Case Title:
Dharmesh Sharma Versus Tanisha Sharma
Date of Order:
17th October 2024
Bench:
The Hon’ble Mr. Justice Bipin Chander Negi
Subject:
This case examines the Himachal Pradesh High Court's decision to reject a petitioner’s application to submit a secretly recorded phone conversation as evidence in a matrimonial case. The Court ruled that the recording, obtained without the respondent's consent, violated her fundamental right to privacy under Article 21 of the Constitution.
Important Provisions
Article 21: Right To Life
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Section 65B of The Evidence Act- Admissibility of electronic records.
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, --
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; --
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation. -- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.
Section 14 Family Court Act- Application of Indian Evidence Act, 1872
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, 1872 (1 of 1872).
Introduction
This instant case if of Dharmesh Sharma vs. Tanisha Sharma, wherein a petition where the petitioner has filed an appeal challenging an order issued by the trial court. The application filed by the petitioner in the trial court was dismissed and the record telephone conversation between respondent Tanisha Sharma and her mother was disallowed during the pendency of the matrimonial dispute.
In the above conversation, the petitioner Dharmesh Sharma prayed that may be placed on record under Section 65B of the Indian Evidence Act read with Section 14 of the Family Court Act. Questions of law here again related to the legality of private conversation recording and the conditions for the admissibility of such recordings as evidence.
Facts of the Case
This is a matrimonial dispute between Dharmesh Sharma, petitioner versus Tanisha Sharma, respondent. In the proceedings, the petitioner had before it placed a recorded conversation allegedly between the respondent and her mother, as being relevant and pertinent to the case.
It was pleaded that the said recording was without the consent of the respondent, after which the trial court dismissed the application filed by the petitioner for admission of the recording as evidence. The petitioner is before the High Court by a writ of appeal directed against the impugned judgment and order of the trial court.
In the aforementioned appeal, this court is tasked to consider whether the recording could be accepted as evidence under the provisions of Section 65B of the Indian Evidence Act, where the admissibility of electronic records is statutorily regulated.
The application had been moved in the context of matrimonial litigation that is subjudice. The petitioner thought the conversation could just set the matter between parties, but the crux of the matter remains one whether the recorded conversation is lawful and does not infringe upon the respondent's fundamental rights.
Contentions of the Petitioner
The petitioner argued the conversation was essential and should be admitted as evidence. He believed that it was material information on how the respondent had conducted himself in the case, which needed to be established between the parties. As such, the conversation had great probative value, and admitting it would make it easy for the court to deliver a just judgment.
Section 65B of the Indian Evidence Act was relied upon by the petitioner in support of his application. That provision reads: Electronic records such as telephone conversations are deemed to be relevant and admissible evidence if specific requirements are followed.
It is submitted that the recording is found to fulfill the requisite technical requirements and should, therefore, be admitted by the court. Further, it is pointed out by the petitioner that the evidence is lawfully obtained and relevant to the ongoing matrimonial proceedings.
Contentions of the Respondent
The respondent contested the taped discussion, claiming that it infringed upon her basic right to privacy. Further, she also contended that the telephone discussion was private and done without her agreement, thereby infringing upon her rights under Article 21 of the Constitution of India. This article examines the rights to life, personal liberty, and privacy.
She argued that if the recordings were acquired unlawfully, they would be deemed inadmissible according to the legal standards established for electronic evidence, specifically Section 65B of the Indian Evidence Act.
She contended that the interception or recording of any communication would necessarily require consent and that they must also follow law-abiding procedures for such recording. She asserted that since the recording in question was obtained illegally, it would fall under the grounds of illegality, and the same would, therefore, be excluded from evidence.
But above all, the respondent is banking on a number of judicial precedents in relation to the right to privacy that relate to telephone conversations specifically. She refers to judicious decisions that have classified private conversations as sacrosanct and the situations that allow their interception and/or recording.
Court's Analysis
While analyzing the case, the Court recognized the right to privacy as a basic right. It emphasized that the right to privacy includes the ability to make phone conversations inside the walls of one's home or workplace without being interrupted. The Court maintains that this is a basic part of the right to life and personal liberty as contemplated in Article 21 of the Constitution of India.
In PUCL v. Union of India (1997), the Court quoted the landmark decision that the right to privacy incorporates the right to private telephone conversations. It acknowledged the fact that the right, which has been so pronounced, would be opposed to it if the state and other third parties intercept talks in violation of settled legal procedure. In the case at hand, the Supreme Court has relied on K.S. Puttaswamy & Anr. v. Union of India, wherein it held that privacy falls within Article 21 of the Constitution of India.
The procedural protection available under Section 65B of the Indian Evidence Act in relation to the reception of electronic documents was held relevant by the High Court.
While the section provided for admissibility in the electronic evidence if all the requirements are met, the Court clarified that the legality in the method of obtaining it is not changed. According to the findings of the Court, telephone conversation without the consent of the respondent was an invasion of privacy.
The Court further asserted that whereas electronic evidence can, under Section 65B, be admitted in a court if it satisfies its technical conditions, it, in no way, bypasses the fundamental rights enjoyed by the parties involved in a case. In this matter, the respondent's privacy right was infringed in respect of an unauthorized record of a private conversation held with him. The very record was declared inadmissible.
While making the above ruling, the Court also deliberated upon wider ramifications of its judgment upon the protection of privacy in the digital era. The Court mentioned that with advancing technology, it becomes possible to invade one's privacy, and the courts have to ensure that the fundamental rights of the individual are not undermined or violated through unlawful surveillance and interception of private communications.
Conclusion
In reaching this conclusion, the court considered that in view of the fact that such a recording is illegal, the privacy rights of the respondent were breached when it was made without her consent so the application had no merit. The petition is thus dismissed and the order of the trial court in dismissing the application upheld.
The Court further vacated the interim order that had been passed earlier allowing for the temporary admission of the evidence. It directed the parties to appear before the trial court on 5th November 2024 and left the matter to proceed accordingly.
