Law's liberal approach to collect evidence not to be taken as approval to adopt illegal means: Delhi HC

The Delhi High Court, in its 46-page order, upheld the family court's order saying there is no infirmity in it.

Published: 30th June 2020 10:49 PM  |   Last Updated: 30th June 2020 10:49 PM   |  A+A-

Delhi High Court

Delhi High Court (File Photo | PTI)


NEW DELHI: Marriage is a relationship to which sanctity is still attached in the society, said the Delhi High Court on Tuesday while expressing disapproval to collection of evidence in matrimonial disputes through surreptitious means as it could create havoc in people's personal and family lives.

The high court observed that merely because rules favour a liberal approach for admitting evidence, it should not be taken as an approval for anyone to adopt any illegal means to collect proof in relationships such as matrimony.

Justice Anup J Bhambhani said while law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.

The high court was hearing a plea of a woman challenging an order of a family court which had allowed her estranged husband to bring on record the evidence in a compact disc (CD) while directing that its contents be examined by the Forensic Science Laboratory (FSL) to assess the genuineness of the recording.

In the divorce proceedings before the family court, the husband has filed a CD purportedly containing an audio-video recording of the wife supposedly speaking with her woman friend on phone and talking about him and his family in a derogatory and defamatory manner which constituted cruelty to him.

It was opposed by the wife who said the conversation comprised in the CD has been recorded in breach of her fundamental right to privacy and, therefore, inadmissible in evidence.

The high court, in its 46-page order, upheld the family court's order saying there is no infirmity in it.

"It may be noted that in the impugned order the family court has expressed its subjective opinion that the recording in the CD will certainly assist it in deciding the dispute between the parties and that therefore the evidence on the CD is relevant.

"Even otherwise, the conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a relevant fact' as understood in law...To that extent, therefore, the contents on the CD are relevant for purposes of the divorce proceedings," it said.

Justice Bhambhani, however, observed that while consistency in law is of utmost importance and law must get its full play regardless of the fact situation, this court must record the unease it feels with regard to a certain aspect that has arisen in this matter.

"Marriage is a relationship to which sanctity is still attached in our society. Merely because rules of evidence favour a liberal approach for admitting evidence in court in aid of dispensation of justice, this should not be taken as approval for everyone to adopt any illegal means to collect evidence, especially in relationships of confidence such as marriage.

"If the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people's personal and family lives and thereby in the society at large," the high court said.

It added that if a spouse has the 'carte blanche' (complete freedom to act as one wishes) to install a recording device in a bedroom or other private space or to adopt any means whatsoever to collect evidence against the partner, even if in case of matrimonial discord, it would be difficult to foresee the height to which a spouse may go.

The possibility would itself spell the end of the marital relationship and it is not uncommon for spouses to continue living together, even in matrimonial strife, for years on-end, it said.

The high court also said while a litigating party has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case "It is a critical part of the hallowed concept of fair trial that a litigating party gets a fair chance to bring relevant evidence before court. It is important to appreciate that while the right to privacy is essentially a personal right, the right to a fair trial has wider ramifications and impacts public justice, which is a larger cause," it said.

It added that the cause of public justice would suffer if the opportunity of fair trial is denied by shutting-out evidence that a litigating party may wish to lead at the very threshold.

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