Privilege communication between husband and wife is admissible in Family Court proceedings

Rajasthan-High-Court

Rajasthan High Court: While deciding a writ petition the Court has stated that Section 65 B of Evidence Act is not applicable to the evidence in the form of Pin Hole camera with a hard disk memory on which a recording was done, as it was submitted as Primary evidence, since Section 65 B it deals only with Secondary evidence.  The present writ petition was filed by the wife challenging the admissibility of the electronic record (Pin hole Camera, memory and recordings) filed by the husband in a family court, along with the affidavit in evidence in support of the divorce petition. The Court and also held that the privilege in respect of the husband and the wife’s communication under Section 122 of Evidence Act would not attract in Family court proceedings.

The Court observed while rejecting the contention of the wife that, “Section 65B of the Act of 1872 only deals with the secondary evidence qua electronic records. It does not at all deal with the original electronic records, as in the instant case, where the pinhole camera, with a hard disk memory on which the recording was done has been submitted before the Family Court. The Supreme Court in the case of Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 has held that if an electronic record is produced as a primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions of Section 65B of the Act of 1872. That evidence would take the colour of primary evidence, subject no doubt to its credibility based on forensic examination and cross examination.”

The single judge Bench comprising of Alok Sharma, J. observed that “Section 14 of the Family Court Act, 1984 provides that a family court may receive any evidence, report, statement, documents, information or matter which in its opinion will facilitate the effective adjudication of the disputes before it, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. The aforesaid section therefore makes it pellucid that the issues of relevance and admissibility of evidence which regulate a regular trial do not burden proceedings before the family courts. It is the discretion of the family court to receive or not to receive the evidence, report, statement, documents, information etc. placed before it on the test whether it does or does not facilitate an effective adjudication of the disputes before it.”  The bench further observed “the privilege in respect of the husband and the wife’s communication under Section 122 of the Act of 1872 would also not attract, as Section 14 of the Family Court Act eclipses Section 122 of the Evidence Act in proceedings before the Family Court. Section 14 aforesaid is a special law, so to say, as against the general law, which Section 122 of the Act of 1872 encapsulates vis-a-vis privileged communications between husband and wife.” [Preeti Jain v. Kunal Jain 2016 SCC OnLine Raj 2838 Decided on 27.05. 2016]

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