ANURIMA Vs. SUNIL MEHTA

JUDGEMENT

(1.) These two petitions are being dealt together since they are cross petitions filed by the Petitioner / Wife, Anurima @ Abha Mehta and Sunil Mehta being aggrieved by order dated 10/07/2014 passed in HMA Case 495/10 & HMA Case 20/11 passed by the First Additional Chief Judge, Family Court, Indore.

(2.) Briefly stated the facts of the case are that the petitioner had filed an application under section 13 of the Hindu Marriage Act, 1955 seeking divorce from the respondent, which is pending consideration before the Trial Court, whereas, per contra, the husband has filed an application for restitution of conjugal rights against the wife. And in both the cases the husband had put forth an application dated 17/11/2011 under section 65(b) of the evidence Act to place on record the CD which contains conversation with one Mr. Vijay Agrawal and the wife. She filed reply (dated 13/02/2013) to the application dated 17/11/2011 and opposed the production of the CD on the ground that it amounts to infringement of her rights to privacy. The Trial Court vide order dated 12/08/2013 considered the application of the husband and dismissed the same holding that recording of conversation of the wife with any one; is illegal and in violation of right to privacy. This order dated 12/08/2013 was challenged by the respondent by filing writ petitions before this Hon'ble Court, which were registered as W.P. Nos. 10897/13 & 10899/13. Whereby the petitions were disposed off summarily, without notice to the wife, holding that since the application preferred by the husband was not in accordance with section 65(b) of the Evidence Act; if proper application is moved it would be considered by the Trial Court. The order passed by this Court is dated 19/09/2013, annexed as annexure P4 to this petition. Again the application was moved by the husband and was opposed by the wife, however, vide the impugned order, Trial Court has held the application of the husband to place the CD on record should be considered as evidence, hence the present petitions by the wife. It is vehemently urged by the Counsel for the respondent that despite directions from this Court in W.P. Nos. 10899/13 & 10897/13 that the applications filed by the husband are allowed.

(3.) Counsel for the petitioner also vehemently urged the fact that any conversation between the wife and the other person amounts to the infringement on the right of privacy of the wife and was in violation of Article 21 of the Constitution of India and that right to privacy is a part of life and personal liberty enshrining under Article 19 and 21 of the Constitution of India and was is almost similar to taping of telephones. Counsel relied on Rayala M. Bhuvaneswari vs. Nagaphanendra Rayala, 2008 2 DMC 327stating that tap recorded conversation was not permitted as evidence for divorce petition since it was not admissible evidence and besides Right to privacy was infringed. In the similar case the husband was tapping the conversation of wife and sought permission to produce the hard disc in Court and the Court had held that the tapes even if true cannot be admissible in evidence since thereafter to make the wife to undergo voice test and then ask expert to compare portions denied by her with her admitted voice could not be permitted. Similarly, reliance has been placed by the Counsel on People s Union for Civil Liberties vs. Union of India, 1997 AIR(SC) 568 whereby, the right to privacy is part of right to life and right to privacy would include telephone conversation in the privacy of home or office and telephone tapping would also violate Article 19(1)(a) and 19(2) i.e. freedom of speech and expression.