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New Delhi: Any evidence collected by breaching someone’s privacy does not automatically make it inadmissible in court, ruled the Delhi High Court, while permitting a man to place an audio-video recording of his wife’s conversation with a friend on record.

The bench comprising Justice Anup Jairam Bhambhani held that even though privacy is recognised as a fundamental right, that alone cannot make evidence collected in breach of that inadmissible.

The right of privacy must yield to the right of a fair trial, the judge said, upholding a family court’s order to admit a compact disc of the wife’s telephonic conversation with her friend as evidence, in which she allegedly spoke in a derogatory manner about her husband and his family.

The court was hearing an appeal filed by the woman against this order, claiming her “private” conversation was secretly recorded by her husband, in violation of her fundamental right to privacy.

Her conversation was produced by the husband in support of his petition asking for divorce on the ground of cruelty and mental harassment.

“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,” said the judge.

However, the court also clarified that admission of evidence does not amount to proof of a fact but is merely putting the evidence on record to be assessed comprehensively by the court.


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Right to fair trial outweighs right to privacy

In her appeal against a family court’s 24 December 2018 order, the wife opposed the decision to take the CD and transcript of her conversation, on record. Her opposition was on two grounds — first, the CD was tampered with and second, the contents were inadmissible in evidence as the husband had recorded a “private conversation.”

The talk was secretly recorded on a closed-circuit television (CCTV) camera installed by the husband in their bedroom, without her knowledge and consent, she contended before the court.

Since the evidence compromised her privacy, the same was not admissible in a court of law, she said, quoting the 9-judge bench verdict of the Supreme Court in the K.S. Puttaswamy case to argue that privacy was a fundamental right that cannot be meddled.

In a 2017 judgment, the Supreme Court had held that right to privacy was part of Article 21 (Right to Life) and a fundamental right.

In response to the wife’s objections, the husband said he had moved an application before the Family Court to appoint an expert to prove the CD was genuine, a plea that was allowed by the lower court. To the wife’s contention on privacy, the husband said although it has been recognised as a fundamental right, it is not absolute but subject to exceptions.

He was entitled to a free and fair trial for which he had to establish cruelty on his wife’s part, he told the bench. In these circumstances, his wife’s right to privacy must give way to his right to bring evidence to prove his case, he asserted.

To deny him this chance would amount to denial of right to fair trial guaranteed to him under Article 21, he added.

Justice Bhambani took a view that the decision in the Puttaswamy case does not allude to any change in the principles of admissibility of evidence. Also, he said, right to fair trial outweighed right to privacy, as the former impacts public justice, which is a larger cause.

“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,” he said.

“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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Family Court must be circumspect in relying on evidence

Collection of evidence in breach of privacy, at best and at worst, taints the process of collection but not the evidence itself, the judge said.

Fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected, the court held.

The judge went on to cite Section 14 of the Family Courts Act to state that the law creates a special dispensation for a judge to receive evidence to effectively decide disputes before it.

However, the court added, even though a given piece of evidence may have been admitted on record, the Family Court must be circumspect in relying on evidence to decide a dispute, particularly its authenticity, for which stringent standards must be applied.

“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,” said the court.

The test of admissibility is only a ‘threshold test’, which opens the doors of the court so that relevant evidence can be brought by a litigating party, it explained.

All proceedings in a family court 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, the court said.

Furthermore, the bench said a person who collects evidence illegally cannot be absolved of a liability that may arise, as it was open for the affected party to take action under a civil or criminal law or both.

Given the fact that the case before him was a matrimonial dispute, Justice Bhambani also advised couples involved in marital discord to refrain from adopting “illegal means” to collect evidence against each other.

“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 judge said.


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