SMT ANJALI SHARMA Versus RAMAN UPADHYAY (Madhya Pradesh High Court) (Gwalior Bench) MISC. PETITION No. 3395 of 2023

(i) In order to achieve its object to simplify the rules of evidence and procedure, Section 14 of the Family Courts Act provides for an exception to the general rule of evidence regarding admissibility of any report, statements, documents, information or matter, which it considers necessary to assist it and to deal with it effectively. Apparently, such a provision is made keeping in view the nature of cases which are dealt with by the Family Courts. Needless to mention here that Section 14 of Family Courts Act is a special legislation and by virtue of this provision, the strict principles of admissibility of evidence as provided under the Evidence Act have been relaxed.

(ii) A cumulative reading of Section 14 & 20 of the Family Courts Act, takes within its ambit the restricted applications of the provisions of the Evidence Act qua the documentary evidence which includes electronic evidence, whether or not the same is otherwise admissible. The only guiding factor is that the Family Court should be of the opinion that such evidence would assist the Court to deal with the matrimonial dispute effectively. It is the absolute power and authority of the Family Court either to accept or discard particular evidence in finally adjudicating the matrimonial dispute. However, to say that a party would be precluded from placing such documents on record and/or such documents can be refused to be exhibited unless they are proved as per Evidence Act, runs contrary to the object of Section 14 of the Family Courts Act.

(iii) Thus, on one hand, the explanation to Section 5 restrains a person from giving evidence of a fact which he is disentitled to prove under any law, on the other hand Section 122 of Evidence Act permits disclosure of any communication made to a person during marriage by any person to whom he is married in a suit between married persons.

(iv) Before referring to various judicial pronouncements dealing with the scope of Section 14 of Family Courts Act and Section 122 of Evidence Act, it is profitable to deal with the argument of learned counsel for petitioner/ wife that the evidence produced by respondent is not obtained by legal means and the method adopted by him for obtaining such evidence has violated wife’s right of privacy as enshrined under Article 21 of Constitution of India. To deal with this argument, it is profitable to refer to certain authorities of Apex Court dealing with right to privacy, considered to be a fundamental right under Article 21 of Constitution of India.

(v) More than five decades ago, the Apex Court in the case of R.M. Malkani vs. State of Maharashtra reported in (1973)1 SCC 471 was dealing with admissibility of a tape recorded conversation, which was obtained by illegal means, in a criminal matter involving offences punishable under Section of 161 & 385 of Indian Penal Code. The Apex Court thus allowed material obtained by impermissible means to be admitted in evidence. Pertinently, it was a case where strict rules of evidence were applicable and there was no provision available like Section 14 of Family Courts Act. This judgment was later on followed by Apex Court in the case of State (NCT of Delhi) vs. Navjot Sandhu reported in (2005)11 SCC 600.

(vi) The next judgment of Apex Court in line is Sharda vs. Dharmpal reported in (2003)4 SCC 493, wherein the Apex Court was dealing with a case involving an issue as to whether a party to a divorce proceeding can be compelled to undergo medical examination in order to ascertain his/her mental condition. The Apex Court after taking into account the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Mental Health Act, 1987, Hindu Marriage Act, 1955, Evidence Act, 1872, Article 21 of Constitution of India,

(vii) The right to privacy has been recognized as a fundamental right by virtue of celebrated judgment of 9-Judge Constitution Bench of the Apex Court in K.S. Puttaswamy vs. Union of India reported in (2017)10 SCC 1. Though, the Apex Court has not dealt with the law and principles of evidence in the context of the right to privacy, the observations of the Apex Court in that case that are relevant for purposes of the present discussion.

(viii) By reading the dictum of Apex Court in the case of Sharda & Puttaswami (supra), it is evident that right to privacy is recognized as a fundamental right under Article 21 of Constitution, but the same is not an absolute right. In case of necessity, a law can be framed permitting invasion to life and personal liberty. Section 14 of Family Courts Act and Section 122 of Indian Evidence Act are some such statutory provisions which permits invasion to right to privacy. It is worth mentioning here that vires of either of the aforesaid provisions are not under challenge and, therefore, the same have to be deemed as valid, fair and reasonable

(ix) Reading the law laid down by Apex Court in the case of Sharda, Puttaswamy & Sahara India (supra), it comes out loud and clear that even though right to privacy has been recognized as a fundamental right, the same is not absolute and is subject to exceptions and limitations. While a litigating party certainly has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case. It is a settled 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 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. Saying otherwise, would negate the specific statutory provision contained in Section 14 of Family Courts Act, which says that evidence would be admissible, whether or not the same is otherwise admissible under Evidence Act.

(x) If it were to be held that evidence sought to be adduced before a Family Court should be excluded based on an objection of breach of privacy right then the provisions of Section 14 would be rendered nugatory and dead-letter. It is to be borne in mind that Family Courts have been established to deal with matters that 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 marshaled would relate to the private affairs of the litigating parties. If Section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then not only of Section 14 but the very object of constitution of Family Courts shall be frustrated. Therefore, the test of admissibility would only be the relevance. Accordingly, fundamental considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. The purpose of legislating Section 14 would be frustrated if it is to give way to right of privacy.