Suresh Kumar vs Smt. Aneeta

“17.

At this stage, a segue into how an allegation of adultery can be/is to be proved may be warranted. Evidence is of two types, direct and circumstantial. The former is the kind that establishes, on the face of it, an allegation.

18.

It is obvious that when a case is sought to be proved by circumstantial evidence, it requires a detailed study of the circumstances presented. The evidence furnished in support thereof, including verification, particularly when the evidence in question is electronic, etc. These procedures are bound to take time. Since the stipulation in the Section 125 (4) is that if adultery is proved, the wife would neither be entitled to interim nor final maintenance, we are of the view that if a husband files an application under Section 125(4) and is, at the first instance, able to establish the charge through evidence ex facie, then only, there can be said to be a bar to interim maintenance.

19.

The courts below clearly fell into error to hold that it was only at the stage of final adjudication that such a question could be decided. This view would render otiose what has been provided in the statute.

20.

Applying this understanding to the record, in order to establish that the Respondent No. 2 was living in adultery, the appellant has placed a number of photographs and other evidence. This evidence is obviously electronic in nature. The question that the court must consider at the stage of interim maintenance is whether the evidence so presented establishes adultery. It is obviously open for the Respondent No. 2 to dispute the correctness and legality of the evidence presented, which would then have to be considered by the Court. In that view of the matter, we are of the view that the Trial Court ought to have decided the appellant's application under Section 125(4). It was incorrect for them to have observed that the appellant's application could not have been decided prior to the final adjudication of the application filed by the wife. The second proviso to sub-section (1) of Section 125 provides for interim maintenance; and as such, the logical flow of proceedings would be that once the basic facts are established, an order is made for interim maintenance, and that would continue to operate till the application under Section 125 (4) is decided conclusively. This is in view of the beneficent nature of the provision. This question is accordingly decided. Consequently, the matter stands remanded to the Trial Court to make a decision on the merits since they had in this ^{instance dismissed the application on the threshold. However, the matter does not end there}.”

“42.

The first issue deals with the aspect of the validity of discreetly recorded digital evidence. The second issue deals with spousal privilege under the Evidence Act and the relaxation of the rules of evidence by the FC Act. The last issue deals with the spouse's right to privacy and the ambit of such privacy.

Validity of secretly obtained evidence

43.

This Court has often had the occasion to deal with the issue of using illegal and immoral ways to procure evidence against a person without the knowledge of the person. It is often alleged by accused persons that the investigating authorities did not follow legal methods and procedures to obtain the evidence against them. Sometimes recording devices and phone-tapping mechanisms are resorted to for the purpose of collecting relevant evidentiary material. In such cases, the view taken by this Court has been that merely the fact that an evidence was not obtained strictly in accordance with law does not absolutely bar the admissibility of such an evidence. The Court, while appreciating such evidence, may have to tread with caution and be assured about the accuracy and reliability of such evidence but the said evidence cannot be said to be irrelevant and/or inadmissible merely on the argument that it was illegally obtained.

44.

In Yusufalli Esmail Nagree v. State of Maharashtra [Yusufalli Esmail Nagree v. State of Maharashtra, 1967 SCC OnLine SC 87 : (1967) 3 SCR 720 : AIR 1968 SC 147] (“Yusufalli Nagree”), a three-Judge Bench of this Court was dealing with a case of corruption wherein a conversation was secretly recorded by the police by laying a trap and concealing a microphone in the room of the accused. The conversation was recorded on a tape recorder. The admissibility of this recorded conversation was objected to on the ground that this was recorded without the knowledge of the accused and the accuracy of the conversation recorded on the tape recorded was challenged.

44.1.

This Court, speaking through Bachawat, J., rejected these arguments made by the accused. While this Court refused to lend its approval to the police practice of tapping telephone wires and setting up hidden microphones for the purpose of tape recording, it held that the fact that the tape recording was done without the knowledge of the accused is not in itself an objection to its admissibility in evidence because the accused in this case was free to talk or not to talk; his conversation was voluntary and there was no element of duress, coercion or compulsion. It was further observed that the imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 of the Evidence Act.

