Karnataka High Court
Kethana Lokesh vs Rahul R Bettakote on 19 June, 2024
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NC: 2024:KHC:21752
WP No. 11818 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 11818 OF 2024 (GM-FC)
BETWEEN:
KETHANA LOKESH
W/O RAHUL BETTAKOTE
D/O.LOKESH
AGED ABOUT 33 YEARS
RESIDING AT NO. 1, 1ST MAIN,
3RD CROSS, SHAMANNA GOWDA ROAD
KHB MAINROAD, CAUVERY NAGAR
R.T. NAGAR POST,
BENGALURU - 560 032
PRESENTLY RESIDING AT
NO. 510/9-1, 1ST MAIN
2ND CROSS,
SHAMMANNA GOWDA ROAD
K.H.B. MAIN ROAD, CAUVERY NAGAR
R.T.NAGAR POST
BANGALORE - 560 032
...PETITIONER
Digitally (BY SMT. NAGARATHNA S.K., ADVOCATE)
signed by
SUVARNA T
AND:
Location:
HIGH RAHUL R.BETTAKOTE
COURT OF
S/O. RAJANNA B.K.
KARNATAKA
AGED ABOUT 38 YEARS
RESIDING AT NO.14,
KUVEMPU MAIN ROAD
1ST CROSS, SRINIVASA GARDEN
NAGASHETTY HALLI,
BENGALURU-560 094
...RESPONDENT
(BY SRI.RAJATH S., ADVOCATE FOR
SRI.UMASHANKAR M., ADVOCATE)
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NC: 2024:KHC:21752
WP No. 11818 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT BY QUASHING THE
ORDER PASSED BY THE IV ADDL. PRIN. JUDGE, FAMILY COURT,
BENGALURU VIDE ANNEXURE-H DATED 02.04.2024 IN M.C.
6189/2017 ON I.A.NO.8 AND TO GRANT COSTS OF THIS PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order passed in I.A.No.VIII in M.C.No.6189/2017 dated 02.04.2024 by the IV Additional Principal Judge, Family Court, Bengaluru, the wife is before this Court.
2. The parties are referred to as husband and wife for the sake of convenience.
3. The husband had filed M.C.No.6189/2017 seeking divorce and the wife has filed her counter claim. In that, I.A.No.VIII is filed by the husband to file witness list to prove the case on merits, wherein in the said application, it is stated that the witnesses that is sought to examine are witness No.1 - the father of the husband and witness No.2 - the maternal uncle and witness No.3 - the uncle of father of the wife. It is the case that they were all assembled at Shanthisagar Hotel, -3- NC: 2024:KHC:21752 WP No. 11818 of 2024 R.T. Nagar, Bengaluru on 12.01.2017 and discussed regarding an amount of Rs.60,00,000/- received by the father of the wife from the husband's father towards marriage expenses and clearing the hand loan taken from private persons and he prays the Court to permit witness Nos.1 to 3 and along with that, a C.D. which shows what has transpired on that day between the parties to prove the case on merits.
4. Objections were filed by the wife stating that her father has not received any amount as alleged and in fact, the father-in-law had sent word that they wanted to have a meeting to reconcile the matter between the wife and husband and her father with a bonafide intention of settling his daughter's life went to meet the husband's father. There were no talks of the alleged transaction of an amount of Rs.60,00,000/- on that day. But the husband and his father wanted the wife's father to give him the amount for his business which he always demanded from the wife. As the talks did not materialize and failed, the wife's father returned back. The husband and his father took undue advantage of the meeting have created audio records to make a wrongful gain. -4-
NC: 2024:KHC:21752 WP No. 11818 of 2024 The alleged audio record which the husband is relying on is a concocted and created record by the husband to suit his malafide purpose and intent. The created audio which is done behind the back of the wife and her father is without their consent and knowledge. The husband and his father are trying to create evidence for an alleged transaction that has not taken place. Hence, the wife had prayed to dismiss the application.
