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Lalit Ajmani is an experienced advocate with a demonstrated history of working in a wide range of matters including recovery disputes, insolvency disputes, consumer disputes, real estate disputes, arbitration matters, matrimonial disputes, and others. He is a graduate of one of the best National Law Universities and has done specialization in Business Laws.
Apart from fundamental litigation areas, he is also asked by a few corporations for advisory related work. Moreover, his research works are published by leading platforms like Mondaq, Live Law, and others.
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INTRODUCTION
Recently, the Delhi High Court in the case of Deepti Kapoor vs. Kunal Julka[1] has held that the recording of the spouse’s telephonic conversation with some third party without her consent doesn’t make the tape recording inadmissible merely because of the illegal way of procuring it.
The issue of violation of right to privacy under the garb of procuring evidence has also been highlighted. However, the difficulty in procuring the evidence can’t be ignored. Ergo, it is imperative to refer the recent development in the light of the fundamental provisions of law qua the sanctity of evidence procured illegally and the right to privacy.
Evidence
Evidence is the backbone of every legal dispute. Without appreciating the evidence, it is almost impossible for any court or tribunal to adjudicate the matter fairly, especially in case of a disputed question of fact. The law pertaining to evidence is enshrined under the Indian Evidence Act, 1872 (“Evidence Act” for brevity) r/w civil and criminal procedures.
The Evidence Act, inter alia, categorizes the evidence into two forms i.e. Oral Evidence and Documentary Evidence[2]. Further the Documents can be proved either via Primary Evidence or Secondary Evidence[3]. However, the admissibility of the tape recording is a moot question here.
Considering the scope of the issue in hand, we will be dealing with the admissibility of the Tape Recording procured illegally in the light of the recent development of law.
Tape Recording
The Supreme Court in the case of R. M. Malkani vs. State of Maharashtra[4] held that the tape recording conversation is admissible provided it meets the following three-fold criteria
- Relevance;
- Voice identification; and
- Proof of accuracy
Further, the Supreme Court in the case of Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra & Ors[5] has clarified that the tape recording conversation falls under the definition of Documents as defined under section 3 of the Evidence Act, provided it meets the aforesaid 3 fold test.
It is therefore clear that the tape recording is admissible subject to the aforesaid requirements of law. However, the issue becomes quite tricky when the tape recording is obtained by illegal means or via breaching the privacy of the opposite party. Would the illegal means defeat the evidence altogether or would it be having no bearing on the evidence? This question is no more res integra and extensively dealt in the recent judgment of Deepti Kapoor vs. Kunal Julka[6] which is briefly discussed herein.
Legality of the Tape Recording procured illegally
In the aforesaid case of Deepti Kapur, the High Court of Delhi had decided the legality of the tape recording of the wife’s telephonic conversation with some third party which was procured without her consent.
The case was filed under the Article 227 of the Constitution of India against the order of the family court, Delhi where the Ld. Family court chose not to refuse to take the CD on record having the wife’s telephonic conversation with some third party even where the consent of the wife was not provided. Moreover, the aggrieved party alleged that the same violates the Fundamental Right of privacy as clarified by the constitution bench of the Supreme Court in the case of Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.[7]
The High Court of Delhi extensively dealt with the jurisprudence pertaining to the legality of tape recording and covered the following issues pertaining to it.
- Law of Evidence vis-a- vis Family Courts
As stated earlier that the law of evidence is enshrined under the Evidence Act. However, there are some special instances where the Evidence Act is not followed religiously. On these lines, the Family Courts are not bound by the Evidence Act[8]. The Family Courts are the creation of the Family Courts Act, 1984 wherein section 14 of the Act gives liberty to the Family Court to adopt liberal approach while appreciating the evidence and not to be strictly bound by the Evidence Act. Further, section 20 of the Family Courts Act gives the overriding effect to the provisions of the Act over any other provisions of law. In other words, section 20 states that if there is any contradiction between any provision of the Family Courts Act, 1984 with any other provisions of law, then the Family Courts Act will govern.
In addition to that, the Statement of Objects and Reasons of the Family Courts Act represents the relaxation rather than following the rigid rules of evidence which are otherwise being followed up religiously in the civil cases. This shows that the Family Courts are not bound by the Evidence Act and its complex procedure.