44.2.

This Court further observed with respect to the balance to be struck between the relevance and caution while dealing with a tape-recorded conversation as follows: (SCC OnLine SC para 6)

“6.

… If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.” (emphasis supplied)

45.

In furtherance to the above view came the judgment of this Court in R.M. Malkani v. State of Maharashtra [R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 : 1973 SCC (Cri) 399] (“R.M. Malkani”), wherein the validity of a tape-recorded conversation was in question. This Court, while allowing the tape-recorded conversation to be admitted in evidence, observed the following: (SCC p. 477, para 23)

“23.

Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act.”

46.

The aforesaid test laid down by this Court has become a locus classicus on the issue of determining the admissibility of a tape-recorded conversation. The three-fold test of relevance, identification and accuracy has to be satisfied before a court admits a recorded conversation in evidence. However, the fact that the conversation was recorded without the consent and knowledge of the person speaking is not a prohibition on the admissibility of the evidence, as laid down by the Evidence Act and read into the statutory provisions by this Court.

Applicability of Section 122 of the Evidence Act to a proceeding for divorce

47.

As explained above, Section 122 of the Evidence Act deals with two parts — compellability and permissibility. The facts of the present case concern only the applicability of the second part of Section 122 i.e. the one dealing with permissibility. The husband in this case would have ordinarily been barred from disclosing any form of communication that was disclosed by the wife to him by virtue of being a privileged communication under Section 122. But due to the exception provided in that section, the bar on the disclosure of such communication is lifted since the communication sought to be disclosed in the present case is in a proceeding between the husband and the wife i.e. the petition filed by the husband for divorce under Section 13 of the Hindu Marriage Act. Therefore, such a privileged communication is not barred from being disclosed and brought before the Court and the objection taken by the wife with respect to Section 122 of the Evidence Act is not acceptable.

48.

Looking at it from another angle, under Section 122 of the Evidence Act, what is barred in the present case is the disclosure of the communication made by the wife to the husband by the latter standing in the witness box. But the communication that was made to the husband is itself not barred. The phone on which the conversation was recorded is no different from an eavesdropper. The restriction under Section 122 does not apply to the communication that was made by the wife to the husband and the same can also be proved by means other than the husband himself coming to the witness box to disclose that communication. However, the overriding exception in the second part of the section with regard to disclosure in a proceeding between the spouses would apply; and under the exception, the doctrine of privileged communication would not apply.

49.

Section 14 of the FC Act gives a wide discretion to the Family Courts in deciding matrimonial disputes since they can go beyond the strict rules of evidence in terms of relevance and admissibility while admitting any evidence which they think is relevant for the adjudication of the dispute at hand. However, we do not think that adverting to Section 14 of the FC Act is required in the present facts when the Evidence Act itself permits such a communication to be admitted in evidence by way of an exception. The powers under Section 14 of the FC Act would normally be resorted to in a scenario where the Evidence Act creates some prohibition with respect to the relevance or admissibility of any evidence. But if the Family Court is of the opinion that it is expedient to go beyond the procedural technicalities of the Evidence Act for adjudicating the dispute, in such a case, the Family Court is allowed to take that evidence on record, notwithstanding what is stated in the Evidence Act. But the exercise of this extraordinary power under Section 14 of the FC Act is not warranted in this case.

50.

Some arguments have been made by the learned Amicus about the fact that permitting such an evidence would jeopardise domestic harmony and matrimonial relationship inasmuch as it would encourage snooping on the spouse, thereby fracturing the very objective of Section 122 of the Evidence Act. We do not think such an argument is tenable. If the marriage has reached a stage where spouses are actively snooping on each other, that is in itself a symptom of a broken relationship and denotes a lack of trust between them. The said snooping cannot be said to be a consequence of the Court admitting the evidence obtained by snooping. In fact, snooping between partners is an effect and not a cause of marital disharmony. The privacy of communication exists between spouses, as has been recognised by Section 122, but the said right of privacy cannot be absolute and has to be read also in light of the exception provided in Section 122 of the Evidence Act. When Section 122 itself recognises and protects spousal privacy in the first part of the section, then the said right has to be construed in terms of Section 122 only and has to be subject to the exception contained therein. In other words, when the right to privacy of communication between spouses is the very basis of Section 122, then the exceptions to these should also flow only from Section 122 of the Evidence Act.

