MP High Court Allows Husband To Produce Wife's WhatsApp Chats Obtained Without Her Consent To Prove Adultery Allegations

Justice Ashish Shroti in his order observed,

“Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under Article 21 of our Constitution, the right to privacy may have to yield to the right to fair trial…the Legislature, being fully aware of the principals of admissibility of evidence, has enacted Section 14 in order to expand that principle in so far as disputes relating to marriage and family affairs are concerned. The Family Court is thereby freed of restrictions of the strict law of evidence. The only test under Section 14 for a Family Court to receive the evidence, whether collected legitimately or otherwise, is based upon its subjective satisfaction that the evidence would assist it to deal effectually with the dispute.”

The development comes in a petition filed by the wife challenging a Family Court order permitting her husband to produce her WhatsApp chats with a third party in evidence, to prove allegations of adultery against her.

The husband pleaded that by way of a special application installed in the wife's phone, her WhatsApp chats are automatically forwarded to his phone, which showed that the wife was having extramarital affair with a third person.

The counsel for the wife submitted that the act of husband installing an application in her mobile, without her consent, was illegal and infringed her rights to privacy. He further contended that since the evidence was collected by illegal means, the husband can't be allowed to rely upon such evidence and such evidence is inadmissible.

The counsel for the husband submitted that the WhatsApp chats produced by the husband were relevant for establishing the allegation of adultery on the part of wife. Relying upon Section 14 of the Family Courts Act, the counsel submitted that Family Court is competent to take in evidence the material which is relevant for decision of the case even if such evidence is otherwise inadmissible under Indian Evidence Act.

After hearing the parties, the Court considered the validity of impugned order on the anvil of principles of admissibility of evidence keeping in view the provisions of Section 14 (Application of Indian Evidence Act, 1872) and 20 (Act to have overriding effect) of Family Courts Act, 1984.

The Court noted that Section 14 and 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 Court clarified that 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.”, the Court noted.

The Court further referred to Section 122 of Evidence Act which 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.

With regard to wife's contention that the method adopted by husband for obtaining such evidence violated her right of privacy, the Court referred to Sharda vs. Dharmpal (2003) and K.S. Puttaswamy vs. Union of India (2017) and said though right to privacy is recognized as a fundamental right under Article 21 of Constitution, the same is not absolute. The Court noted that in cases of necessity, 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.”, the Court said.

The Court further opined that 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.

“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.”, the Court observed.

The Court noted that the Family Courts deal with matters which involve issues that are private and personal. The Court however, said, “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.”

Thus, the Court held that:

1. the evidence is admissible so long as it is relevant, irrespective of the fact how it is collected.
2. merely admitting evidence on record is not proof of a fact-in-issue or a relevant fact.
3. the test of 'relevance' ensures that the right of a party to bring evidence to court, and thereby to a fair trial, is not defeated.
4. merely because a court allows evidence to be admitted, does not mean that the person who has illegally collected such evidence is absolved of liability that may arise, whether in civil or criminal law or both
5. such evidence must be received and treated with caution and circumspection and to rule-out the possibility of any kind of tampering

The impugned order passed by the family court was thus, upheld.

Case Title: Smt Anjali Sharma Versus Raman Upadhyay