By Ritwik Prakash Srivastava
Introduction
On 30 June 2020, the Delhi High Court (“HC”) reached a peculiar conclusion in the case of Deepti Kapur v. Kunal Jukla.[1] The Court held that evidence collected cannot be deemed to be inadmissible, solely on the ground that it was collected in breach of the fundamental right to privacy.
The issue arose from a pending divorce petition filed by the husband seeking divorce on the grounds of cruelty, as under Section 13 (1) (ia) of the Hindu Marriage Act (“HMA”). One of the pieces of evidence filed by the husband in support of the said claim was a Compact Disc (“CD”), with an audio-video recording of the wife speaking with her friend about the husband. According to the husband, the wife’s claims were derogatory, defamatory and constituted cruelty against him.
The wife opposed the admissibility of the CD as evidence on two grounds. Firstly, the contents of the CD were tampered with; and secondly, the conversation was a “private” one between the wife and her friend, which was recorded by the husband without her consent. The Family Court at Saket, Delhi deemed the CD to be admissible and ordered the Forensic Science Laboratory to comment on the genuineness of the contents.
The present petition was filed by the wife under Article 227 of the Constitution of India, claiming that the husband’s actions were in breach of her fundamental right to privacy. To that extent, the wife prayed the HC for the CD to be deemed inadmissible. However, the HC rejected the petition and upheld the Family Court’s decision. In this piece, we take a look at the HC’s reasoning in the judgement, in an attempt to understand how well it fares against the existing jurisprudence on Law of Evidence and Privacy.
The question may be adequately addressed by dividing it into two parts. Firstly, it needs to be considered how general principles of evidence interplay with constitutional rights. Secondly, we must look into the special laws on evidence which govern family disputes while deciding the admissibility of evidence. For the sake of comprehensiveness, a short discussion may also be undertaken on the weightage given to morality and ethics while considering such questions.
Applicable Law
In India, a 9- judge bench of the Supreme Court (“SC”) in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.[2] quoted in its order, unanimously holding that right to privacy is a fundamental right enshrined under Article 21 of the Constitution.
Apart from constitutional rights, there are a few statutory provisions that become relevant here. The Indian Evidence Act, 1872 (“IEA”) provides for the admissibility of evidence related to relevant facts,[3] cause, occasion or effect,[4] and those related to motive, conduct, and preparation.[5] Additionally, Section 65B of the IEA makes any information invalidly recorded in an electronic form admissible in any proceedings.
The special legislation in operation here is the Family Courts Act, 1984 (“FCA”). Section 14 of FCA empowers a Family Court to accept any evidence as admissible as long as it is relevant to the case in hand.[6] Such evidence does not have to be in accordance with the principles of IEA.[7] The FCA also has an overriding clause in Section 20.[8] A cumulative reading of Sections 14 and 20 of FCA results in the restricted application of IEA vis-à-vis what evidence may be relevant or admissible by the Family Court.
The Law of Evidence and the Constitution
The objective of the FCA is conciliation of family disputes to achieve socially desirable results.[9] To that extent, a Family Court is allowed to take an approach that is radically different from those applicable in ordinary civil proceedings.[10] Keeping that in mind, we have to look into the existing law on admissibility of tape-recorded evidence. In a 1966 case of Regina v Maqsud Ali,[11] in a criminal appeal, the Queen’s Bench analogized a tape recording to a photograph. The case concerned a secretly recorded tape recording which was the primary evidence. It was held that, as in the case of a photograph, if the accuracy of the evidence could be proven, and the voices or persons involved could be identified, then the tape was admissible. In the case of Pooran Mal v. The Director of Inspection (Investigation), New Delhi and Ors.,[12] the Apex Court discussed the admissibility of evidence in general terms. The case concerned search and seizure of account books and documents by the Tax Authorities, which was alleged to be violative of Articles 14, 19 (1) (f), 19 (1) (g) and 31 of the Constitution. The Court was succinct in rejecting the petition, reasoning that under Section 5 of the IEA relevancy of the evidence was the only test of admissibility. As such, it would be wrong to invoke the spirit of the Constitution for excluding such evidence.
One has to note that the two judgements were from a pre-Puttaswamy era. Thus, the notion of privacy was never under consideration. However, at the same time, these precedents cannot be summarily rejected as the rights and restrictions provided under Articles 14 and 19 of the Constitution were, as they are today.
