Voice Sample and Electronic Evidence in Domestic Violence Proceedings: Bombay High Court Affirms Magistrate’s Power
Introduction:
In this case the Bombay High Court (‘High Court’), Aurangabad Bench, addressed a crucial procedural and evidentiary issue under the Protection of Women from Domestic Violence Act, 2005 (‘PWDVA’). The primary question was whether a Judicial Magistrate could direct a respondent to provide a voice sample for the forensic verification of audio recordings submitted as evidence of an alleged extra-marital affair. The High Court overturned the Magistrate’s refusal and clarified that, in quasi-civil proceedings such as those under the PWDVA, courts have the authority to invoke procedural tools such as voice sample collection, provided sufficient material supports the request.
Brief Facts:
The dispute arose between estranged spouses involved in a long-standing domestic violence proceeding initiated by Respondent No.1 (wife) under s. 12, 18, 19, 20, and 22 of the PWDVA. The Petitioners (including the husband) contested the allegations and claimed that Respondent No.1 was engaged in an extra-marital relationship.
To substantiate this claim, they submitted electronic recordings allegedly containing telephonic conversations between Respondent No.1 and her purported paramour. These recordings were converted into a compact disc and memory card (marked as a. 1 and 2), supported by a Digital Forensic Report (Exh. 96), a s. 65B certificate (Exh. 106), and a transcript (Exh. 109). Expert testimony was also provided by a forensic analyst, Mr. Nilesh Ralebhat.
Although the Magistrate earlier permitted the verification of the transcript and electronic data, a subsequent application (Exh.114) requesting Respondent No.1’s voice sample for comparison was rejected. The rejection was primarily on grounds that the request was belated and that the original recording device was not submitted.
Aggrieved by this, the Petitioners approached the High Court, seeking reversal of the Magistrate’s order.
Held:
The High Court allowed the writ petition and quashed the impugned order of the Magistrate. It held that the PWDVA proceedings are quasi-civil and not criminal in nature, and as such, the bar under a. 20(3) of the Constitution which protects against self-incrimination does not apply. The High Court emphasized that Magistrates have procedural flexibility under s. 28(2) of the PWDVA to adopt necessary measures to ensure effective adjudication, including directing a party to provide a voice sample.
The High Court further acknowledged that the forensic evidence (Exhibits 96, 106, and 109), supported by expert testimony, established prima facie admissibility. While the original recording device was not on record, it was held that the absence of the source device did not render the evidence inadmissible per se, particularly when backed by a valid s. 65B certificate and a verified hash value indicating no tampering. It further clarified that the probative value of such evidence is to be assessed at the trial stage, and not prematurely dismissed.
Importantly, the High Court noted that the extra-marital affair allegation had previously been rejected in matrimonial proceedings under the Hindu Marriage petition. However, it also observed that the electronic evidence submitted in the current case was not part of the earlier proceedings, and therefore, the trial court was not barred from re-examining the issue afresh based on the present evidentiary record. The Magistrate’s finding that the application was filed with delay was also rejected, as the trial and evidence stages were still ongoing. Thus, the High Court held that the Petitioners were justified in seeking a voice sample for verification and directed Respondent No.1 to comply within three weeks.
Analysis:
This judgment underscores a progressive and pragmatic approach in the treatment of electronic evidence within domestic violence litigation. It marks an important affirmation of the judiciary’s willingness to modernize evidentiary rules in step with technological advancements, especially in sensitive family and domestic matters.
By upholding the Petitioners right to seek a voice sample, the Court balanced the procedural rights of both parties without compromising constitutional protections. It distinguished between criminal prosecution and quasi-civil domestic violence proceedings, clarifying that the protections under a. 20(3) are inapplicable where the respondent is not an accused in the strict legal sense. This distinction ensures that the remedial intent of the PWDVA is not undermined by overly rigid interpretations of criminal law safeguards.
Ultimately, this decision enhances the evidentiary framework available to courts under the PWDVA and reinforces procedural discipline. It ensures that parties whether aggrieved or accused are afforded a full opportunity to present and challenge material evidence, thereby strengthening both the fairness and effectiveness of domestic violence adjudication in India.
Authored by Ascend Legal Editorial Team. The opinions expressed are personal and do not constitute any legal advocacy.