51.

During the years when this Court decided cases such as Yusufalli Nagree [Yusufalli Esmail Nagree v. State of Maharashtra, 1967 SCC OnLine SC 87 : (1967) 3 SCR 720 : AIR 1968 SC 147] and R.M. Malkani [R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 : 1973 SCC (Cri) 399] , bugging, snooping, tapping were considered acts that had a clear element of invading the privacy of an individual for the purpose of gathering concrete evidence. Devices like tape-recorders and microphones were carefully placed in a space wherein the conversations could be secretly recorded, and the entire process was not as easy as clicking a button on a mobile phone. Even in those times, the courts have encouraged the need for having better evidence for adjudication than to close the doors of technology and refuse to accept the material in front of them on the mere ground that privacy would be breached.

52.

On the other hand, before a court of law, a relevant piece of conversation available on an electronic device should not be allowed to be shut out when it is the best evidence available for deciding the dispute. The erstwhile Evidence Act is a legislation that was more than a century old and therefore obviously could not encapsulate all the technologically varied challenges which the modern technology poses before us. Yet, what the said legislation remarkably conveys is that the purpose of the law of evidence is not to create barriers but to break them to ensure that a clearer picture is created in the mind of the Judge so as to decide a dispute before it. This is why, when the evidence is not direct, the legislation allows a Judge to rely on circumstantial evidence; it allows presumptions of fact and law and adverse inferences to be drawn from the conduct of parties and witnesses so that a fair and reasonable conclusion can be reached from the material on record. Now, in today's day and age, when the technological advancement has made it easier to record and recreate moments of past and present for reference in future, then to say that such better forms of evidence and material would not be admissible on the ground of they being in violation of the right to privacy would amount to defeating the very object of the Evidence Act. That was the reason for Parliament to amend the Evidence Act by incorporating Section 65-B, which specifically deals with electronic evidence. ….. ….. ….. ….. ….. ….. ….. ….. ….. ……

Section 122 of the Evidence Act and Right to Privacy

54.

The learned Amicus as well as the learned counsel and the learned Senior Counsel for the respective parties have relied upon a number of judgments of the High Courts in support of their rival contentions. Having regard to the view which we have taken in the matter, we find that the conclusions arrived at in Preeti Jain v. Kunal Jain [Preeti Jain v. Kunal Jain, 2016 SCC OnLine Raj 2838 : AIR 2016 Raj 153] ; Jil v. State of Gujarat [Jil v. State of Gujarat, 2024 SCC OnLine Guj 4363] ; Essaki Ammal v. Veerabhadra [Essaki Ammal v. Veerabhadra, 2012 SCC OnLine Mad 2093 : (2012) 4 CTC 743] ; Havovi Kersi Sethna v. Kersi Gustad Sethna [Havovi Kersi Sethna v. Kersi Gustad Sethna, 2011 SCC OnLine Bom 120] ; Deepti Kapur v. Kunal Julka [Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672] are just and proper inasmuch as tape recorded/digitally recorded conversation between the spouses was permitted to be let in as evidence in support of the contentions raised by the parties, having regard to the parameters laid out under Section 122 of the Evidence Act.

55.