Keeping that in mind, the next logical step would be to examine if the SC’s stance has changed in the post-Puttaswamy era. In 2019, in the case of Yashwant Sinha and Ors. v. Central Bureau of Investigation through its Director and Anr.,[13] the admissibility of documents procured in an illegal manner was put under consideration. The SC upheld its reasoning in the Pooran Mal (supra) case, deeming the evidence to be admissible. Relevancy was once again deemed to be the only test of admissibility. In any case, the SC in the Puttaswamy judgement has not dealt with the principles of evidence law in the context of privacy. It, however, does point out that the right to privacy is not absolute,[14] and that any privacy interest in autonomy must be considered in the context of other rights and values.[15] Thus, in a conflict between the right to privacy and right to fair trial, the latter would prevail as it has wider ramifications and affects public justice.
The Law of Evidence and the Family Court
The scope of Section 14 of the FCA was considered by the Bombay HC in the case of Deepali Santosh Lokhande v. Santosh Vasantrao Lokhande.[16] The HC reasoned that the provision is to simplify the procedural rules, making it easier for the Family Court to deal with the dispute effectively. Thus, any evidence which the Family Court deems would assist it in effectively dealing with the dispute may be considered by the Court. It also pointed out the peculiarity of a matrimony dispute. In such scenarios, the approach of the courts has to be “realistic and rational rather than technical and narrow”, keeping in mind the realities of life. Thus, even electronic evidence which has not been certified as under Section 65B of the IEA may be considered by a Family Court if the Court deems it relevant to the dispute at hand. In any case, FCA being a special law would prevail over the IEA in such matters.[17]
That said, there is a distinction between deeming evidence as admissible and acting upon it. The evidence may be taken on record, but the Family Court is not bound to act upon any such evidence for adjudication.[18]
The Law of Evidence, Morality, and Ethics
Recalling the principles developed by the SC in the case of Pooran Mal, the Delhi HC in the present case deemed it unwarranted to bring up the subjective and undefined ethical and moral values. If at all, a piece of evidence was to be excluded on the ground of ethics and morality, it would be in breach of Section 14 and the objectives of the FCA.
The disputes a Family Court is expected to deal with involve personal and sensitive matters. By the nature of relationships out of which such disputes arise, most of the evidence would relate to private and intimate affairs of the parties involved. In such a scenario, if the scope of Section 14 of FCA is diminished to the extent to of the right to privacy of an individual, then Section 14 may as well be removed from FCA. The Delhi HC reasoned that if the operation of Section 14 of FCA is ignored, the general rule of evidence which makes relevancy the only test of admissibility of evidence, would come into operation.[19]
As pointed out earlier, the peculiarity of family disputes is in the sensitive nature of issues and relationships that they involve. If privacy is deemed a factor while adjudicating them, the trial itself would come to naught . A layperson cannot be expected to be aware of the complex rules of evidence collection. Thus, a sneakily taken voice recording of a sibling by another, the diary of a husband procured by the wife, or as in this case, a CD with the audio-video recording of the wife, made without her consent by her husband, all are the usual pieces of evidence that one can expect in a dispute being adjudicated by a Family Court. All aforementioned pieces of evidence would be necessary in the breach of one’s right to privacy. Yet given the nature of the relations between the parties, all such pieces of evidence would be needed to be deemed admissible, if a fair trial is to take place.
Similar sentiment has been echoed by the Supreme Court in a previous case while affirming the validity of relevancy as the only test of admissibility of evidence.[20] The SC reasoned that it would be wrong to invoke the spirit of the Constitution for excluding such evidence.
However, it must be noted that the facts of the case deal exclusively with an intimate and family dispute. It may be dangerous and against the interest of justice extending this holding to other kinds of proceedings. Especially to criminal ones wherein the procedures already established are far more comprehensive, and the consequences for the accused can be life-threatening. It holds the potential of dismantling even the most well-settled principles of evidence collection. For example, such a ruling bypasses the need for the police to obtain a warrant before they can search a suspect’s house.[21] Not to say, in the same scenario if such a search and seizure is undertaken, the sanctity accorded to one’s home which forms an intimate part of one’s right to privacy,[22] would be breached too.
