Madhya Pradesh High Court

Ram Talraja vs Smt. Sapna Talreja on 26 April, 2022

Author: Anil Verma

1                                                          MP No.949/2022




              IN THE HIGH COURT OF MADHYA PRADESH
                                  AT INDORE
                                   BEFORE

                    HON'BLE SHRI JUSTICE ANIL VERMA

                          ON THE 26th OF APRIL, 2022

                     MISC. PETITION No. 949 of 2022

    Between:-
    RAM TALRAJA S/O SHRI KAILASH TALREJA , AGED ABOUT 34
    YEARS, OCCUPATION: PRIVATE SERVICE
    R/O: 226, SACCHIDNAND NAGAR, R.T.O. ROAD, INDORE (MADHYA
    PRADESH)
                                                          .....PETITIONER
    (BY SHRI A.S. Rathore Adv.)

    AND

    SMT. SAPNA TALREJA W/O RAM TALREJA , AGED ABOUT 31 YEARS,
    OCCUPATION: TEACHER
    R/O: FLAT NO. 202, PRITHVI AVENUE, 60 VIR SAVARKAR NAGAR,
    INDORE (MADHYA PRADESH)
                                                         .....RESPONDENT
    (BY SHRI Amit Bhatia Adv.)
         This petition coming on for orders this day, the court passed the

following:

         Both the parties heard finally.



                                  ORDER

1/ Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the impugned orders dated

13.7.2021 and 8.1.2022 passed by the 1 st Addl. Principal Judge, Family Court, Indore in RCS (HM) No.947/2017, whereby admissibility of conversation between both the parties recorded in Pen Drive and its transcript is declared inadmissible in the evidence.

2/ Brief facts of the case are that petitioner has filed a petition under Section 13(1)(ia) of the Hindu Marriage Act for grant of divorce on the ground of cruelty. Respondent filed her written statement. During the examination of petitioner respondent objected to the Pen Drive being exhibited on the ground of infringement of right to privacy of respondent as the said conversation was between respondent and her sister, which was recorded without her knowledge. Vide order dated 13.7.2021 trial Court has denied the admissibility of Pen Drive and its transcript on the ground that the said conversation was incomplete and the said recorded conversation infringes right to privacy of the respondent. Thereafter petitioner filed an application for placing on record the Pen Drive and complete recorded conversation between respondent and her sister and respondent filed reply to the said application, but by the impugned order dated 8.1.2022 trial Court dismissed the application on the ground of res judicata.

3/ Learned counsel for the petitioner contended that tape recorded conversation were admissible as evidence since they fell within the purview of documents under Section 3 of the Indian Evidence Act. Learned trial Court has failed to appreciate that as per the citation of Hon'ble Apex Court in the case of R.M. Malkhani Vs. State of

Maharashtra reported in 1973(1) SCC 471 tape recording of such conversation is admissible. Trial Court has failed to appreciate that consideration of evidence by a Family Court is not restricted by the rules of relevancy or admissibility provided under the Evidence Act. Learned counsel for the appellant has placed reliance upon the judgment in the case of Punit Agrawal Vs. Murarilal and others, 2020(3) MPLJ 368, in the case of Anurima Vs. Sunil Mehta 2016(1) MPLJ 333 and in the case of Deepti Kapur Vs. Kunal Julka, 2020 SCC OnLine Del 672. Therefore, learned counsel for the petitioner prays that both the impugned orders be set aside and the application dated 12.8.2021 be allowed and documents enclosed along with the said application be taken on record.

4/ Per contra, learned counsel for the respondent opposes the same prayer and prays for its rejection by supporting both the impugned orders passed by the court below.

5/ Counsel for both the parties heard at length and perused the documents filed by the parties before this Court.

6/ Considering the above submission and the impugned orders, the sole question which arises for consideration is whether the tape recording and its transcript produced by the petitioner-husband are admissible in evidence?

7/ Admittedly the conversation was recorded without the knowledge of the respondent-wife behind her back. The coordinate bench of this Court in the case of Anurima (supra) has held that the conversation recorded without the knowledge of wife behind her back is

an infringement of her right to privacy. Besides it is violative of Article 19 & 21 of the Constitution of India.

8/ In the case of R.M. Malkhani (supra) the Hon'ble Apex Court has held that:-

"23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice'; and. thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. The conversation between Dr. Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded Conversation. The tape recorded conversation is admissible in evidence."

9/ Same principle was also laid down by the Delhi High Court in the case of Deepti Kapur (supra), but Punjab and Haryana High Court in the recent case Neha Vs. Vibhor Garg, order dated 12.11.2021 passed in CR No.1616/2020 and CR No.2538/2020 has held that:-

"Keeping in view the factual matrix of the case, it cannot be said that as the Family Court is not bound by strict rules of evidence, it is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of

the wife. The decision of Rajasthan High Court in Preeti Jain Vs. Kunal Jain and another, 2016 AIR (Rajasthan) 153, relied upon by learned counsel for the respondent-husband is not relevant in the given facts and circumstances of this case, as the same relates to a matter where the husband sought to adduce video clippings recorded through pinhole camera for establishing extra marital affair of his wife. Moreover the aspects as discussed in the foregoing paras have not been discussed therein. Therefore, acceptance of the CD by the learned Family Court allegedly containing conversation between the husband and wife recorded surreptitiously without the consent or knowledge of the wife and allowing the husband's application is unjustified."

10/ In the above matter Vibhor Garg has preferred Special Leave to Appeal No. 21195/2021 (Vibhor Garg Vs. Neha) before the Hon'ble Apex Court and the same is fixed for hearing on 25.4.2022. In the above matter Punjab and Haryana High Court has also considered the various judgments of different High Courts.

11/ In view of the law laid down by the Hon'ble Apex Court and other High Courts, it is clear that the conversation between husband and wife in a daily routine cannot be made basis or considered for deciding the petition under Section 13 of the Hindu Marriage Act and the act of recording the conversation without the knowledge of the wife is illegal and is also infringement of right to privacy and even if tape recording in question is proved, it would not be admissible in evidence as per the view expressed by this Court in the case of Anurima (supra).

12/ In view of the aforesaid observation, this Court finds no infirmity in both the impugned orders and the same are upheld.

13/ Accordingly this miscellaneous petition is dismissed.

Both the parties shall bear their own respective costs.

C.C. as per rules.

(Anil Verma) Judge Trilok/-