, 1872 states that a married person cannot be compelled to disclose or shan’t be permitted to disclose communications made during the marriage. This provision guarantees that spouses may rely on the confidence of the marriage relationship and thereby the public interest is served. However, such communication is subject to certain limitations: firstly, where the other spouse has consented to the disclosure; secondly, where spouses are against one another in a suit. In such circumstances, the harmony in the relationship is presumed to be dissolved; thirdly, where one spouse is being prosecuted for committing an offence against the other spouse.
The ‘privilege’ doesn’t decide the admissibility of any evidence but is an important qualification for it. In Deepti Kapur v. Kunal Julka, the Court affirmed that merely because evidence has been collected by breaching someone’s privacy rights, doesn’t make the evidence inadmissible. But the same will not be considered as direct proof of the fact, rather it will be merely put upon record to comprehensively assess the issue at hand.
Thus, under Section 122 what needs to be decided is, firstly, whether a piece of evidence qualifies as privileged or not and; secondly, whether the evidence should be set aside or excluded completely. In the case of Yusufalli Esmail Nagree v. The State of Maharashtra it was held that where the tape-recording produced before the court of law hasn’t been tampered with, it can be admitted as evidence even if it has been recorded without the consent of the other person.
Learning from the US Courts
There are several instances when Indian Courts have delivered judgments inspired by the case laws prevalent in other jurisdictions. Certain significant instances are the decision of Triple Talaq in which the Supreme Court relied on the US Supreme Court’s verdict in the case of Kovacs v. Cooper. Again, while holding the decision on death sentence, reliance was placed on the US Supreme Court’s decision of Furman v. Georgia, and Proffitt v. Florida. To adopt and implement the best practice, judges often make a comparative study of different jurisdictions to reach a fruitful conclusion.
In the present issue, the US case of United States v. McMillan dealt with a similar issue where a telephonic conversation was secretly recorded and used as evidence in the Court. The Court affirmed that as long as the person who recorded the conversation without the knowledge of the other person is a party to the conversation, the telephone recording would be admissible as evidence in the Court of Law as it hasn’t been recorded illegally.
In another case of Jones v. University of Warwick, the facts were such that evidence produced before the court as evidence was recorded illegally by entering the house of the claimant unlawfully. The Court held that since the recording formed a part of the evidence of both the parties involved therein and is an accurate representation of the communication, therefore it would be admissible. Also, as the defendant had recorded the footage illegally, he was penalized for the same.
Privacy Concerns and Concluding Remarks
The Indian Constitution provides for the fundamental right to privacy as a part of the right to life under Article 21. However, no right in civil society can ever be absolute. Thus, the right to privacy shouldn’t be read in a manner that it is adverse to the notion of justice and fairness. Even the International Conventions to which India is a signatory recognizes the same idea, i.e. Article 17 of the International Covenant on Civil and Political Rights, 1966 and Article 12 of the Universal Declaration of Human Rights, 1948 bans only ‘arbitrary or unlawful’ interference in someone’s privacy.
Marriage is a sacrosanct institution wherein confidentiality between the parties is revered. So, the events and conversations taking place in matrimonial homes are away from the eyes of the public making it difficult to prove the grounds of divorce due to lack of sufficient evidence. Therefore, it is only prudent to make use of technologies like voice-recordings to prove facts that cannot be otherwise proved. Like, in the present case where the husband used the recorded telephonic conversation to establish his case of mental cruelty.
This is very well within the scope of: firstly, Section 122 of the Evidence Act which clarifies that communications made between the spouses would qualify as evidence if the spouses are against one another in a suit; secondly, Section 14 of the Family Courts Act also permits the production of evidence in any form; thirdly, right to privacy under Article 21 of the Constitution which is not an unfettered right and so maintenance of confidentiality shouldn’t go to the extent of causing prejudice to a person producing genuine evidence.
However, the same should be subjected to certain restrictions so as to not violate the national and international laws on privacy. Firstly, the person who records the conversation without the knowledge of the other person should be a party to the conversation. Secondly, such recordings must not be obtained illegally, i.e. intrusion into someone’s privacy mustn’t be arbitrary and unlawful. Thirdly, the court must apply the rule of fairness to establish whether such evidence should be set aside or be excluded completely. The Court also needs to ensure that such evidences aren’t the sole ground for deciding the case. Lastly, such recordings need to satisfy the three requirements laid down in RM Malkani v. State of Maharashtra to make a tape recording admissible: a) relevance of such recording with respect to the facts of the case; b) voice identification and; c) the accuracy needs to be confirmed to determine its genuineness.
From the above discussion, it can be deduced that the Punjab and Haryana High Court in Neha v. Vibhor Garg adopted a narrow and restricted approach with regard to right to privacy and evidentiary value of telephone recordings. Therefore, reconsidering or revisiting the case was crucial to gain a holistic understanding of the matter.
The author is a 4th-year law student at NUSRL, Ranchi.
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