IN THE HIGH COURT OF MADHYA PRADESH
Writ Petition No. 7479 & 7484/2014
Decided On: 21.05.2015
Hon’ble Judges/Coram: S.R. Waghmare, J.
Citation: AIR 2016 MP 112
1. These two petitions are being dealt together since they are cross petitions filed by the Petitioner / Wife, Anurima @ Abha Mehta and Sunil Mehta being aggrieved by order dated 10/07/2014 passed in HMA Case 495/10 & HMA Case 20/11 passed by the First Additional Chief Judge, Family Court, Indore.
2. Briefly stated the facts of the case are that the petitioner had filed an application under section 13 of the Hindu Marriage Act, 1955 seeking divorce from the respondent, which is pending consideration before the Trial Court, whereas, per contra, the husband has filed an application for restitution of conjugal rights against the wife. And in both the cases the husband had put forth an application dated 17/11/2011 under section 65(b) of the evidence Act to place on record the CD which contains conversation with one Mr. Vijay Agrawal and the wife. She filed reply (dated 13/02/2013) to the application dated 17/11/2011 and opposed the production of the CD on the ground that it amounts to infringement of her rights to privacy. The Trial Court vide order dated 12/08/2013 considered the application of the husband and dismissed the same holding that recording of conversation of the wife with any one; is illegal and in violation of right to privacy. This order dated 12/08/2013 was challenged by the respondent by filing writ petitions before this Hon’ble Court, which were registered as W.P. Nos. 10897/13 & 10899/13. Whereby the petitions were disposed off summarily, without notice to the wife, holding that since the application preferred by the husband was not in accordance with section 65(b) of the Evidence Act; if proper application is moved it would be considered by the Trial Court. The order passed by this Court is dated 19/09/2013, annexed as annexure P4 to this petition. Again the application was moved by the husband and was opposed by the wife, however, vide the impugned order, Trial Court has held the application of the husband to place the CD on record should be considered as evidence, hence the present petitions by the wife. It is vehemently urged by the Counsel for the respondent that despite directions from this Court in W.P. Nos. 10899/13 & 10897/13 that the applications filed by the husband are allowed.
3. Counsel for the petitioner also vehemently urged the fact that any conversation between the wife and the other person amounts to the infringement on the right of privacy of the wife and was in violation of Article 21 of the Constitution of India and that right to privacy is a part of life and personal liberty enshrining under Article 19 and 21 of the Constitution of India and was is almost similar to taping of telephones. Counsel relied on Rayala M. Bhuvaneswari vs. Nagaphanendra Rayala II MANU/AP/0907/2007 : (2008) DMC 327 stating that tap recorded conversation was not permitted as evidence for divorce petition since it was not admissible evidence and besides Right to privacy was infringed. In the similar case the husband was tapping the conversation of wife and sought permission to produce the hard disc in Court and the Court had held that the tapes even if true cannot be admissible in evidence since thereafter to make the wife to undergo voice test and then ask expert to compare portions denied by her with her admitted voice could not be permitted. Similarly, reliance has been placed by the Counsel on People’s Union for Civil Liberties vs. Union of India [MANU/SC/0149/1997 : AIR 1997 Supreme Court 568] whereby, the right to privacy is part of right to life and right to privacy would include telephone conversation in the privacy of home or office and telephone tapping would also violate Article 19(1)(a) and 19(2) i.e. freedom of speech and expression.
4. Counsel for the petitioner relied on the Gazette notification by the Indian Government, New Delhi dated 16/02/1999 whereby, rule 419(A) (i) was inserted after rule 419 in the Indian Telegraph rules 1951. Whereby, directions, where interception of any message or class of message required, order to be issued from the Secretary to the Government of India and otherwise, interception was not permitted in the Indian Telegraph rules, whereas section 72 of the Information Technology Act of 2000, forbids access to any electronic record, book, register, correspondence etc., without the permission of the person concerned and the offence is punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. Similarly, Counsel submitted that such an approach in the electronic medium was moved only in the interest of public safety and the Central Government or State Government, may, if it is satisfied that it is necessary or expedient to do so has to record the reasons in writing and only then pass the order granting such permission. Counsel submitted that the petitioner/wife has one adult son and the husband and wife have been living separately for seven years now and she is also running a school successfully. Counsel prayed that the impugned order be set aside.
5. Per Contra, Counsel for the respondent/State has vehemently opposed the submission of the Counsel for the petitioner and submitted that the respondent / husband was left with no other alternative, but to produce the tape for evidence since he has filed the application for restitution of conjugal rights against the wife and the petitioner has opposed the same for no valid or cogent reasons and it only during this period that he realised that she was having an affair with one Mr. Vijay Agrawal. Counsel placed reliance on Mr. ‘X’ vs. Hospital ‘Z’, Supreme Court Cases on 21st September 1998,[Civil Appeal No. 4641/1998], and submitted that in the said case, especially the unsoundness of mind of the respondent under the conditions was incurable and the medical testimony that required the respondent to undergo certain medical tests was permitted by the Court and in the present case also to protect the interest of the parties, the Court would pass appropriate orders regarding voice verification. Counsel also placed reliance on R.M. Malkani.vs. State of Maharashtra on 22nd September 1972, Equivalent citations: [MANU/SC/0204/1972 : AIR 157, 1973 & SCR(2) 417] and submitted that the conversation between appellant and the witness was tape recorded and the Court considered the question whether it is an admissible evidence under the Telegraph Act and the Court held that when there was no element of coercion or compulsion in attaching the tape recorder to the telephone, the High Court’s observations of the telephone call put by Dr. M, to the appellant was tapped by the Police Officer, then holding that there was violation of section 25 of the Indian Telegraph Act is erroneous and the Court held that Tape recorded conversation is admissible, provided first the conversation is relevant to the matter in issue, secondly, there is identification of the voice and thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape- recorder. The tape recorded conversation is therefore, a relevant fact and permissible in evidence. Lastly, Counsel relied on Sharda vs. Dharmpal [2003(2) CTC 760, MANU/SC/0260/2003 : AIR 2003 SC 3450] for grant of divorce, petitioner must establish unsoundness of mind of the respondent is incurable. In the similar case, Court had suo moto directed recording of evidence to arrive at conclusion whether the person is mentally ill and can defend himself and there it was held that it was not violating the Article 21 of the Constitution of India. Counsel vehemently urged the fact that in the present case also the husband’s marriage was at stake and yet he was willing to take back his wife, but he required to prove to the Court that one Mr. Vijay Agrawal was causing disharmony in their life.
6. On considering the above submissions and the impugned order, I find that the sole question that arises in consideration is whether the tapes produced by the husband are admissible evidence? Admittedly, the conversation was recorded without the knowledge of the wife, behind her back, and is definitely an infringement of her right to privacy. Besides, it is violative of article 11 & 21 of the Constitution of India and has rightly pointed out by the Counsel for the petitioner / wife, that interception in the recording conversation is permitted only under the circumstances. Besides, there is also penalty under section 72 of the Information Technology Act and it could not be used as instrument to create evidence of such nature. The cases cited by the Counsel for the respondent are not applicable in the present context and are of no use to the respondent.
7. I find that to say anything beyond the aforesaid would affect the merits of the case and hence it is held that impugned orders dated 10/07/2014 are contrary to the provisions of law and are hereby set aside. The Trial Court, however, may continue in accordance with the provisions of law. The tapes, however, cannot be admitted in evidence but it may be kept on record.
8. With the aforesaid observations and directions, both the petitions are hereby allowed to the extent herein above indicated.
C.c. as per rules.