Deepti Kapur v. Kunal Julka

(ii) N. Sri Rama Reddi & Ors. vs. V. V. Giri[5]: in which a

5-Judge Constitution Bench of the Supreme Court has upheld the decision in S. Pratap Singh vs. State of Punjab: (1964) 4 SCR 733, that a tape recorded conversation is admissible. It was further held that a tape recording can be used to corroborate as well as contradict evidence.

(iii) R. M. Malkani vs. State of Maharashtra[6]: in which a 2-

Judge Bench of the Supreme Court has held that conversation that is tape recorded by an external device, without tampering or interrupting telephone lines, is admissible in evidence. In this case the Supreme Court has spelt-out three conditions for admissibility of a tape recording, namely (a) relevance, (b) voice identification and (c) proof of accuracy. Further it has been held that evidence, even if procured illegally, is admissible.

(iv) Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass

Mehra & Ors.7: in which a 3-Judge Bench of the Supreme Court has held that tape recordings of speeches were documents under section 3 of the Evidence Act, which stood on no different footing than photographs, and were admissible after satisfying the three conditions as laid down inter alia in RM Malkani (supra).

(v) X vs. Hospital Z[8]: in which a 2-Judge bench of the Supreme

Court has held that the disclosure by a doctor of a serious disease suffered by a prospective groom that saved the prospective wife from contracting that disease, did not invade the man’s right to privacy, despite the fact that one of the most important aspects of a doctor-patient relationship is the doctor’s duty to maintain secrecy about a patient’s medical condition; and that though the right to privacy is one of the basic human rights, it is not treated as absolute and is subject to such action as may lawfully be taken for prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others. For completeness it must be noted that upon an application made subsequently, a 3-Judge bench of the Supreme Court in X vs. Y Hospital[9] clarified that the decision of the 2-Judge bench decided only that revealing the man’s medical condition to the fiancé’s relatives did not violate his right to privacy since the fiancé had a right to know about the medical status of the man she was to marry, while holding that certain other observations made by the 2-Judge bench were uncalled for.

(vi) Sharda vs. Dharmpal10: in which a 3-Judge Bench of the

Supreme Court has held that a matrimonial court has the power to order a person to undergo medical tests; and passing of such an order by the court would not be in violation of the right to personal liberty under Article 21; and that if a party refuses to submit himself to medical examination despite a court order, the court will be entitled to draw an adverse inference against that party.

(vii) Tukaram S. Dighole v. Manikrao Shivaji Kokate 11: in which a 2-Judge Bench of the Supreme Court, citing Ziyauddin Burhanuddin Bukhari (supra), has held that tape recordings are documents under section 3 of the Evidence Act, which stood on no different footing than photographs; and were admissible after satisfying the three conditions as laid down inter alia in R.M. Malkani (supra), though with more stringent standards of proof.

(viii) Anurag Kumar Singh & Ors. vs. State of Uttarakhand &

Ors.12: in which a 2-Judge Bench of the Supreme Court has held that courts cannot give any direction contrary to the statutes or rules made thereunder in purported exercise of judicial discretion.

(ix) Anvar P. V. vs. P.K. Basheer & Ors.13: in which a 3-Judge

Bench of the Supreme Court has held that electronic record produced for inspection of the court is documentary evidence under section 3 of the Evidence Act, to be proved in accordance with the procedure prescribed under section 65-B of the Evidence Act.

(x) Justice K. S. Puttaswamy (Retd.) & Anr. vs. UoI & Ors.

(supra): in which a 9-Judge Constitution Bench of the Supreme Court has held that the right to privacy is a fundamental right; however it is not an absolute right and has to be placed in the context of other rights and values.

(xi) Havovi Kersi Sethna vs. Kersi Gustad Sethna14 single Judge of the Bombay High Court has followed the tests laid down inter alia in RM Malkani (supra) as to the admissibility of tape recorded conversations.

(xii) Manohar Lal Agrawal vs. Santosh & Ors.15

Division Bench of the Rajasthan High Court has held that the Family Court has been left free to receive any evidence or material which assists it to deal effectually with a dispute and the provisions of the Evidence Act would not be applicable.

