This article has been written by Mr. Yash Prashar, a 2nd year Student of Rizvi Law College, Mumbai.
ABSTRACT:
Divorce cases in India are not rare anymore, and sometimes the situation can go a bit out of control as the procedure of divorce can take a serious turn of making allegations against each other in the Court of Law. There is nothing new in this, that either of the partners approaches the Court to prove that the other is guilty of something unacceptable by the idea of marriage or which is considered as a valid ground of divorce according to the Law of the Land. The grounds can include Cruelty, Adultery, or some diseases that can be harmful to the other partner as well. And to ask for divorce by mentioning any of these reasons, the opposite party must prove their allegations in the Court, however, the process for the same is not serene at all. The Laws in India have provided certain provisions by which the evidence can be considered as admissible and the Court shall deliver its judgment based on those, however, the said evidence might breach the Right to Privacy of the accused and that can be considered as the infringement of Rights. While reading the judgments of the cases similar to that, it can be observed that the Supreme Court and certain High Courts have taken different stands in similar kinds of situations. Right to Privacy comes in the way of mentioning evidence in the Court. The article below mentions the different stands by the Courts while hearing such kinds of cases.
INTRODUCTION:
A strange sort of unrest arises between a married couple when they decide to separate their paths because of toxic differences, and to show himself/herself above the other, they try to pile up evidence against the other. Marriage is said to be a pure bond between a man and a woman and the journey of their married life remains sacred throughout their lives, however, after the implementation of the Hindu Marriage Act of 1955, the Parliament granted the rights to the married couple to opt for divorce if any or both of them do not feel compatible enough to live with each other. The said Act states certain Grounds by which Divorce can be granted by the court, those grounds include Adultery, Cruelty, Bigamy, and a few more. To accept the given grounds, the court always looks for valid and adequate proofs and for that evidence is required. We have seen in several case proceedings, that the appellant submitted video or audio recordings or screenshots of messages or WhatsApp Chats or similar technological evidence in front of the Court to prove their arguments. However, the question arises whether the evidence is admissible or not. And if that is admissible, then what about the Right to Privacy to the person whose chats or recordings are shown in the Court? Different Courts at Different times have dealt with similar issues and have interpreted the laws as per their knowledge of the law.
HINDU MARRIAGE AND DIVORCE:
Before 1955, there was no provision for Hindus to take divorce and move on in their particular lives, especially for women, their life was solely dedicated to serving their husbands and looking after the kids and home. In Hindu society, marriage has always been considered an unbreakable sacred bond between two individuals of opposite genders, and the roles of the two after marriage were also pre-decided, a woman’s role was to live inside the house all the time and take care of the family and a man’s role to go out and earn money to make the ends meet financially.
After the execution of the Hindu Marriage Act of 1955, life changed for the Hindus as the Right to Divorce was granted through Section 13 of the act but based on certain grounds which needed to be proved in front of the Court. Later Amended, Section 13B was included which defined divorce by mutual consent. Adultery and Cruelty remain the most controversial reasons for getting a divorce because these two can affect the reputation of a person in the eyes of society.
TECHNOLOGICAL EVIDENCE FOR DIVORCE:
If not by mutual consent, a divorce request can only be accepted by the Court if either of the parties come up with valid proof to give weight to their arguments. During the winter phase of the marriage, the couple sometimes tend to gather an adequate amount of evidence so that they can prove the other side’s inhuman actions in the Court. With the changing times, people have many more ways to collect evidence and the most common method is recording audio or video of the other one or taking screenshots of the WhatsApp Chats or Messages. Before the implementation of the Information and Technology Act of 2000, there was no such mention of evidence in the form of electronic records, but things changed after the implementation.
The question arises, Are these evidences admissible before the Court? There have been several cases in which the validity of such evidence has been an issue.
However, the judgment of K. Velusamy vs. N. Palanisamy by the Supreme Court of India, made it clear that electronically recorded conversations can be considered admissible evidence by the Courts if it is relevant to the issue and accuracy is also verified.
