Case Note & Summary
The case involved a criminal writ petition before the Bombay High Court, Aurangabad Bench, arising from proceedings under the Protection of Women from Domestic Violence Act, 2005, between a husband (petitioner no.1) and his wife (respondent no.1). The parties were married in 2009 and a son was born; matrimonial disputes led to their separation. The wife filed Criminal M.A. No. 75 of 2013 under Sections 12, 18, 19, 20, and 22 of the 2005 Act against the husband and his family members. In his defence, the husband alleged that the wife had an extra-marital relationship with one Sanjay Dalvi and claimed to have recorded her telephonic conversation on a memory card, later converted to a compact disc. The husband produced the memory card and compact disc, a digital forensic report (Exhibit-96), a certificate under Section 65B of the Evidence Act (Exhibit-106), and a transcript of the conversation (Exhibit-109). The transcript was verified by court staff. An earlier application (Exhibit-107) seeking verification of the compact disc contents was allowed in 2018, and a writ petition challenging that order was dismissed. Subsequently, the husband filed Exhibit-114 in 2024, seeking a direction to the wife to provide her voice sample for forensic verification, contending that the wife had denied her voice in the recording. The Judicial Magistrate First Class, Parner, rejected the application on 14 February 2024, prompting the present writ petition. The petitioners argued that the wife was bound to give her voice sample; that Articles 20(3) and 21 of the Constitution were not impediments in quasi-civil domestic violence proceedings; that the court had ample power to compel voice sample; and that the electronic evidence was duly proved. The respondents argued that the application was belated and intended to delay proceedings; that the compact disc and memory card were not proved according to law; that the primary electronic source was not before the court; and that the plea of extra-marital relationship had already been rejected in a Hindu Marriage Petition. The High Court held that domestic violence proceedings are quasi-civil and quasi-criminal, and that Article 20(3) does not bar a direction for voice sample because the petitioner is not an accused. It observed that the Magistrate has power under Section 28(2) of the 2005 Act to follow procedure for disposal and can direct voice sample. The court further held that the electronic evidence, supported by a forensic report and Section 65B certificate, has prima facie probative value and cannot be discarded at a preliminary stage; its probative value is for the trial court to determine at conclusion. The court overruled the objection that the original cell phone or computer was not produced. It noted that the findings of the Hindu Marriage Petition court regarding extra-marital relationship were not binding because the electronic evidence was not before that court. Delay in filing the application was not a ground for rejection since the stage of evidence had not concluded. Consequently, the High Court set aside the impugned order, restored Exhibit-114, and directed the Magistrate to consider the application afresh and pass appropriate orders after giving the respondent an opportunity of hearing.
Headnote
A) Constitutional Law – Right against Self-Incrimination – Article 20(3) Constitution of India – Not Applicable to Quasi-Civil Domestic Violence Proceedings – In proceedings under the Protection of Women from Domestic Violence Act, 2005, which are quasi-civil and quasi-criminal in nature, the petitioner is not an accused; hence compelling voice sample does not violate the fundamental right against self-incrimination. The Magistrate has power under Section 28(2) of the Act to follow procedure for disposal of application and can direct voice sample. Held that the respondent can be compelled to give her voice sample for forensic verification (Paras 10-11, 20). B) Evidence – Admissibility of Electronic Records – Section 65B Indian Evidence Act, 1872 – Prima Facie Probative Value – Where electronic records (memory card and compact disc) are supported by a digital forensic report, a certificate under Section 65B, and a verified transcript, they have prima facie probative value and cannot be discarded at a preliminary stage. The genuineness and probative value are to be assessed by the trial court at the conclusion of proceedings. Held that the objection of inadmissibility was overruled (Paras 12-14). C) Civil Procedure – Delay in Filing Interlocutory Application – Application for Voice Sample Not Rejected on Delay – In domestic violence proceedings, an application for voice sample filed after commencement of arguments can be allowed if the stage of recording evidence is not yet concluded. Mere delay is not a ground for rejection (Para 16). D) Evidence – Denial of Voice – Necessity of Voice Sample – Where the respondent denies her voice in a recorded conversation, it is not necessary for her to seek voice sample testing; however, that alone does not preclude the court from directing her to provide her voice sample for forensic comparison, especially when the petitioner seeks to prove extra marital relations (Para 17). E) Civil Procedure – Res Judicata/Issue Estoppel – Findings of HMP Court Not Binding – The findings of a competent court in a Hindu Marriage Petition dismissing the plea of extra marital relationship are not binding on the trial magistrate in domestic violence proceedings when the electronic evidence now produced was not before that court. The trial court is free to independently assess the evidence on record (Para 15).
Issue of Consideration
Whether the Respondent No.1 can be compelled to give her voice sample for soliciting report of verification from the forensic laboratory in proceedings under the Protection of Women from Domestic Violence Act, 2005?
Final Decision
The writ petition is allowed. The impugned order dated 14.02.2024 passed by JMFC, Parner below Exhibit-114 is set aside. Application Exhibit-114 is restored. The trial Magistrate is directed to pass an appropriate order on the application after granting an opportunity of hearing to the respondent. Rule is made absolute.
Law Points
- Legal points not extracted
- voice sample can be compelled in quasi-civil domestic violence proceedings
- Article 20(3) no bar
- electronic evidence with Section 65B certificate has prima facie probative value
- delay not a ground for rejection if evidence not closed
- findings of HMP court not binding when new evidence emerges
- non-production of original device not fatal to admissibility
