The Gujarat High Court has recently ruled that a Family conversation secretly recorded by a wife to substantiate her claims of domestic violence and cruelty against her husband and his family are admissible as evidence. The Court emphasized that in family matters such recordings are relevant and admissible even if made without the knowledge of the husband and his family, regardless of their compliance with the Evidence Act.
Brief Facts of the case
The petitioner in the case under Domestic Violence, Act filed the application before the Additional Chief Metropolitan Magistrate, Ahmedabad. She moved an application requesting to decide about the voice in the conversation recorded in the CD which has been produced along with the affidavit to be sent to the FSL (Forensic Science Laboratory), State of Gujarat and further requested to take voice sample of both the parties for the examination through the forensic expert.
The appellate court rejected the appeal and the order passed by the Additional Chief Judicial Magistrate.
Contentions of Petitioner
The counsel for the Petitioner raised a contention that in proceeding under the Domestic Violence Act (herein after DV Act), the cruelty inflicted by the wife within the matrimonial home must be proven during the trail. He added that since all family members support the husband there would be no witness to corroborate the wife’s claims of cruelty.
The counsel further noted that in today’s technological age, electronic evidence of such cruelty should be admitted and exhibited in court. He also pointed out that requiring a certificate under section 65B of the Indian Evidence Act would place the wife in a precarious position, as she would be continuously monitored by the husband and his family. He requested that the CD be sent for examination to the Forensic Science Laboratory. It is also submitted by the counsel that it is the prime duty of the court to find out the truth and such voice recording would prove the case of the petitioner.
The counsel referred to the provisions of Section 28(2) of the Act and noted that the act gives absolute power to the magistrate for laying down its own procedure for examination of an application under section 12 or under sub section 2 of section 23 of the Act.
Contentions of Respondent
The counsel for the respondent submits that the order of the courts is legal and valid. He is referring to the provisions of section 31 of the DV Act. He further submits that the proceeding under the DV Act till the provision of section 30 are civil in nature. The counsel for the respondent submitted that the expression “accused” finds place only in sub-section (2) of section 31 of the Act and thereafter on finding the breach of the protection order the respondent would be proceeded as accused not before that.
Observation of Court
The court observes that the question before the court is the admissibility of the CD mark 38/1 produced along with the prayer made by the petitioner as a wife to take the voice sample of both parties for the examination of the FSL.
Referring to the judgement of Sri Rama Reddy etc. V. Shri V. V. Giri, 1970 Latest Caselaw 109 SC and Yusufali Esmail Nagree v. The State of Maharashtra (1967), the court observed that tape-recorded conversations are admissible provided the “conversation is relevant to the matters in issue”, the voice is identified and the accuracy of the tape-recorded conversation is “proven by eliminating the possibility of erasure”.
Consideration of the submissions made and the fact of the case the court held that the tape-recorded conversation was admissible in evidence in spite of violation of the Indian Telegraph Act. It was also noted that the police officers could not be said to intercept and message or damage or tamper or remove or touch any of the machinery within the meaning of section 25 of the Indian Telegraph Act. The reason noted is that the police officer instead of hearing the oral conversation between two persons recorded the conversation with device of tape record.
The Court states that “the identification of the voice would not be a question as recorded in the CD when the petitioner as a wife declares it to be the voice of the husband and other family members with whom she had been living alone from the date of her marriage. The accuracy of CD has been proved by placing on record the hash value”
The Court further said “the learned magistrate dealing with the trial under the DV act has to be keep in mind that the domestic violence complaint by the women is in a household where she is surrounded by the family members of the husband. She would not have any friend in the matrimonial family. The Law would only be her friend supporting her in the family. Latest development of technology would assist her and help he to bring her case of domestic violence suffered by her in the shared household. Such evidence on record should be accepted by the learned Magistrate without asking for the extraordinary proof of such evidence. In family matter the courts have all the authority to take into the trial all the reports, statements, documents, information on matters which would assist the court in effective decision of the dispute whether such documents are relevant or admissible under the Indian Evidence Act”.
"In the family matters, all such documents would become admissible irrespective that those documents become relevant or not or could not be proved in accordance to the Indian Evidence Act...The CD itself becomes admissible evidence in view of the decision in the case of R.M. Malkani (supra) and Ziyauddin Burhannuddin Bukhari, more so being a matrimonial matter, the parties need not prove the documents or the statement or any other report in accordance to the Indian Evidence Act, without even falling for the relevancy or the admissibility of all those documents, which become part of the trial, it gets admitted as evidence," Justice Gopi observed.
Decision of Court
The court decided to allow the application and further said that in the present matter when the wife had already produced the CD and transcript of the CD on record identifying the voice of the husband and other family members then she need not to prove more than that on record.
Advocate for Petitioner: Adv. Hetu M Sudarshan, Narendra K Amin
Advocate for Respondent: Adv. Hardik Mehta (APP), M M Shaikh, Pratik B Barot
Coram: Justice Ms. Gita Gopi
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