- Evidence procured via illegal means
The issue is not new and has been dealt on various occasions by the High Courts and the Supreme Court. In the case of Pooran Mal vs. The Director of Inspection (Investigation), New Delhi & Ors.[9] the Supreme Court held that the evidence can’t be excluded merely on the ground that the same is procured via illegal search. Further, the Supreme Court in the case of Yashwant Sinha & Ors. vs. Central Bureau of Investigation through its Director & Anr.[10] had the occasion to decide the admissibility of the documents which were procured illegally. The Court relying upon the aforesaid case of Pooran Mal decided that the illegal way of obtaining evidence can’t negate the admissibility of the evidence per se.
The Court also pointed out the celebrated judgment of the Supreme Court which slightly goes against the aforesaid settled principle. The Court noted that the Apex Court in the case of State of Punjab vs. Baldev Singh[11] held that the “courts cannot allow admission of evidence against an accused where the court is satisfied that the evidence had been obtained by conduct of which the prosecution ought not to take advantage, particularly when that conduct causes prejudice to the accused”.
However, the High Court distinguished these two interpretations while placing reliance on section 14 of the Family Courts Act. It was held that since the Family Courts are not bound by the Evidence Act, therefore the relaxation could guide the family courts to appreciate such evidences.
Further, it is to worth to state herein that the case of Yashwant Sinha came after the pronouncement of the Baldev Singh case. Therefore the cardinal principle of the interpretation also favours the ratio of Yashwant Sinha’s case.
- Tape Recording
While placing upon the various judgments, including the judgments of the R. M. Malkani vs. State of Maharashtra[12] and of the Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra & Ors[13]. the court held that the Tape Recordings are admissible in the court of law provided it follows the three-fold criteria. The said aspect has already been covered in the early part of this article and the same is not repeated herein for brevity.
- Tape Recordings procured illegally
Following the jurisprudent of evidence procured illegally and the aspect of tape recording as evidence, the High Court held that even if the Tape Recording was procured via illegal means doesn’t make it inadmissible per se. Further, the Court held that the concerned court needs to appreciate the evidence in the light of rules of law and evidence and if the same meets the required threshold, then the same can be relied upon and the court can’t discard it merely on the basis that the evidence/ Tape Recording is obtained illegally even by where the right to privacy of the other is being defeated provided that the impugned evidence satisfies the required criteria.
- Violation of Right to Privacy
The Court while noting that the Right to Privacy is a Fundamental Right, the Court held that the same is not sufficient to guide the court to disregard the evidence. However, the aggrieved party is duly entitled to proceed with the rights to initiate civil and criminal actions against the other one qua breach of privacy.
It is submitted that the Delhi High Court has left no room of doubt qua the legality of the tape recording procured via illegal means. However, the Court clarified that merely the admissibility doesn’t verify or prove the fact. In other words, admitting such evidence is nothing but merely placing the evidence in the records which further needs to appreciated by the concerned court regarding its relevancy and how far it can guide the court to adjudicate the matter.
The aforesaid judgment clarifies the fundamental issue of Tape recording in family disputes.The Court gives green signal to the admissibility of such evidences, while cautioning the courts while appreciating such evidences as the same are prone to get tampered and corrupted. It is not out of place to mention that the Law Commission in 1983 via its 94th report[14] suggested for the inclusion of Chapter 10A titled ‘Evidence obtained illegally or improperly’ via section 166 A. The proposed section 166A, inter alia, states that in criminal cases the courts may refuse to admit the evidence where the court is of the opinion that nature of obtaining the evidence may cause disrepute to the administration of justice. However, till yet the same is not incorporated and the aforesaid judgments which came after the law commission report clarified the status quo.
Lastly, in the family disputes where it is not uncommon to witness that the parties often don’t refuse to test the lines to prove their cases. Therefore, the aforesaid development of law may encourage some of the litigants to procure evidences in one way or the other. Therefore, the task of the family courts to appreciate such evidences is now become more challenging than ever.
[1] CM(M) 40/2019 and CM APPL.No.1226/2019; decided on 30.06.2020 by the High Court of Delhi
[2] Section 3 of the Indian Evidence Act, 1872
[3] Ibid; Section 61
[4] (1973) 1 SCC 471
[5] (1976) 2 SCC 17
[6] Supra Note 01.
[7] (2017) 10 SCC 1; The Court held that the right to privacy is a Fundamental Right which falls under the ambit of Article 21 of the Constitution of India.
[8] See section 14 of the Family Courts Act, 1984
[9] (1974) 1 SCC 345
[10] (2019) 6 SCC 1
[11] (1999) 6 SCC 172
[12] Supra Note 04.
[13] Supra Note 05
[14] Law Commission of India, 94th Report (1983) on Evidences obtained illegally or improperly; Proposed section 166A, Indian Evidence Act, 1872.
Available on http://lawcommissionofindia.nic.in/51-100/Report94.pdf