Secretly Recording Wife’s Call Is Violation of Her Right To Privacy & H High Court; Husband Moves Apex Court Against Order

(Judicial Quest News Network)

Last year in December while disposing of the petition pertaining to the secret recording of the telephonic conversation of wife without her knowledge amounts to infringement of her right to privacy.

A husband who was barred from recording telephonic conversations with his wife has moved the Supreme Court in appeal (Vibhor Garg V. Neha) In the recent past Punjab & Haryana High Court had ordered which held that recording telephonic conversations of his wife without her knowledge amounts to infringement of her right to privacy. The court had further held that the transcript of such conversation cannot be accepted as evidence. The Court held that the alleged recordings and certificates memory chips are nothing but pieces of fabricated manipulated evidence which are inadmissible into erridence

for reasons mentioned above. Alleged evidence is neither genuine nor authentic but being a mixture of truth and fiction conveys total false misleading impression and if permitted would destroy the sanctity of judicial proceedings besides

amounting to assault on the institution of marriage itself. Thus, such type of evidence is legally inadmissible into existence A bench of Justices Vineet Saran and BV Nagarathna issue notice to the wife. A reply from her is sought in the next three weeks.

The order of the Punjab & Haryana High Court pronounced by Justice Lisa Gill held that “Keeping in view the factual matrix of the case, it cannot be said that as the Family Court is not bound by strict rules of evidence, it is at liberty to accept the CD in evidence which is a clear-cut infringement of the right of privacy of the wife.”

The P & H HC had further held that thus, recording of telephonic conversation of the wife without her knowledge, is a clear-cut infringement of her privacy. Furthermore, it cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded scrumptiously by one of the parties.

The wife had challenged an order of the family court allowing the husband to reproduce telephonic recordings of their conversations. The Husband, on the other hand, sought an expeditious disposal of his divorce petition.

In the eye of the High Court, it was presents as the main issue whether this order of the family court was against the fundamental right ot privacy of wife.

It is further submitted in the SLP that the law is so provided under Section 122 of the Evidence Act. The same is in favour of the Petitioner herein. Further, the Family Court is not bound by the strict rules of evidence under Section L4, 20 of the Family Court Act, 1954.

It is humbly submitted that in the matrimonial cases involving

an allegation of cruelty – mental cruelty, the parties are bound to re-create the issues and events which were otherwise confined to the matrimonial home and the bedroom and away from the public eye, in the Courtroom. On many occasions, such events and issues between the married persons do not have any witnesses apart from the said married person. Such events are also not capable of being proved by documentary evidence. In the present age of technology and computers, such evidence can be brought to the court using the technology and modern electronic devices available. However, as a matter of caution, the Courts are to be circumspect in relying upon such evidence without satisfying itself as to the authenticity and reliability of such evidence recorded on the electronic devices.

The SLP filed through Advocate-on-Record Ankit Swarup submitted that recorded conversation held between the parties is another way of adducing evidence and recreating before the Court the events of the matrimonial home just like the evidence of oral testimony of the parties. It was argued that without proving the aspect of cruelty, the appellant would be unsuccessful in seeking a decree of divorce from the family court.

It was further submitted that the right to privacy- by itself- has not been identified under the Constitution. As a concept it may be too broad and

moralistic to define it judicially. Whether right to privacy can

be claimed or has been infringed in a given case would depend

on the facts of the said case. But the right to hold a telephone

conversation in the privacy of one’s home or office without

interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and

confidential character. Telephone-conversation is a part of

modern man’s life. It is considered so important that more and

more people are carrying mobile telephone instruments in them

pockets. Telephone conversation is an important facet of a man’s private life. It is further contended that the learned Family

Court has given a complete go bye to Section 65 of the Indian Evidence Act, because if recording has been done through a mobile phone, CD’s of the

recording and transcripts thereof in any case, cannot be accepted as evidence

thereof. Moreover, there is non-compliance of Section 65-B of the Evidence

Act.