(xiii) Preeti Jain vs. Kunal Jain & Anr. 16: in which a single

Judge of the Rajasthan High Court has held that the ‘privilege’ in respect of husband-and-wife communication under section 122 of the Evidence Act is eclipsed by section 14 of the Family Courts Act 1984. SCC OnLine Bom 120 MANU/RH/0162/1993 SCC OnLine Raj 2838

(xiv) Sagrika Debata vs. Satyanarayan Debata & Anr. 17: in which a Division Bench of the Orissa High Court has held that consideration of evidence by a Family Court is not restricted by the rules of relevancy or admissibility provided under the Evidence Act.

(xv) Akham Ibodi Singh vs. Akham Biradhwaja Singh & Anr18.:

in which case a single Judge of the Gauhati High Court has held that the Family Court deals with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings; and that section 14 of the Family Courts Act does not suffer from any vice of either arbitrariness or being fanciful.

(xvi) Pootholi Damodaran Nair vs. Babu19: in which a single

Judge of the Kerala High Court has held that a tape recording can be considered as a statement provided it is not tampered with; and the tests laid down inter alia in R.M. Malkani (supra) are followed. Decision of the Family Court:

11. In allowing the husband’s application, the Family Court has dealt with the rival contentions of the parties in the following way: “7.[1] There can be no dispute to the law laid down in K.S.Puttaswamy & Anr.'s case (supra). The law, as

2005 SCC OnLine Ker 189 enunciated by a Full Bench (sic) of the Hon'ble Supreme Court of India is binding and sacrosanct. However, this court is of the opinion that the scope of K.S.Puttaswamy & Anr.'s case (supra) is restricted to a stage prior to violation of the right to privacy. The Hon'ble Supreme Court of India has held that a person has a right to maintain his privacy. This right has been conferred the status of a Fundamental right. The protection has been enunciated to be available against state, as well, as non-state entities. However, the consequences of such violation, on the admissibility/ inadmissibility of the evidence collected by such violation, are not the subject matter or have not been discussed in the judgment.” “7.[2] Thus, in the present case, the act of petitioner/ husband of planting an audio-video recorder without the knowledge and permission of respondent, certainly amounts to invasion of respondent's right to privacy. Petitioner had no right to plant such a device. Having planted the said recorded (sic) and made a recording therein, the legally permissible consequences would follow. In appropriate proceedings, petitioner can be held liable for violating the respondent's Fundamental right to privacy. The question that needs to be answered by this court in the present application is, from the next stage onwards i.e. 'whether the evidence so collected in violation of respondent's Fundamental right to privacy is admissible or not ?. This court is of the opinion that K.S.Puttaswamy & Anr's case (supra) is silent on this question. Reliance upon law laid down in X Vs. Hospital Z's, case (supra) and Sharda Vs. Dharampal's case (supra) also does not answer this question. In X Vs. Hospital Z's case (supra), it was held by the Hon'ble Supreme Court that dissemination of information about a person being infected with HIV +ve is not hit by right of privacy, as the prospective spouse has a right to protect herself from being infected. In Sharda Vs. Dharampal's case (supra), Family courts' power to direct a person to undergo medical test was held not violative of Article 21 of the Constitution of India. The judgments relied upon by ld. counsels based on Article 19 & 21 of the Constitution of India, therefore, do not answer the question, which this court is required to answer.” (Emphasis supplied)