However, in Anurima v. Sunil Mehta [Anurima v. Sunil Mehta, 2015 SCC OnLine MP 7340] ; Abhishek Ranjan v. Hemlata Chaubey [Abhishek Ranjan v. Hemlata Chaubey, 2023 SCC OnLine MP 7205] by the High Court of Madhya Pradesh at Jabalpur Bench; Saroj v. Aashish Yadav [Saroj v. Aashish Yadav, 2024 SCC OnLine MP 9687] by the High Court of Madhya Pradesh at Indore Bench; Ram Talraja v. Sapna Talreja [Ram Talraja v. Sapna Talreja, 2022 SCC OnLine MP 6115] by the High Court of Madhya Pradesh at Indore Bench; Aasha Lata Soni v. Durgesh Soni [Aasha Lata Soni v. Durgesh Soni, 2023 SCC OnLine Chh 3959] ; Rayala M. Bhuvaneswari v. Nagaphanender Rayala [Rayala M. Bhuvaneswari v. Nagaphanender Rayala, 2007 SCC OnLine AP 892 : AIR 2008 AP 98] ; Deepinder Singh Mann v. Ranjit Kaur [Deepinder Singh Mann v. Ranjit Kaur, 2014 SCC OnLine P&H 4826] ; Tripat Deep Singh v. Paviter Kaur [Tripat Deep Singh v. Paviter Kaur, 2018 SCC OnLine P&H 8244] ; Neha v. State of Haryana [Neha v. State of Haryana, 2020 SCC OnLine P&H 4469] ; Vishal Kaushik v. Family Court [Vishal Kaushik v. Family Court, 2015 SCC OnLine Raj 7851 : (2016) 1 RLW 693] ; Dharmesh Sharma v. Tanisha Sharma [Dharmesh Sharma v. Tanisha Sharma, 2024 SCC OnLine HP 5208] ; and Kethana Lokesh v. Rahul R. Bettakote [Kethana Lokesh v. Rahul R. Bettakote, 2024 SCC OnLine Kar 6368] decided on 19-6-2024 passed by the High Court of Karnataka at Bengaluru, the High Courts declined to permit the conversation recorded by one of the spouses to corroborate the contention as being in violation of the right to privacy under Article 21 of the Constitution of India. Hence, it is necessary to dilate upon the contours of the right to privacy in the context of Article 21 of the Constitution with reference to the recent dicta of this Court rendered by Constitution Benches.

56.

In K.S. Puttaswamy (Privacy-9 J.) v. Union of India [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] (“Puttaswamy”), Chelameswar and Bobde, JJ. enunciated that the constitutional right to privacy under Article 21 is limited to the relationship between the citizen and the State. Bobde, J. (as he then was) drew a distinction between “common law rights” and “fundamental rights” by observing thus: (SCC p. 539, para 397)

“397.

… we can dismantle a core assumption of the Union's argument : that a right must either be a common law right or a fundamental right. The only material distinctions between the two…. lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed. Common law rights are horizontal in their operation when they are violated by one's fellow man, he can be named and proceeded against in an ordinary court of law. Constitutional and fundamental rights, on the other hand, provide remedy against the violation of a valued interest by the “State”,… It is perfectly possible for an interest to simultaneously be recognised as a common law right and a fundamental right.”

57.

However, Nariman, J. in K.S. Puttaswamy [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] observed that Article 21 was couched in a negative form in order to interdict State action that fell afoul of its contours. But right to privacy being a fundamental right could be both against the Government as well as private individuals. The discussion in Puttaswamy [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] was restricted to the right to privacy under Article 21 primarily against State action.

58.

Kaul, J. suggested horizontal application of the right to privacy by holding that: (K.S. Puttaswamy case [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] , SCC p. 620, para 593)

“593.

… (in) today's world, privacy is a limit on the Government's power as well as the power of private sector entities.” Later in the judgment, he concluded that the right to privacy is a fundamental right, and that it: (K.S. Puttaswamy case [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] , SCC p. 634, para 644)

“644.

… is a right which protects the inner sphere of the individual from interference from both State and non-State actors.” Further, once again emphasising that technology has made it possible for non-State actors to “enter citizens' houses”, he held that: (K.S. Puttaswamy case [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] , SCC p. 635, para 646)

“646.