5. The Trial Court had considered the objections raised on behalf of the wife and also considering the case of both the parties, the Trial Court had allowed the application, wherein the Trial Court had observed that the very objection of the wife is that there were no talks of alleged transaction of an amount of Rs.60,00,000/- as alleged by the husband and the audio recording which the husband is relying is concocted and created as to suit his case with a malafide intention. Further, the Trial Court had also observed that the laws relied on by the wife are with regard to violation of privacy under Article 21 of Constitution of India but here it is the matrimonial dispute the husband having filed the petition for dissolving his marriage on the ground of cruelty. What has transpired in the -5- NC: 2024:KHC:21752 WP No. 11818 of 2024 panchayath which had taken place prior to filing of the present petition is what the petitioner wants to make out in his evidence. So the petitioner cannot be curtailed from leading his further evidence by examining the witness. On the other hand, if any of the witness is author of the conversation which is said to be contained in the audio, it has to be marked through the author of the document and the wife having objected the production of the said C.D. The document will always be subject to proof. So if at all it is created and concocted, the wife is having every opportunity of subjecting it to prove or for obtaining an opinion of the expert with regard to its authenticity and accordingly, allowed the petition.
6. Learned counsel appearing for the petitioner/wife submits that the said C.D. is not admissible in evidence as it is violation of right to privacy under Article 21 of Constitution of India. He had relied on the judgment of the High Court of Chattisgarh, Bilaspur, in the case of Asha Latha Soni Vs. Durgesh Soni1 and submits that when the audio was recorded without the knowledge of the party, the Court had held that the 1 2023SCC Online CHH 3959 -6- NC: 2024:KHC:21752 WP No. 11818 of 2024 same is not admissible in evidence. Secondly, it is contended that the divorce petition is filed on the ground of cruelty and there are so many grounds taken by the husband and whether any money is demanded or anything had taken place, has nothing to do with the adjudication of the main dispute between the parties and as such, the Trial Court ought not to have allowed the said application and the parties have to prove their case on evidence that is relevant to the pleadings.
7. Learned counsel appearing for the respondent/husband had relied on the judgment of the High Court of Delhi in the case of Deepti Kapur Vs. Kunal Julka2, wherein similar issue had fell for consideration. The Delhi High Court had elaborately discussed several judgments of the Hon'ble Apex Court and had come to the conclusion that though privacy is recognized as a fundamental right, that alone would not make evidence collected in breach of that right, inadmissible. Much less would it negate the specific statutory dispensation contained in Section 14 of the Family Courts Act, which says that evidence 2 AIR 2020 DEL 156 -7- NC: 2024:KHC:21752 WP No. 11818 of 2024 would be admissible, whether or not the same is otherwise relevant or admissible under the Evidence Act. It is also observed that 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 the Court, to prove its case. It is a critical part of the hallowed concept of fair trial that a litigating party gets a fair chance to bring relevant evidence before the Court. It is also observed that it is important to appreciate that while the right to privacy is essentially a personal right, the right to a fair trial has wider ramifications and impacts public justice which is a larger cause. 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 at the very threshold. Basing on the said judgments, learned counsel submits that the said C.D. is admissible in evidence. Learned counsel further submits that there are disputes between the parties on monitory aspects and also it has been averred in this petition. It is submitted that all the other grounds that are raised by the wife can be raised before the court as the same is subject to proof and relevancy. He -8- NC: 2024:KHC:21752 WP No. 11818 of 2024 submits that the order of the Trial Court is a well considered one and no interference is called for.
8. Having heard the learned counsels on either side, perused the entire material on record. The husband wanted to examine three witnesses with regard to a conversation that had taken place between the father of the wife and the father of the husband and at that time, he had taken an audio recording. According to the wife, no such conversation had taken place. It is a fabricated one and it violates the right to privacy. These two grounds are considered by the Trial Court. If such a conversation had not taken place and they have placed C.D. on record, the wife is not remediless which is rightly observed by the Trial Court. Then coming to the violation of right to privacy, the argument of the learned counsel has no legs to stand in the light of the judgment of the High Court of Delhi in Deepti Kapur's referred supra as discussed in the above paragraphs. While considering the arguments of the learned counsel for the respondent, this Court is of the view that such an audio recording is admissible in evidence and other grounds that are raised with regard to other aspects, the Trial Court had already -9- NC: 2024:KHC:21752 WP No. 11818 of 2024 observed that the wife will have opportunity at later point of time. Considering all these aspects, this Court of the view that the order passed by the Trial Court is a well considered one and no interference is called for.
ORDER i. Accordingly, the writ petition is dismissed. All pending I.A.s, if any shall stand closed.
SD/-
JUDGE MEG List No.: 1 Sl No.: 5