"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 Delhi High Court on Tuesday sounded a note of caution against collection of evidence by "surreptitious means", in matrimonial disputes.
The single-bench of Justice Anup Jairam Bhambhani observed,
"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."
The remarks were made while hearing an appeal preferred by the wife from the order of the Family Court, allowing the husband to bring on record the evidence comprised in a Compact Disk that allegedly violated her right to privacy.
The CD purported to an audio-video recording of the wife supposedly speaking with her friend on phone and talking about the husband and his family in a derogatory manner. The wife had opposed the CD being brought on record on the ground that the same was inadmissible inasmuch it contained a 'private' conversation, which had been secretly recorded.
Applying the rules of evidence- that even if evidence is illegally obtained it is admissible- Justice Bhambhani upheld the family court order. However, he proceeded to observed that,
"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."
He illustrated that if a spouse has the carte blanche to install a recording device in a bedroom or other private space or to adopt any 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.
Nevertheless, the appeal was disposed of in terms of "liberal approach for admitting evidence".
Apart from relying on the trite principal of evidence law on admissibility of illegally obtained piece of evidence, the court considered the breadth of the power conferred upon it under section 14 of the Family Courts Act.
It observed that the Family Courts are freed of all "rigours" and "restrictions" of the law of evidence.
"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," the court noted while emphasizing that the even the test of "relevancy" of evidence does not apply in family disputes.
In the present case, the bench noted, the Family Court had expressed its subjective opinion that the recording comprised in the CD will "certainly assist it in deciding the dispute" between the parties. It therefore upheld the impugned order.
The bench expressed that ethical and moral considerations should not be factored-in to decide admissibility of evidence. Relying on the Supreme Court's verdict in Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors., (1974) 1 SCC 345, the bench observed,
"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."
Before parting, the bench suggested that 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," it added.
Case Title: Deepti Kapur v. Kunal Julka
Case No.: CM(M) 40/2019
Quorum: Justice Anup Jairam Bhambhani
Appearance: Advocate Rakesh Vats (for Appellant); Advocate Kaadambari Singh Puri, with Advocate Lovina Ropia (for Respondent)
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