The Madhya Pradesh High Court has allowed a Husband to present WhatsApp Chats of Wife obtained via snooping app as evidence before the Family Court to prove adultery.

The Court was considering a Petition challenging the order passed by the Family Court whereby it permitted the Respondent- Husband to mark the exhibits on the WhatsApp chats produced by him in his evidence.

The single bench of Justice Ashish Shroti observed, "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."

The Petitioner was represented by Advocate Shubhendu Singh Chauhan while the Respondent was represented by Advocate Sankalp Sharma.

Facts of the Case

The Marriage between the parties took place in 2016 and out of the wedlock, a baby girl was born in 2017. The Husband filed a suit for dissolution of marriage under Section 13 of Hindu Marriage Act, 1955, on the ground of cruelty. He also pleaded adultery on the part of wife. In order to prove adultery, specific pleadings were made with regard to WhatsApp chat of the wife with a third person. The Husband pleaded that by way of a special application installed in the wife’s phone, the WhatsApp chatting of her phone are automatically forwarded to his phone, which shows that the wife is having extramarital affair with a third person. When the suit was at the stage of husband’s evidence, he sought to exhibit the WhatsApp chats, to which the wife raised an objection. The Family Court rejected the same. Aggrieved, the Wife filed the present petition.

Counsel for the Wife submitted that the act of Husband in installing an Application in wife’s mobile, without her consent, was illegal and infringed her rights to privacy. It was his submission that since the evidence has been collected by illegal means, the husband cannot be allowed to rely upon such evidence and such evidence is inadmissible in evidence. He further submitted that the evidence collected by husband is in violation of Section 43, 66 & 72 of the Information Technology Act.

On the other hand, Counsel for the Husband submitted that the WhatsApp chats produced by the husband are relevant for establishing the allegation of adultery on the part of wife. Placing reliance 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.

Reasoning By Court

The Court at the outset noted that 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.....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," the Court observed.

It referred to the Supreme Court's decision in R.M. Malkani vs. State of Maharashtra wherein the Court 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," the Court observed.

Further citing Sharda, Puttaswamy & Sahara India (supra), the Court stressed that though right to privacy has been recognized as a fundamental right, the same is not absolute and is subject to exceptions and limitations.

It thus held that the only test before the Family Court for admissibility of an evidence is its relevance with respect to the case in hand in order to achieve the objective of Section 14 of the Family Courts Act.

"....this court is of the opinion that 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 Court observed.

The Petition was accordingly dismissed.

Cause Title: Anjali Sharma vs. Aman Upadhyaya

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Madhya Pradesh High CourtJustice Ashish Shroti

Sheetal Joon