Whether conversation tape recorded by husband without wife's consent or without her knowledge, can be received in evidence?
tendency to disturb a person's tranquility. It may
generate many complexes in him and may even
lead to psychological problems. He may,
thereafter, have a disturbed life all through. In the
face of these potentialities, and as already held
by this Court in its various decisions referred to
above, the Right of Privacy is an essential
component of right to life envisaged by Article 21.
The 'right, however, is not absolute and may be
lawfully restricted for the prevention of crime,
disorder or protection of health or morals or
protection of rights and freedom of others."
Aspect about admissibility of evidence with reference to
provisions of Indian Evidence Act, 1872 has indeed been diluted by
Section 14 of the Family Court Act. The question, which still arises in the
present case, is whether conversation tape recorded by the husband
without wife's consent or without her knowledge, can be received in
evidence and be made use of against her? That question has to be
answered in an affirmative 'no', as recording of such conversation had
breached her “right to privacy”, one of the facets of her 'right to liberty'
enshrined under Article 21 of the Constitution of India. The exception to
privileged communication between husband and wife carved out in
Section 122 of the Indian Evidence Act, which enables one spouse to
compel another to disclose any communication made to him/her during
marriage by him/her, may be available to such spouse in variety of other
situations, but if such communication is a tape recorded conversation,
without the knowledge of the other spouse, it cannot be, admissible in
evidence or otherwise received in evidence. The argument that this
would defeat right of fair trial of the petitioner-husband, proceed on the
fallacious assumption of sanctimony of the method used in such
recording and in that process, ignores the right of fair trial of the
respondent-wife. In a case like present one, husband cannot be, in the
name of producing evidence, allowed to wash dirty linen openly in the
Court proceedings so as to malign the wife by producing clandestine
recording of their conversation.
In view of above, this Court is inclined to concur with the
view taken by Andhra Pradesh High Court in Smt. Rayala M.
Bhuvaneswari(supra) that recorded conversation between the
petitioner and the respondent, even if true, cannot be admissible in
evidence and that the respondent-wife cannot be forced to undergo
voice test and expert cannot be asked to compare CDs, which
conversation has been denied by her.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR.
ORDER
S.B. CIVIL WRIT PETITION NO. 14726/2013
WITH
S.B. CIVIL MISC. STAY APPLICATION NO. 12315/2013
VISHAL KAUSHIK
VS.
FAMILY COURT & ANOTHER.
DATE OF ORDER : 26.05.2015
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
REPORTABLE
Citation; AIR 2015 RAJ146
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