Recording the telephonic conversation with one’s wife without her knowledge and consent is illegal, and violative of her Fundamental Right to Privacy

A single-judge bench of Justice Lisa Gill of the High Court of Punjab and Haryana heard two petitions: Neha v. Vibhor Garg (2021) C.R. No. 1616/ 2020 and Vibhor Garg v. Neha (2021) C.R. No. 2538/ 2020. The Family Court, Bathinda passed an order on January 29, 2020, wherein the husband (Vibhor Garg) was allowed to provide the CD, which allegedly contained some conversations between him and his  wife (Neha). C.R. No. 1616/ 2020 was filed by the wife in 2017 to seek divorce from her husband under Section 13 of the Hindu Marriage Act, 1955, wherein the marriage was solemnized on February 20, 2009, while a daughter was born on May 11, 2011. A new divorce petition was filed by the wife on April 03, 2018. Upon listing of  cross-examination, the husband filed an application to admit the said CD and transcriptions of conversations so recorded in the memory cards of the respective mobile devices of the couple. The learned Family Court allowed the said application via an order on January 29, 2020, subject to the proof of correctness of the contents of the CD submitted hereby. In the case of C.R. No. 1616/ 2020, the wife argued that the evidence within the CD is impermissible because it is beyond the scope of the present divorce proceedings. The learned counsel for the petitioner-wife held that the submission of the said CD violates the Right to Privacy of the wife under Article 21 of the Indian Constitution because the conversations recorded onto the CD were supposedly done so without the knowledge and consent of the wife. The learned counsel added that the Family Court had ignored Section 65B of the Indian Evidence Act, 1872, wherein the admissibility of the CD is questionable because its contents cannot be proven as true. The learned counsel for the husband held that Section 122 of the Indian Evidence Act, 1872 allows the husband to disclose any communication made to him during marriage by his wife in suits between the said husband and wife, wherein the disclosure of the conversations within the CD does not lie beyond the pleadings of divorce because one of the grounds of divorce of cruelty towards the husband at the hands of the wife can be proved by the way of the contents of the CD. The Family Court does not follow strict rules of evidence; hence, the allowance of the said application of the husband by the court must be upheld according to the learned counsel of the husband. It was contended that the submission of the said application before the commencement of the cross-examination of the husband causes no prejudice to the wife. The bench noted that the presence of the said conversations was not mentioned in the petition and the amended petition by the husband between 2010 and 2016, wherein the first mention of the said conversations in the CD and the application to submit the transcriptions of the alleged conversations recorded in the memory cards of the mobile phones of the respective spouse came on July 09, 2019, at the hands of the husband. The application noted that various conversations between the husband and the wife were recorded and stored by the husband in his phone, wherein the conversations came from two periods: November 2010 to December 2010 and August 2016 to December 2016, and were stored by the husband on a CD for his convenience. The bench added that the husband was well aware of the recorded conversations, wherein the non-inclusion of the same in the petition of divorce by the husband is questionable. The amended petition by the husband on January 07, 2018, failed to mention the said conversations.

The bench held that the consideration of the contents of the CD would violate the fundamental right to privacy of the wife, i.e. the recording of the telephonic conversation with one’s wife without her knowledge and consent invades her fundamental right to privacy. The bench noticed the impossibility in ascertaining either the circumstances under which the said conversations were held or the manner in which responses from the wife were sought by the husband due to the fact that the recording of the conversations by the husband would be surreptitious in nature. The bench added that two spouses speak a lot of things to each other without knowing that some words may be used in a court of law, wherein the production of recorded conversations with an unsuspecting partner in a court of law under Section 13 of the Hindu Marriage Act, 1955 is not feasible. It is worth noting that in the case of Dr. Tripat Deep Singh v. Dr. (Smt.) Paviter Kaur (2018) 3 RCR 71, it was held that the conversations between a husband and wife as part of their daily routine cannot be considered whilst deciding a petition of divorce under Section 13 of the Hindu Marriage Act, 1955. It is worth mentioning that the Andhra Pradesh High Court in the case of Smt. Rayala M. Bhuvaneswari v. Napaphander Rayala (2007) 31 RCR 664 held that the recording of one’s conversations with one’s wife without the consent and knowledge of the said wife is illegal and cannot be admitted in a court of law due to the infringement of the fundamental right to privacy of the said wife.

In a nutshell, the bench held that the acceptance of the said CD by the Family Court, which contains the recorded conversations between the husband and wife without the consent and knowledge of the wife is unjustified and that the acceptance of the husband’s application to the same effect is unjustified. The bench set aside the application of the husband while quashing the order of the learned Family Court; additionally, the bench ordered the Family Court to dispose the divorce petition within six months of the given judgement of the said bench.

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