12. The Family Court has further given the following reason for receiving the evidence filed by way of the CD in light of section 14 of the Act: “8.[1] It is sec.-14 of the Family Court of Act, which squarely & clearly answers the question posed. Sagarika Devatta's case (supra) elucidates the object of sec.-14 of the Family Courts Act. The legislature's wisdom to keep the procedure in legal aspect of a Family Court, to be simple and noncomplicated have been held to be the object of the Sec.-14 of the Family Court Act. For ready reference, Sec.-14 of the Family Court Act is reproduced hereinbelow: * * * * * * It is, therefore, evident that the Family Court is within its right to receive any report, statement, document or information, which in the opinion of the court will assist it in effectually dealing with a dispute between the parties; whether such evidence is relevant or admissible or not. Therefore, the question of admissibility of the evidence collected by violating the respondent's right to privacy, would not be gone into, by a Family Court and the evidence shall be taken on record; if the court is of the opinion, that such evidence will assist it in dealing with the dispute effectively.” “8.[2] This court is of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the petitioner/ his family and the status of the matrimonial life would, certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant. Therefore, in view of sec.-14 of the Family Court Act, the evidence can not be thrown out on the ground that the same is inadmissible. Dr. Hingorani's argument that the admissibility mentioned in Sec.-14 of The Family Courts Act pertains to admissibility under Indian Evidence Act and not under the Constitution of India, does not impress this court. The question of admissibility has been defined only under the Indian Evidence Act and there is no way that appreciation of admissibility of evidence can be carried out under Constitution of India. Therefore, court is of the opinion that the audio-video recording, as contained in the CD is certainly permissible to be taken on record and considered for effectively adjudicating the dispute between the parties.”

13. The Family Court has differed with the view taken by a single Judge of the Rajasthan High Court in Vishal Kaushik vs. Family Court & Anr.20, holding that judgement to be per incuriam for the reason that, according to the Family Court, the law laid down by the Supreme Court in R.M. Malkani (supra) as followed in State vs. Navjot Sandhu21 was not brought to the notice of the Rajasthan High Court and has therefore not been considered.

14. The Family Court has relied essentially upon the law as expatiated by the Supreme Court in Navjot Sandhu (supra), as is discussed later in this judgment.

15. The impugned order requires to be tested on the anvil of well-worn principles of admissibility of evidence; as moulded in light of section 14 of the Family Courts Act, which creates a special dispensation for a Family Court receiving evidence to effectively decide disputes before it; and above all in view of the overarching effect of the recent, authoritative recognition given by the Constitution Bench judgment of our Supreme Court to the right to privacy as a fundamental, though not absolute, right. In assessing the scope and operation of section 14 of the Family Courts Act, attention must also be given to the interpretative principles of a ‘special law’ prevailing over the ‘general law’; and of a ‘later statute’ prevailing over an ‘earlier statute’. The question also needs to be addressed as to whether admissibility is to be decided based only on principles of evidence or also based on constitutional rights and principles. Finally, it also needs to be seen if ethical and moral considerations should also be factored-in for deciding admissibility of evidence.

16. At this point, it would be useful to extract the relevant Constitutional/ statutory provisions which need to be considered. These are: The Family Courts Act 1984

17. The Statement of Objects and Reasons (SOR) of the Family Courts Act enunciates the main purpose of its enactment in the following words: “Several associations of women, other organizations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial.” “2. The Bill inter alia, seeks to— h) simplify the rules of evidence and procedure so as to enable a Family Court to deal effectually with a dispute;” meaning thereby, that apart from the emphasis on settlement of disputes by conciliation, the other main objective was to ensure expeditious proceedings inter alia by simplifying the rules of evidence required to be followed by Family Courts.

18. One of the earliest, leading decisions on the question of admissibility of tape-recorded conversations is Regina vs. Maqsud Ali22, where a secretly tape-recorded conversation was the only incriminating piece of evidence implicating the accused persons for murder. In the face of strong objection raised by the defence however, in exercise of his discretion, the trial judge admitted the tape recording in evidence. In this backdrop, the court of (1966) 1 QB 688 criminal appeal held that there was no difference in principle between a tape recording and a photograph; accordingly, a tape recording was admissible in evidence provided that its accuracy could be proved and the voices properly identified and provided the evidence was relevant and otherwise admissible. The court did not lay down any exhaustive set of rules by which the admissibility of evidence could be judged but observed that such evidence had always to be regarded with caution and assessed in the light of all the circumstances of a particular case. The court further observed that but for the fact that the tape recorder was a mechanical device, it was no different from an eavesdropper, and since the accused were not in custody and no caution was required, the use of the tape recorder could not be said to operate unfairly against them. The court said that the method of taking the tape recording could not affect its admissibility, which still remained a matter for the discretion of the judge. The court however added that it should not be taken to be saying that such recordings are admissible whatever the circumstances, but it does appear wrong to deny to the law of evidence advantages to be gained by new techniques and new devices.

