The Madhya Pradesh High Court has held that in matrimonial disputes, family courts can admit evidence including WhatsApp chats even if they are collected by violating the privacy of the spouse. .Justice Ashish Shroti made the observation while allowing a husband to produce his wife's WhatsApp chats as evidence of her adultery. The Court warned that Section 14 of the Family Court Act would be rendered nugatory and dead letter if evidence is excluded on the ground of breach of privacy. Section 14 permits invasion into the right to privacy, the Court stressed. “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 marshalled would relate to the private affairs of the litigating parties,” the Court said. Section 14 of the Family Courts Act provides that the court may receive evidence, which it thinks will assist in dealing with the disputes effectively, even if it may not be admissible under the Indian Evidence Act. .The High Court observed that the fundamental considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. Further, the Bench held that no fundamental right under the Constitution is absolute, and if there is a conflict between the right to fair trial and right to privacy, the right to privacy may have to yield. “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 Bench said. It reasoned that the cause of public justice would suffer if the opportunity of a 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.” .The Bench rendered these findings while dealing with a plea filed by a woman challenging the family court order allowing her husband to present as evidence her WhatsApp chats to prove adultery in a divorce case.It was stated that the husband had accessed these chats by installing an app on her phone, which transmitted her conversations to his phone. The wife argued that these chats were inadmissible because the bug was installed on her phone without her consent, violating her right to privacy, and the husband cannot be allowed to rely on the illegally collected evidence. .The Court rejected the argument and upheld the family court order. .However, after noting the expansive powers under Section 14, the High Court also provided the following safeguards that are required to be adopted by family courts when dealing with this provision:.- Even though a given piece of evidence has been admitted on record, the Court must be extremely careful in relying upon such evidence while deciding lis. The authenticity and genuineness of such evidence must be strictly and meticulously examined. - If in its opinion, the nature of the evidence sought to be adduced is inappropriate, embarrassing or otherwise sensitive in nature for any of the parties, may be litigating or not, the Family Court may restrict the parties who are present in court at the time of considering such evidence. It may conduct in-camera proceedings so as not to cause embarrassment to any person or party;- All proceedings must be conducted strictly within the bounds of decency & propriety, and no opportunity should be given to any party to create a spectacle in the guise of producing evidence. - Any party aggrieved by the production of such evidence would be at liberty to initiate appropriate proceedings, whether in civil or criminal law, against party for procuring evidence illegally, although the initiation or pendency of such proceeding shall not make the evidence so produced inadmissible before the Family Court..Advocate Shubhendu Singh Chauhan appeared for the wife. The husband was represented by advocate Sankalp Sharma..[Read Judgment]
