ADMISSIBILITY OF EVIDENCES IN MARITAL DISPUTES

The provision of section 15 and 16 of the Act lays down the procedure for recording evidence.
The provisions lay down that the evidence shall not be lengthy and shall contain the
memorandum of substance alone. A careful perusal of the above provision would make us to
understand that there is no way made out for cross examination of a witness. The evidence shall
have to be in formal character.

In suits or proceedings before a Family Court, it shall not be necessary to record the evidence
of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record
or cause to be recorded, a memorandum of the substance of what the witness deposes, and such
memorandum shall be signed by the witness and the Judge and shall form part of the record.

The evidence of any person where such evidence is of a formal character, may be given by
affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding
before a Family Court.

In the case of Santhini Vs Vijaya Venkatesh, CDJ 2017 SC 1137, has in 2:1 majority held that
the absence of a party shall not hamper the proceedings and that the evidence could be recorded
through video conferencing. However, the condition precedent is that the parties should agree
for recording the evidence through video conferencing and shall file a joint memorandum or
application to the Court.

In Vinoth Kumar Vs State of Punjab CDJ 2015 SC 115, the Honourable Apex Court has laid
down the dictum for Sessions Cases, where the witnesses have to be cross examined at a stretch
on the same day itself. The Trial Court Judges who are handling the Sessions cases are given
with strict guidelines to be followed while examining the witnesses and that the cross
examination of the witness shall be completed on the same day. At the most the case could be
adjourned to the next day.

The Electronic evidences have been explained in Section 2(t) IT Act 2000. As per the Act,
electronic records include data, sound, image generated or recorded and sent or received in
electronic form. Indian Evidence Act permits the admissibility of electronic records which is
explained in the Section Section 65A Indian Evidence Act 1872.

In the case of Ram Singh & Ors vs Col. Ram Singh it was held that as audio tapes could be
altered, erased and re-recorded, hence, while accepting them as Evidence, there are various
factors to be considered. These factors involve establishing the voice of the speaker, its
accuracy, relevancy, exclusion of the possibility of tempering or manipulation, appropriate
custody, and clarity of the audio in question. If a tape recording is good enough to pass all these
tests then, there remains no grey area pertaining to its admissibility.

As much as video recordings are concerned, they hold the same evidentiary value as that of an
audio recording which was stated in the case of Alagaapuram R. Mohanraj & Others Versus
Tamil Nadu Legislative Assembly Rep. by its Secretary & Another. When a video recording is
to be submitted in a court of law, it can be submitted as Primary Evidence if the Memory-Chip/
CD/DVD/Hard-Drive along with the video camera through which the file was generated, are
tendered in Evidence. It was stated in the case of K. Ramajayam alias Appu v. Inspector of
Police. In cases where Primary Evidence is not available or not practically possible to be
submitted in court, a copy of such video recording created through a computer program is
admissible as Secondary Evidence subject to conditions mentioned under section 65(B).

A local court has ruled that private conversation, recorded in alleged violation of privacy of an
individual, is an admissible document while deciding matrimonial disputes. The court said it
was “within its right to receive any report, statement, document, information which in its
opinion will assist it in effectually dealing with a dispute between the parties whether such
evidence is relevant or admissible or not”. The man had submitted an audio-video recording of
his wife talking to her friend, which he had recorded by bugging the bedroom, as evidence to
secure divorce.

This was opposed by the wife’s counsel contending that the communication made between the
wife and her friend was made in private and cannot be permitted to be brought on record. The
court, however, said that the act of husband planting an audio-video recorder without the
knowledge information of his wife certainly amounts to invasion of wife’s right to privacy. On
the question of admissibility of the evidence collected by violating one’s right to privacy, the
court said “the evidence shall be taken on record if the court is of the opinion that such evidence
will assist it in dealing with the dispute effectively”.