Recording Phone Conversation Without Permission Violates Right To Privacy Under Article 21: Chhattisgarh High Court

The Chhattisgarh High Court has held that recording telephonic conversation without the knowledge and permission of the person concerned violates her ‘right to privacy’ under Article 21 of the Constitution.

While quashing an order which allowed use of such recording as evidence, the bench of Justice Rakesh Mohan Pandey held :

“…it appears that the respondent has recorded the conversation of the petitioner without her knowledge behind her back which amounts to violation of her right to privacy and also the right of the petitioner guaranteed under Article 21 of the Constitution of India.”

An application under Section 125 of the CrPC was filed by the petitioner (wife) for grant of maintenance, which stands pending before the Family Court, Mahasamund since 2019. The petitioner led her evidence and thereafter, the case was fixed for examination of the witnesses and production of documents.

Respondent (husband) moved an application under Section 311 of the CrPC along with a certificate under Section 65-B of the Indian Evidence Act for re-examination of the petitioner on the ground that a conversation of the petitioner was recorded on his mobile phone and he wants to cross-examine her confronting with the said conversation.

The trial Court allowed the said application. Being aggrieved by the said order, the petitioner approached the High Court with a prayer to set aside the same as that would tantamount to violation of her right to privacy.

The counsel for the petitioner contended that the trial Court has committed an error of law by allowing the application as it infringes the right of privacy of the petitioner and without her knowledge conversation was recorded by the respondent and therefore, the same cannot be used against her.

On the other side, the counsel for the respondent submitted that the respondent-husband intends to produce certain evidence to prove some allegations against the petitioner. He has the right to confront the petitioner with the conversation which was recorded on his mobile phone.

Court’s Observations

The Court, for deciding the legal tenability of the lower Court’s order, placed reliance upon a number of judgments delivered by the Supreme Court including the one in People’s Union for Civil Liberties v. Union of India, wherein it was held as follows:

“Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”

The Court also relied upon the Apex Court’s decisions in R.M. Malkani v. State of Maharashtra and Mr. ‘X’ v. Hospital ‘Z’, where different facets of right to privacy were discussed.

The court further referred to the observations made by the Madhya Pradesh High Court in a similar case titled Arunima alias Abha Mehta v. Sunil Mehta, where the Court had the occasion to decide the evidentiary value of conversation recorded behind the back and it was held as follows:

“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 19 & 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.”

Therefore, having regard for the afore-cited decisions, the Court was of the considered view that the respondent-husband recorded the conversation of his wife behind her back and without her knowledge and thus, it would amount to violation of her right to privacy guaranteed under Article 21.

“Further, the Right of Privacy is an essential component of right to life envisaged by Article 21 of the Constitution, therefore, in the opinion of this Court, the learned Family Court has committed an error of law in allowing the application under Section 311 of the CrPC along with the certificate issued under Section 65 of the Indian Evidence Act.”

Consequently, the impugned order was set aside.

Counsel for the Petitioner: Mr. Vaibhav A. Goverdhan, Advocate

Counsel for the Respondent: Mr. T. K. Jha, Advocate

Case Title: Aasha Lata Soni v. Durgesh Soni

Citation: 2023 LiveLaw (Chh) 29

Case No.: CRMP No. 2112 of 2022

Date of Order: October 5, 2023

Click Here To Read/Download Order