The Delhi High Court in a significant judgment pertaining to rules for collection and admissibility of evidence, has held that evidence collected in breach of the fundamental right to privacy alone, would not make it inadmissible in court of law.
Justice Anup Jairam Bhambhani observed that while deciding 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.
A litigating party certainly has a right to privacy and that right “must yield” to the right of an opposing party to bring evidence it considers relevant to court, to prove its case, single bench held.
OBSERVATION BY THE BENCH
“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. 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.”
An audio-video recording of the wife chatting with her friend on phone and talking about the husband and his family in a derogatory manner had been reported in the CD. The CD being brought on record was opposed by the wife on the ground that the contents of the CD were not admissible in evidence since they were a recording of a ‘private’ conversation that the wife 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 and relied on the right to privacy judgment- Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors, 1 (2017) 10 SCC 1.
The court rejected the submissions and observed,
“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.”
Relevant Evidence is admissible, regardless of manner of its collection.
The court pointed out that in the case of Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors., (1974) 1 SCC 345,the position of law regarding admissibility of illegally obtained evidence was settled by Supreme Court.Privacy at that time was not recognized as a fundamental right under the Constitution. However, even then the Supreme Court had opined that merely because a search or seizure was illegally conducted and may amount to breach of a fundamental right that would not make the search or seizure invalid in law.
The High Court held while applying the same rule,
“Although today, privacy is recognised as a fundamental right, that alone would not make evidence collected in breach of that right, inadmissible. The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected.Looking at it dispassionately, even assuming evidence is collected in breach of privacy, at best and at worst; it is the process of collection of evidence that would be tainted not the evidence itself.”
The court observed that digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. The fact that the test of admissibility as laid down in the Pooran Mal case was followed by the Indian courts, even after the Puttaswamy judgment.
By nature Family disputes involve “private” matters
Justice Bhambhani observed that Family disputes, by the virtue of their nature involve “private” matters of an individual. Therefore, the evidence adduced in most of the cases will essentially affect the right to privacy of the parties involved.
The bench observed,
“It must be borne in mind that Family Courts have been established to deal with what are essentially sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which they arise, involve issues that are private, personal and involve intimacies. It is easily foreseeable therefore, that in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties.”
Clarifications were made that the possible “misuse” of this rule of evidence, particularly in the context of the right to privacy, may 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.
Conclusion by the Court
“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.”
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)