Delhi HC admits evidence that is collected in breach of privacy

The Delhi High Court ruled that any evidence collected by breach of someone’s privacy does not automatically make it inadmissible in court. The judgement was passed by a single Judge bench of Justice Anup Jairam Bhambhani in the case of Deepti Kapur vs Kunal Julka.

The issue at hand arose from a matrimonial dispute which was pending before the Family Court by way of a divorce petition. In the divorce proceedings, the husband filed a Compact Disc (CD) which contained an audio-video recording of the wife supposedly speaking with her friend on phone and talking about the husband and his family in a manner, which the husband claims was derogatory, defamatory and constituted cruelty to him.

The wife opposed the CD being brought on record on the following grounds:

• that the contents of the CD were tampered with and were therefore not authentic
• that the contents of the CD were not admissible in evidence since they were a recording of a ‘private’ conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.

What do you mean by Evidence?

According to Indian Evidence Act, evidence may be given of facts in issue and relevant facts. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Contention of the Wife

It was argued that, although section 14 of the Family Courts Act 1984 empowers a Family Court to receive evidence, if in the opinion of the Family Court, such evidence assists it to deal effectually with a dispute, whether or not the same is otherwise relevant or admissible under the Indian Evidence Act 1872, yet this section does not permit evidence which is inadmissible “as per the Constitution” to be taken on record.

Reference to an earlier case

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.

Contention of Husband

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.

Opinion of the High Court

The court was of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the husband and the status of the matrimonial life would certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant.

In view of Section 14 of the Family Court Act, the evidence cannot be thrown out on the ground that the same is inadmissible. The argument that the admissibility mentioned in Section 14 of The Family Courts Act pertains to admissibility under Indian Evidence Act and not under the Constitution of India did not influence the court.

“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.

The question of admissibility has been defined only under the Indian Evidence Act and there is no way that appreciation of admissibility of evidence can be carried out under Constitution of India. Therefore, court was of the opinion that the audio-video recording, as contained in the CD is certainly permissible to be taken on record and considered for effectively adjudicating the dispute between the parties.

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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