… privacy is one of the most important rights to be protected both against State and non-State actors and be recognised as a fundamental right.” However, Kaul, J. began his judgment by observing that: (K.S. Puttaswamy case [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] , SCC p. 618, para 584)

“584.

… (the) right to privacy is claimed qua the State and non-State actors. Recognition and enforcement of claims qua non-State actors may require legislative intervention by the State.” He thus recognised that in the status quo, while enforcing the right to privacy against private bodies might be desirable, it was perhaps not yet possible. ….. ….. ….. ….. ….. ….. ….. ….. ….. ……

65.

In view of the aforesaid discussion, we firstly observe that Section 122 of the Evidence Act is not assailed in these proceedings. Secondly, under Section 122 of the said Act, privileged communication between the spouses is protected in the context of fostering intimate relationship. However, the exception under Section 122 of the Evidence Act has to be construed in light of right to a fair trial which is also an aspect of Article 21 of the Constitution of India. When we weigh the respective rights of the parties in a trial within the parameters of Section 122 of the Evidence Act, we do not think that there is any breach of right to privacy in the instant case. In fact, Section 122 of the aforesaid Act does not recognise such a right at all. On the other hand, the said section carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all. In this regard, we reiterate that as per the procedure established by law, Section 122 of the Evidence Act does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution, let alone invade upon such right. The reason is because Section 122 of the Evidence Act recognises the right to a fair trial, right to produce relevant evidence and a right to prove one's case against a spouse so as to avail the relief sought for by a party.

66.

As already discussed, Section 122 of the Evidence Act deals with both compellability as well as permissibility. The first part deals with compellability while the second part deals with permissibility. The second part dealing with permissibility is followed by two exceptions which are:

(a)

proceedings in suits between married persons; and

(b)

proceedings in which one married person is prosecuted for any crime committed against each other. Under the exception, the requirement of taking consent from the other spouse before disclosing the communication is done away with. Therefore, the exception has been carved out in Section 122 of the Evidence Act itself to state that such privilege between spousal communication does not extend to a case of litigation between the spouses themselves. In such a situation, the spouses would have the right to prove their respective cases and therefore can let in such evidence which is permitted under Section 122 of the Evidence Act, if one could use the expression “spill the beans”.

….. ….. ….. ….. ….. ….. ….. ….. ….. ……

69.

In our view, Section 122 of the Evidence Act does not concern itself with the right to privacy vis-à-vis spouses which is evident on a reading of the section and on discerning its plain meaning. The 69th Report of the Law Commission of India in 1977 observed that the section is “based on the abiding communication between the husband and wife, which is of such a nature that their mutual communications are not always to be regarded on the same footing as communications between person who have no such intimate tie”. It prefaced this by noting that the law of evidence has generally demonstrated a “degree of solicitude towards the sanctity of marriage”, and also referred to Best, C.J.'s opinion in Doker v. Hasler [Doker v. Hasler, (1824) 171 EM 992 : 1824 Ry & M 198 : 171 ER 992] , that “the happiness of the marriage…requires that the confidence between man and his wife should be kept forever inviolable”. Similarly, the 1853 Report of the English Commission on Common Law Procedure had observed that the “happiness” of human life depends on a large part upon the “inviolability” of domestic confidence, and that the “alarm and unhappiness” caused to society by the disclosure of confidential communications outweighs the disadvantage in terms of a loss of evidence during trials. [ Report of the 69th Law Commission of India on the Indian Evidence Act, 1872, p. 636.]

….. ….. ….. ….. ….. ….. ….. ….. ….. ……

71.

Clearly therefore, the founding rationale for Section 122 of the said Act, as has been recognised by the Law Commission and subsequently by certain High Courts, was to protect the sanctity of marriage and not the right to privacy of the individuals involved. Therefore, in adjudicating situations where the privilege under Section 122 of the Act is not granted, as in suits between a couple (an exception provided for in Section 122 itself), the right to privacy is not a relevant consideration, since it is not the rationale under which spousal communications were deemed privileged under Section 122 of the Act.”