The supreme Court, while delivering the judgment in the case of Ram Singh vs. Col Ram Singh, has clearly mentioned a few criteria by which such evidence can be examined. In such situations, a) the identification of the voice of the speaker is mandatory, b) satisfactory evidence must be provided to prove the accuracy of the tape-recorded statement, and c) there should be no possibility of tampering with the recorded audio. The mentioned points are still looked upon by the Court while delivering judgments that involve such issues.
Inserted by the Amendment in 2000, Sections 65A and 65B of the Indian Evidence Act of 1872, state the factors by which an electronic record shall be admissible or not. Section 65A states that Section 65B contains the content that shall be considered valid or admissible. Section 65B clearly states that any information contained in an electronic record shall be admissible in any proceedings if the documents are satisfied in relation to the matter of the proceeding.
WHAT ABOUT RIGHT TO PRIVACY?
When either of the parties shows any of the above-mentioned evidence in the Court, Can it not be considered as an infringement of the other party’s Fundamental Right? In the case of K.S. Puttaswamy, the Supreme Court has interpreted that the Right to Privacy is a part of Article 21 of the Constitution of India which states the Right to Life and Liberty.
The importance of Privacy in a relationship is considered unparalleled in the views of the judiciary and law. The cases in which one of the party bring technological evidence to the Court, the opposition cries Right to Privacy, and the whole issue gets diverted to recognizing whether the act has infringed the Right to Privacy or not.
Section 122 of the Indian Evidence Act of 1872, states Communication during Marriage and elaborates it by mentioning that both the individuals who are married to each other, have no right to leak the communication to any third person, which happened between the two. This Section protects the dignity of both and also provides a sense of security for the talks that both of them have had.
A similar incident happened in the case of Rayala M. Bhuvaneshwari vs. Nagaphanender Rayala, where the husband recorded the audio tape of his wife, making calls to her family and friends. The Andhra Pradesh High Court denied the validity of the evidence by considering it non-admissible as it infringed on the Right to Privacy of the wife.
The Delhi High Court while hearing the case of Deepti Kapur vs. Kunal Julka, heard the audio recording, presented to it by the husband which exposed his wife’s derogatory words towards him and his family, during a phone call with her friend. The Court took it as an offense and ordered action against the husband for infringing rights, in place of considering the wife’s act as cruelty.
On the other hand, the Bombay High Court while hearing the case of Havovi Kersi Sethna v. Kersi Gustad Sethna, ordered that the husband’s reliance upon the call recording is not a problem and said that the voice should be verified by the expert. The Court took a correct stand while focusing on the evidence rather than sticking to just one point.
Also, The Supreme Court in the judgment of State of M.P. v. Paltan Mallah, held that the evidence collected illegally or in violation of the law will not be considered inadmissible unless there is a serious prejudice caused to the accused.
A video was circulated on Social Media in which the husband planted a camera in his living room to record the cruel activity of his wife towards him. It was visible in the video that the wife was attacking her husband with a cricket bat mercilessly. Similarly, there was a viral video in which the wife recorded her husband lying down on the bed in an uncomfortable position with some other lady, which amounts to Adultery as per the law. These videos had surely infringed on the Right to Privacy but also are a shred of credible evidence to prove the allegations of the appellant.
Subsequently, the Supreme Court has delivered judgment while keeping an eye on the importance of shreds of evidence be it a recording or Chats but some High Courts are still confused about the same.
SUGGESTIONS:
In my view, the Courts should acknowledge the importance of evidence in Divorce Cases. Even in these times, Divorce is considered taboo, and it takes a lot of guts for a person to go against society’s norms and choose to move on in life. The person might be a victim of cruelty by his/her partner, and in these situations, the victim tries to collect evidence to prove the allegations in front of the Court and if the Court rejects the claim by saying that the video or audio is an infringement of Privacy, then it is putting a life on risk.
The Courts should involve, the evidence after verifying the accuracy and sound while delivering the judgment so that justice prevails and the offender gets rightful treatment through judicial action.
