Bombay HC Orders Woman To Give Voice Sample To Verify Husband's Claim About Extra-Marital Affair, Says Magistrate Has Power Under DV Act

If there is adequate material on record, a person can be compelled to give voice samples, even in Domestic Violence cases, the Aurangabad bench of the Bombay High Court recently held while allowing a husband's appeal seeking a direction to his wife to provide her voice sample so as to prove her 'extra-marital' affair. 

Single-judge Justice Shailesh Brahme order a woman to provide her voice specimens within a period of three weeks so that the same could be verified. 

"If there is adequate material on record having potential to prove the relevant facts, a person can be compelled to give voice sample. Such power is conceded with the Magistrate. Due to advent of technology, electronic evidence is being introduced. The electronic evidence is replacing conventional evidence. There is more need to invest such powers to the Magistrate who is a fact finding authority. Thus, I find force in the submissions of counsel for the petitioners (husband and his family). The Respondent (wife) is bound to give her voice sample to be referred to the forensic laboratory for verification," the judge held in the order passed on May 9.

The judge added that there is no straight-jacket formula as such but depending on the facts of he case, a Magistrate in matters of domestic violence has power to adopt the procedure as per Section 28(2) of the Protection of Women from Domestic Violence (PWDV) Act, which provides for disposing an application by passing an ex-parte order. 

The judge was hearing an appeal filed by a husband and his family members, all named in a domestic violence case, challenging the February 14, 2024 order passed by a Magistrate in Parner by which their plea to direct the estranged wife to give her voice sample for forensic verification. 

The husband contended that the wife was involved in an extra-marital affair and her conversation with her 'paramour' was recorded in a mobile phone, data of which was produced before the Magistrate in a memory card and a compact disc (CD). The husband even got his 'evidence' certified as mandated under section 65(B) of Evidence Act.

However, the wife contested that the memory card and also the CD are 'inadmissible' as evidence and that the plea for recording her voice specimen was taken at a 'belated' stage by the husband.

Having considered the contentions, Justice Brahme observed, "The probative value of electronic material can be gone into during the course of trial. At this stage, it is inappropriate to discard the material on the ground that original was not placed on record or source and the genuineness of the electronic material is doubtful. This Court can not be oblivious of the fact that transcript at Exhibit-109 runs into 35 pages disclose prolonged conversation on different occasions."

Further, the judge rejecting the argument of the wife that a competent court (Family Court) had already dismissed the Hindu Marriage petition of the husband and thus, it was now not open for him to allege extra marital affair and seek her voice sample. The judge noted that the evidence now produced by the husband through the CD and the memory card was not produced before the Family Court and thus the Magistrate considering the plea under the PWDV Act can examine the said issue. 

"The trial magistrate is not precluded from examining the plea of extra marital relationship independently on the basis of the evidence on record. The wife was cross-examined in the present matter and she has already denied the allegation of extra marital relations. It was possible for the husband to file application soliciting voice sample on earlier occasion. However the stage of recording of evidence is not over. Thus, his application can not be rejected on the ground of delay," the judge opined. 

With these observations, the bench allowed the husband and his family's plea.

Appearance:

Advocate Nikhil Ghanwat appeared for the Husband. 

Advocate Mukul Kulkarni represented the Wife.

Case Title: AAS vs SAS (Criminal Writ Petition 1782 of 2024)

Citation: 2025 LiveLaw (Bom) 189

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