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Setting aside Family Court's order that had allowed a husband to use CDs as evidence which contained recorded conversations between him and his wife, Punjab and Haryana High Court observed that "recording wife's telephonic conversations without her knowledge is a clear-cut infringement of her right to privacy. 

The Bench of Justice Lisa Gill also held that in the ongoing divorce suit, Family court's acceptance of the Compact Disks (CDs) on which conversations between the husband and wife had been surreptitiously recorded was also a clear breach of wife's fundamental right i.e. her right to privacy.

The Family Court had allowed the husband to prove the telephonic conversation between him and his wife in the divorce suit (under section 13 of the Hindu Marriage Act, 1955) to make out a case of cruelty against his wife. Husband wanted to prove the allegations of cruelty leveled by him against his wife using the recorded conversation. 

Presently, the High Court was hearing wife's petition that she had filed challenging the order of Family Court, Bathinda whereby the husband has been allowed to prove the CDs subject to the condition of its correctness.

The wife had told the court that there was a dispute going on between her and her husband and her husband had filed for divorce before the family court in the year 2017.

She had also said that when her husband sought to produce the recording of their telephonic conversation, the family court had allowed him, however, it was absolutely impermissible.

Her counsel had argued that these CDs were a clear-cut infringement and downright invasion of wife’s privacy thus a violation of Article 21 of the Constitution of India, as the conversations had been recorded without her knowledge, what to say of her consent.

He had also argued that the Family Court had also given a complete go bye to Section 65 of the Indian Evidence Act, because even if the recording were through a mobile phone, CDs of that recording and transcripts thereof, in any case, could not have been accepted as evidence thereof. "Moreover, there is non-compliance of Section 65-B of the Evidence Act," he had further added. 

On the contrary, the husband's counsel had argued that there was no question of any infringement of right of privacy as the recorded conversation was not beyond husband's pleadings as it had always been husband's case that he had been treated with cruelty by his wife.

He had further contended that the conversations so recorded were only an attempt to prove that the wife used to treat the husband in a cruel manner.

He had also averred that in view of Section 14 and 20 of the Family Courts Act (the Act), Family Court is not bound by the strict rules of evidence, therefore, Family Court had correctly allowed husband's application that sought permission to prove the contents of the CDs. 

To this, the high court opined that even if it was accepted that the general averments in the petition regarding cruelty would've been proved by the evidence that was sought to be produced, the CDs in question could not be permitted in evidence.

Court observed, "To permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act, would indeed not be feasible."

Court elaborated that a court would be ill-equipped to assess the circumstances in which a particular response may have been elicited from a spouse at a given point of time, notwithstanding the right of cross-examination.

Further, taking note of the factual matrix of the case, the court also held that it could not be said that the Family Court was not bound by strict rules of evidence.

Accordingly, keeping in view the facts and circumstances of the matter, court allowed wife's plea and set aside the impugned order further directing the Family Court for expeditious disposal of the divorce suit pending before it.

Case title - Neha v. Vibhor Garg