Ruling of the Court
The Delhi HC concluded that any evidence is admissible as long as it is relevant. However, it did acknowledge the overbroad consequences of such a ruling. It noted that any concerns of privacy might be addressed not at the time of receiving the evidence, but at the time of using the evidence during adjudication. Thus, admission of evidence on record cannot be equated with the Court being bound to rely on it. The Court is free to exercise its judicial mind to arrive at a decision. It must also be noted that merely because an illegally procured evidence may be admitted, it does not absolve the party who collected such evidence of any legal liabilities that may follow.
The HC also laid down some safeguards which need to be considered while a Family Court exercises its powers under Section 14 of the FCA. Firstly, stringent standards must be applied to determine the authenticity and reliability of the evidence; secondly, if the evidence is of embarrassing or sensitive in nature for any of the parties, the Family Court may conduct in-camera proceedings; thirdly, appropriate civil or criminal proceedings may be initiated by an aggrieved party against the party which procured the evidence illegitimately.
Conclusion
Prima facie, the Delhi HC seems correct in holding that the only test of admissibility of evidence should be its relevance with the dispute. While the HC did point out that appropriate legal action may be undertaken against the person who illegally procured the evidence, how far the same would be practical and effective, remains to be seen. What it means is that it is the process of collection of evidence that may be tainted, but not the evidence itself.
The ruling, while setting a seemingly desirable principle in the context of a family dispute, is an equally dangerous one when seen outside it. The Court relied heavily on the peculiar wording of Section 14 of FCA to arrive at the decision. Thus, it should have been clarified by the HC that the ratio of the case would only be applicable in family and personal disputes. The Delhi HC’s failure to do so raises a number of concerns regarding how evidence collection in criminal cases and other civil disputes which do not involve such personal relations between the parties would play out. It leaves the door open to unwarranted searches, seizures, and a clear legal bypass circumventing the fundamental right to privacy.
Thus, a blanket ruling which makes the principles of an individual’s privacy inferior to the principles of fair trial completely ignores the reasoning that relying on illegally obtained evidence against a party would also violate the right to a fair trial of the said party.
The author, Ritwik Prakash Srivastava, is currently a law student at the National Law Institute University, Bhopal.
[1] Deepti Kapur v. Kunal Jukla, CM (M) 40 of 2019 and CM Appl. No. 1226 of 2019 (Del. H.C.) (Unreported).
[2] K.S. Puttaswamy and Anr. v. Union of India and Ors, (2017) 10 SCC 1.
[3] The Indian Evidence Act, 1872, §5.
[4] The Indian Evidence Act, 1872, §7.
[5] The Indian Evidence Act, 1872, §8.
[6] The Family Courts Act, 1984, §14.z
[7] Deepali Santosh Lokhande v. Santosh Vasantrao Lokhande, 2018 (1) Mh. L.J. 944, ¶6.
[8] The Family Courts Act, 1984, §20.
[9] Statement of Objects & Reasons of The Family Courts Act, 1984.
[10] Statement of Objects & Reasons of The Family Courts Act, 1984.
[11] Regina v Maqsud Ali, (1966) 1 QB 688.
[12] Pooran Mal v. The Director of Inspection (Investigation), New Delhi and Ors., (1974) 1 SCC 345.
[13] Yashwant Sinha and Ors. v. Central Bureau of Investigation through its Director and Anr., (2019) 6 SCC 1.
[14] K.S. Puttaswamy and Anr. v. Union of India and Ors, (2017) 10 SCC 1, ¶ 28.
[15] K.S. Puttaswamy and Anr. v. Union of India and Ors, (2017) 10 SCC 1, ¶ 23.
[16] Deepali Santosh Lokhande v. Santosh Vasantrao Lokhande, 2018 (1) Mh. L.J. 944.
[17] Barker vs. Edger & Others, 1898 AC 748.
[18] Deepti Kapur v. Kunal Jukla, CM (M) 40 of 2019 and CM Appl. No. 1226 of 2019 (Del. H.C.) (Unreported).
[19] Deepti Kapur v. Kunal Jukla, CM (M) 40 of 2019 and CM Appl. No. 1226 of 2019 (Del. H.C.) (Unreported).
[20] Pooran Mal v. The Director of Inspection (Investigation), New Delhi and Ors., (1974) 1 SCC 345, ¶ 23.
[21] Code of Criminal Procedure 1973, §§ 93-97.
[22] Peter Semayne v Richard Gresham, All ER Rep 62, at 105; see also Kharak Singh vs The State Of U. P. and Ors., 1963 AIR 1295.
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