19. The law in India in relation to ‘admissibility’ of evidence is crisp, clear and consistent. A 5-Judge Constitution Bench of the Supreme Court in Pooran Mal vs. The Director of Inspection (Investigation), New Delhi & Ors.23 (and connected matters) was considering a challenge to the seizure of articles consisting of account books, documents and valuables by Income Tax Authorities, purporting to exercise their authority for search and seizure under section 132 of the Income Tax Act 1961 and Rule 112-A of Income

Tax Rules. The legal challenge was that the said provisions were violative of the fundamental rights guaranteed under Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution. Enunciating the law on the point, the Supreme Court observed as under: “23. * * * * * * Now, if the Evidence Act, 1872 which is a law consolidating, defining and amending the law of evidence, no provision of which is challenged as violating the Constitution — permits relevancy as the only test of admissibility of evidence (See Section 5 of the Act) and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. In M.P. Sharma v. Satish Chander already referred to, a search and seizure made under the Criminal Procedure Code was challenged as illegal on the ground of violation of the fundamental right under Article 20(3), the argument being that the evidence was no better than illegally compelled evidence. In support of that contention reference was made to the Fourth and Fifth Amendments of the American Constitution and also to some American cases which seemed to hold that the obtaining of incriminating evidence by illegal seizure and search tantamounts to the violation of the Fifth Amendment. The Fourth Amendment does not place any embargo on reasonable searches and seizures. It provides that the right of the people to be secure in their persons, papers and effects against unreasonable searches and seizures shall not be violated. Thus the privacy of a citizen's home was specifically safeguarded under the Constitution, although reasonable searches and seizures were not taboo. Repelling the submission, this Court observed at p. 1096: “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.” It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.”

20. Following earlier decisions, the position regarding admissibility of evidence is very pithily captured by a 2-Judge Bench of the Supreme Court in Navjot Sandhu (supra) as follows: “154. * * * * * * The legal position regarding the question of admissibility of the tape-recorded conversation illegally collected or obtained is no longer res integra in view of the decision of this Court in R.M. Malkani v. State of Maharashtra. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Telegraph Act, 1885 was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows: (SCC p. 477, para 24) “There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owens. The Judicial Committee in Kuruma v. R. dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.”

21. Although in Puttaswamy (supra) the 9-Judge Constitution Bench of the Supreme Court has not dealt with the law and principles of evidence in the context of the right to privacy, the observations of the Supreme Court in that case that are relevant for purposes of the present discussion are the following: On the right to privacy being a fundamental right:

On right to privacy not being an absolute right:

On the need to place right to privacy in the context of other rights and values:

28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right to privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute.” The Police Regulations were, however, not struck down, but were termed as being perilously close to being unconstitutional.”

22. It is crucial to note however, that at the time that the decisions in M.P. Sharma & Ors. vs. Satish Chandra & Ors.24 and subsequently in Pooran Mal (supra) were rendered, privacy was not recognised as a fundamental right under the Constitution, as indeed no such right had been expressly enunciated by our Founding Fathers. Today however, in Puttaswamy (supra), our Supreme Court has recognised privacy as a fundamental right, while qualifying it to say that the right to privacy is not absolute but is subject to exceptions, limitations and contours; and must be placed in the context of other rights and values. However, even at the time of M.P. Sharma (supra) and Pooran Mal (supra), Articles 14, 19(1)(f), 19(1)(g), 20(3) and 31, under which these cases arose, were very much in Part-III of the Constitution dealing with fundamental rights; and yet the Supreme Court opined that merely because a search or seizure was illegally conducted and may amount to breach of a fundamental right, that would not make the search or seizure invalid in law. Applying the same principle, this court is of the view that although today, privacy is recognised as a fundamental right, that alone would not make evidence collected in breach of that right, inadmissible. Muchless would it negate the specific statutory dispensation contained in section 14 of the Family Courts Act, which says that evidence AIR 1954 SC 300 would be admissible, whether or not the same is otherwise relevant or admissible under the Evidence Act.

23. While a litigating party certainly 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. 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.

24. Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial. Reference in this regard may be made to the observations of a 5-Judge Constitution Bench decision of our Supreme Court in Sahara India Real Estate Corporation Limited & Ors. vs. Securities and Exchange Board of India & Anr.25, where the court observes thus: “..... It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under of Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in an appropriate case one right (say freedom of expression) may have to yield to the other right like right to a fair trial. Further, even Articles 14 and 21 are subject to the test of reasonableness after the judgement of this Court in Maneka Gandhi v. Union of India.”

25. In fact, the rule of evidence that the test of admissibility of evidence is only its relevancy, laid down inter-alia in Pooran Mal (supra) has been followed by our courts even after Puttaswamy (supra). In one of the most recent judgments in Yashwant Sinha & Ors. vs. Central Bureau of Investigation through its Director & Anr.26, where the issue before the Supreme Court was whether it should permit certain documents, which the State Authorities alleged had been unauthorisedly removed from the records of the Ministry of Defence, to be placed on record in a review petition; and whether the review petitioners should be permitted to rely upon such unauthorisedly procured documents. The Attorney General had submitted that the Supreme Court could not consider these documents. Dealing with this objection the Supreme Court opined as under:

26. Coming now to the scope and purport of section 14 of the Family Courts Act, that has been discussed in a judgment of a Co-ordinate Bench of the Bombay High Court in Deepali Santosh Lokhande vs. Santosh Vasantrao Lokhande27, in which case, while deciding an application to bring on record electronic evidence under section 65B of the Evidence Act, the Bombay High Court has taken the following view:

27. In this court's opinion, the Legislature being fully cognisant of the foregoing principle of admissibility of evidence, has enacted section 14 infact to expand that principle insofar as disputes relating to marriage and family affairs are concerned; and the Family Court is thereby freed of all rigours and restrictions of the law of evidence. The Legislature could not have enunciated it more clearly than to say that the Family Court “may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872”. Therefore the only criterion or test under section 14 for a Family Court to receive, that is to say admit, evidence is its subjective satisfaction that the evidence would assist it to deal effectually with the dispute. It may also be relevant to note that under section 13 of the Family Courts Act, parties are to represent themselves without the assistance of lawyers; and therefore even more so, all technical aspects of admissibility of evidence are to be ignored before a Family Court, since parties appearing in-person cannot be expected to be well versed with the technicalities of the law of evidence. Reference in this regard may be made to the observations made by a Division Bench of the Bombay High Court in Shiv Anand Damodar Shanbhag vs Sujata Shiv Anand Shanbhagh28.

28. For the record, the vires of section 14 of the Family Courts Act has not been challenged by the petitioner in these proceedings.

29. To be sure, in view of the expressed intention of the Legislature in section 14 of the Family Courts Act, all that is being said here is that 2013 SCC OnLine Bom 421 evidence, whether collected legitimately or otherwise, may be received by the Family Court if it is of opinion that the evidence would assist it to effectively decide the dispute. It is not being suggested that the Family Court is bound to believe, accept or act upon such evidence for purposes of adjudication.

30. As observed by the Bombay High Court in the aforementioned case, it is noteworthy that, what is permitted under section 14 is only for the Family Court to receive evidence without the rigours and shackles of the conventional rules of evidence, with the only threshold test being that in the opinion of the Family Court that piece of evidence will assist it to deal effectively with the dispute at hand. Thereafter however, the Family Court is free to either accept or discard or give weightage or disregard a particular piece of evidence when finally adjudicating the dispute. As under the ordinary law of evidence, so also under section 14, there is absolutely no compulsion on the Family Court to accept a given piece of evidence as proof of a fact-in-issue or of a relevant fact, merely because such evidence has been taken on record by disregarding all rigours of the rules of evidence. Correspondingly, it is open to the contesting party to dispute, cross-examine and disprove the evidence so cited; and to thereby contest any claim being made on the basis of such evidence. The limited relaxation as it were, in section 14 is that even if under the Evidence Act or under conventional rules of evidence, a certain piece of evidence (whether a report, statement, document, information or other matter) is ex-facie found to be not relevant and therefore not admissible, the Family Court may yet receive such evidence on record if in its opinion, the evidence would assist it to deal effectively with the dispute. What credence, value or weightage is to be given to the evidence so received is discretionary upon the judge, when finally adjudicating the dispute.