Indian judicial system needs to look beyond the theoretical implication of law and should focus on giving judgments according to the situation that has been created. If the Court delivers a judgment while ignoring the valuable evidence then Isn’t it a violation of Audi Alteram Partem? The Court is refusing to acknowledge certain arguments just because they violate privacy.
During a court proceeding, both parties make serious allegations against each other, one might accuse the other of Adultery, and then that person must be granted the right to bring relevant evidence to prove his/her claim, rather than just relying on the arguments.
CONCLUSION:
In spite of the judgments by the Supreme Court of India, mentioning the validity of electronic records as a piece of admissible evidence during a Court proceeding, there have been several judgments by certain High Courts, in which they have not considered audio or video recording as valid evidence but they have taken a view that that evidence infringes the Right to Privacy of the other person and that is why they consider electronic records as inadmissible evidence, which is also in fact against the law that is mentioned In the Section 65B of the Indian Evidence Act of 1872, which clearly justifies the applicability of the evidence recorded through or in the electronic records. The Parliament has not yet clarified the importance of the Right to Privacy with respect to the evidence in Divorce cases. The rift between the decisions of the Courts has created a sense of unrest on both sides as the confusion is still not clarified by the executives. We have seen in the Delhi High Court’s judgment that the court not only refused to entertain the audio recording but also took action against the husband for infringing the Right to Privacy of the wife. The victim of Cruelty by the partner has only a few options to prove his/her allegations, and that is through eye-witness or recordings, and if the Court rejects the evidence then justice surely does not prevail in such a situation.
REFERENCES:
Acts Referred-
The Constitution of India, 1950
The Indian Evidence Act, 1872
The Hindu Marriage Act, 1955
Articles Referred-
This Article was originally written by Bharat Vasani and Varun Kannan and published on Cyril Amarchand Mangaldas website. The link for the same is herein: https://corporate.cyrilamarchandblogs.com/2021/01/supreme-court-on-the-admissibility-of-electronic-evidence-under-section-65b-of-the-evidence-act/
This Article was originally written by Julia Leveridge and published on KSR Legal website. The link for the same is herein: https://www.ksrlegal.com/blog/2016/june/navigating-technology-and-social-media-in-divorc/
This Article was originally written by Anubhav Pandey and published on Blog iPleaders website. The link for the same is herein: https://blog.ipleaders.in/voice-recording-evidence/
This Article was originally written by Shonee Kapoor and published on the Shonee Kapoor website. The link for the same is herein: https://www.shoneekapoor.com/call-recordings-matrimonial-disputes/
This Article was originally written by Ruchitha Bafna and published on the Lawyers Club India website. The link for the same is herein: https://www.lawyersclubindia.com/articles/can-a-husband-use-his-wife-s-secretly-recorded-phone-conversations-as-evidence-in-a-divorce-case-14564.asp
This Article was originally written by Kalaskarnetra and published on the Legal Service India website. The link for the same is herein: https://www.legalserviceindia.com/legal/article-9614-modes-of-call-recordings-accepted-by-court.html
Case Laws-
Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018. The link for the same is herein: https://indiankanoon.org/doc/127517806/
Ram Singh & Ors vs Col. Ram Singh 1986 AIR, 3 1985 SCR Supl. (2) 399. The link for the same is herein: https://indiankanoon.org/doc/22898/
Rayala M. Bhuvaneswari vs Nagaphanender Rayala AIR 2008 AP 98, 2008 (2) ALD 311, 2008 (1) ALT 613. The link for the same is herein: https://indiankanoon.org/doc/1058685/
Mrs.Havovi Kersi Sethna vs Mr.Kersi Gustad Sethna on 28 January, 2011. The link for the same is herein: https://indiankanoon.org/doc/391935/
K.K. Velusamy vs N. Palaanisamy on 30 March, 2011. The link for the same is herein: https://indiankanoon.org/doc/1126109/
State Of M.P Through C.B.I., Etc vs Paltan Mallah, Etc on 20 January, 2005. The link for the same is herein: https://indiankanoon.org/doc/1182563/
Deepti Kapur vs Kunal Julka. The link for the same is herein: https://indiankanoon.org/doc/170404652/