31. Another settled principle of interpretation of statutes that guides us in understanding the scope and operation of section 14 is the maxim 'generalia specialibus non derogant’. In Barker vs. Edger & Others29, the Privy Council of the House of Lords has pithily summarised the purport of the maxim in the following words: “The general maxim is, “Generalia specialibus non derogant.” When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.” While in the above case, the Privy Council was dealing with a subsequent general enactment, the principle applies a fortiori to a subsequent special enactment. That is to say, a special enactment would prevail, whether made earlier or subsequently, over a general enactment if that is the discernible intention of the Legislature in relation to the subject matter of the special enactment. Our Supreme Court has also dealt with the issue in Sharat Babu Digumarti vs. Government (NCT of Delhi)30 in which the issue was of construing section 81 of the Information Technology Act 2000, which provision is in pari materia with section 20 of the Act and 1898 AC 748 gives an overriding effect to the Information Technology Act over anything inconsistent therewith contained in any other law for the time being in force. The other provision of law in question was section 292 of the Indian Penal Code 1860 which makes the sale of obscene books etc. a penal offence. In Sharat Babu Digumarti (supra), the Supreme Court has opined as under:

32. To address the aspect whether ethical and moral considerations should be factored-in to decide admissibility of evidence, attention may be drawn to the observation of the Supreme Court in Pooran Mal (supra), where the court said that when there is no express or specifically implied prohibition in the Constitution, it is uncalled for and unwarranted to invoke the spirit of the Constitution to exclude evidence. Equally so, in the face of the settled rule of evidence as augmented by section 14 of the Family Courts Act, it would be unwarranted to bring into the picture subjective and undefined ethical and moral values or considerations, to decide if evidence should even be receivable by a Family Court. Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be (i) in breach of section 14 which unequivocally expresses the intention of the Legislature; (ii) in breach of settled principles of evidence; and (iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values. Such construction would have more potential for mischief than possible salutary effect.

33. If it were to be held that evidence sought to be adduced before a Family Court should be excluded based on an objection of breach of privacy or some other cognate right, then in many a case the provisions of section 14 would be rendered nugatory and dead-letter. It must be borne in mind that Family Courts have been established to deal with what are essentially sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which they arise, involve issues that are private, personal and involve intimacies. It is easily foreseeable therefore, that in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties. If section 14 is held not to apply in its full expanse to evidence that impinges on a person's right to privacy, then section 14 may as well be effaced from the statute. And yet, falling back upon the general rule of evidence, the test of admissibility would only be relevance; and accordingly, even ignoring section 14, fundamental considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be served by emasculating the salutary provisions of section 14 of the Family Courts Act by citing breach of privacy. Looking at it dispassionately, even assuming evidence is collected in breach of privacy, at best and at worst, it is the process of collection of evidence that would be tainted not the evidence itself.

34. The sequitur to the aforesaid constitutional and legal landscape is that: (a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication; (b) Merely admitting evidence on the record is not proof of a factin-issue or a relevant fact; admitting evidence is not even reliance by the court on such evidence; admitting evidence is mere inclusion of evidence in the record, to be assessed on a comprehensive set of factors, parameters and aspects, in the discretion of the court;

(c) The limited threshold test of ‘relevance’ ensures that the right of a party to bring evidence to court, and thereby to a fair trial, is not defeated. What weight is to be given to evidence so brought-in, and whether or not the court ultimately relies upon such evidence for proof of a fact-in-issue or a relevant fact, is always in the discretion of the court. This, a court may do on other considerations, including considerations of justice and fair play. We must be clear that the test of admissibility is only a ‘threshold test’, which opens the doors of the court, as it were, so that relevant evidence brought by a litigating party is permitted entry into the court records. It does not bind the court to treat such evidence as proof of a fact-in-issue or relevant fact. Section 14 of the Family Courts Act makes this threshold test even less stringent, in that the Family Court may receive evidence, whether or not it would otherwise be relevant or admissible under the Evidence Act, provided in its opinion such evidence would assist it in effectively dealing with the dispute;

(d) It appears that a crucial facet of the above rule of evidence has so far been ignored, namely the consequences that may follow if evidence is collected illegally by violation of someone’s rights. Merely because a court allows evidence to be admitted, does not mean that the person who has illegally collected such evidence is absolved of liability that may arise, whether in civil or criminal law or both; (e) Although MP Sharma (supra) and Pooran Mal (supra) were decided before the right to privacy was authoritatively recognised as a fundamental right in Puttaswamy (supra), the challenge in those two cases also arose from allegations of violation of fundamental rights inter alia under Articles 20(3) and 14 of the Constitution. Also, the decision in Puttaswamy does not allude to any change in the principles of admissibility of evidence by reason of recognition of privacy as a fundamental right; and in fact the principle of Pooran Mal has been followed by the Supreme Court even as recently as 2019 in Yashwant Sinha (supra), which is a post-Puttaswamy judgment, though in the context of documents procured illegally from a ministry and not in breach of any fundamental right; (f) Drawing from the observations of the Supreme Court in Tukaram S. Digole (supra), a word of caution would be in place here. The Family Court must bear in mind that tape recordings are more susceptible to tampering and alteration by transposition, excision etc., which may be difficult to detect; and therefore such evidence must be received and treated with caution and circumspection; and, to rule-out the possibility of any kind of tampering, the standard of proof applied by a court for the authenticity and accuracy of a tape recording should be more stringent as compared to other documentary evidence; (g) In the context of section 50 of the NDPS Act, in Baldev Singh (supra) the Supreme Court has said that while considering the aspect of fair trial, the nature of evidence obtained and the nature of the safeguard violated are both relevant factors. If therefore, evidence has been collected in a search conducted in violation of the statutory mandate of section 50 of the NDPS Act, the admission of such evidence would make the trial unfair; and in that circumstance, the evidence must be excluded. Under the Family Courts Act, on the other hand, the statutory mandate of section 14 is to relax the rules of admissibility of evidence, which relaxation must therefore guide the Family Court.

35. That being said however, considering the breadth of the power conferred upon it under section 14 of the Family Courts Act, some safeguards are required to be considered by the Family Court while exercising its power to receive evidence under that provision. Firstly, even though a given piece of evidence may have been admitted on the record, the Family Court must be extremely circumspect in what evidence it chooses to rely upon in deciding the dispute, particularly the authenticity and genuineness of the evidence, for which stringent standards must be applied. Secondly, if in its opinion the nature of the evidence sought to be adduced is inappropriate, embarrassing or otherwise sensitive in nature for any of the litigating parties, or for that matter for some other person not directly connected with the litigation, the court may restrict the parties who are present in court at the time of considering such evidence; or may anonymise or redact the evidence; or may conduct in-camera proceedings so as not to cause distress to any person or party, while at the same time not hesitating to receive evidence that the Family Court considers necessary for effectively deciding the dispute. All proceedings must be conducted strictly within the bounds of decency and propriety; and no opportunity should be given to any party to create a spectacle in the guise of producing evidence. Thirdly, in egregious cases, the Family Court may initiate or direct initiation of legal action against a litigating party or other person, who may appear guilty of procuring evidence by illegal means. Any party aggrieved by the production of such evidence would also be at liberty to initiate appropriate proceedings, whether in civil or criminal law, against concerned parties for procuring evidence illegally, although the initiation or pendency of such proceeding shall not make the evidence so produced inadmissible before the Family Court.

36. It may be noted that in the impugned order the Family Court has expressed its subjective opinion that the recording comprised 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, upon a combined reading of sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.

37. 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. For instance, if a spouse has the carte blanche 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 circumstances of matrimonial discord, it would be difficult to foresee the length to which a spouse may go in doing so; and such possibility would itself spell the end of the marital relationship. It is not uncommon for spouses to continue living together, even in matrimonial strife, for years on-end. So, 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.

38. In the above view of the matter, and subject to the above observations, this court finds no infirmity in the impugned order and the same is upheld.

39. The petition is disposed of in the above terms, leaving the parties to bear their respective costs.

40. Pending applications, if any, shall also stand disposed of.

ANUP JAIRAM BHAMBHANI, J. June 30, 2020 vk/Ne