The Punjab and Haryana High Court decision here is challenged at Apex Court.
Diary No.- 31421 – 2021
The Punjab and Haryana High Court decision here is challenged at Apex Court.
Diary No.- 31421 – 2021
A division bench of Kerala High Court held that, if parties to certain cases insist that their personal details be erased from the Court systems, the Registry will oblige and not publish the same on it’s website.
From Para 64,
Vysakh K.G. Vs Union of India and Anr on 22 Dec 2022
64. In summation, we hold as follows:
i. We declare that a claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system.
ii. We hold that right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin. It is for the Legislature to fix grounds for the invocation of such a right. However, the Court, having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation, may permit a party to invoke the above rights to de-index and to remove the personal information of the party from search engines. The Court, in appropriate cases, is also entitled to invoke principles related to the right to erasure to allow a party to erase and delete personal data that is available online.
iii. We declare and hold that in family and matrimonial cases, arising from the Family Court jurisdiction or otherwise and also in other cases where the law does not recognise the Open Court system, the Registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the Court if the parties to such litigation so insist.
iv. We hold that the Registry of the High Court is bound to publish privacy notices on its website in both English and Vernacular languages.
A Single judge of Karnataka High Court (Dharwad bench) held as thus…
(If it feels like biased/pre-judged, I too felt the same)
20. Having heard the learned counsel for the parties, the following issue arises for consideration in this writ petition. Whether, it is permissible for a Family Court to summon the medical records of a spouse on the request of the other spouse, especially when it pertained to records relating to any procedures relating to the reproductive choices of the spouse?
Illogical Reasoning of the Court:
22. Regulation 7.14 of the Regulation, 2002, upon which, reliance was placed is a reflection of this declaration. The said regulation reads as follows : 7.14. The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his/her profession except
i) in a court of law under orders of the Presiding Judge;
ii) in circumstances where there is a serious and identified risk to a specific person and / or community ; and
iii) notifiable diseases. In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately.
23. As could be seen in Regulation 7.14 of the Regulations, 2002, there is an absolute embargo on the medical practitioner from disclosing the secrets of a patient that comes within the knowledge of the medical practitioner during the discharge of his professional duties.
24. To this embargo, however, there are three exceptions. The first exception, with which we are concerned, is when a presiding Judge passes an order calling upon the medical practitioner to divulge a secret that he is aware of regarding his patient. Thus, unless there is a specific order of a Judge presiding over a Court of law, no medical practitioner can disclose the secrets that he has become privy to during the discharge of his professional duties.
25. Merely because a Court of law possesses that power to direct the medical practitioner to divulge a secret confided with a medical practitioner, that power would not and should not be exercised merely for the asking or routinely. The power to direct a medical practitioner to act in violation of his declaration should be exercised only for strong and compelling reasons and would be more or less be exercised only when an element of public interest was involved.
26. The Courts, therefore, cannot direct medical practitioners to disclose the secrets that they are privy to Divorce proceeding, by their very nature, is adversarial and more often than not a bitter and acrimonious battle, at times initiated to tarnish the reputation of the warring spouse. Thus, the power of the Court to direct the medical practitioners to divulge secrets that are confided to them should be exercised very sparingly and only for exceptional reasons.
27. In order to get over the bar imposed on the medical practitioners to disclose the secrets of the patients to which they are privy, the Courts should not be asked to exercise their power to secure medical records. If this is permitted, it would mean the Medical practitioner is required to divulge the secrets that the patient has disclosed to him contrary to his professional ethics only because an adversary in litigation wishes to use it to non-suit the other.
28. It is to be kept in mind that the medical records of an individual are very private and are not for public consumption. If the medical record of a person is private to him, a direction to his medical practitioner to produce the medical records or divulge any secret that he is privy to it would essentially amount to infringing the fundamental right of privacy guaranteed to an individual, which emanates from the Right to Life granted under Article 21 of Constitution of India.
Gayatri alias Gadigevva Vs Vijay Hadimani on 03 Dec 2021
40. The Doctor, even if summoned, cannot by the production of medical records, assist the Court in concluding as to whether the wife had voluntary sexual intercourse with a person other than the husband. If the husband can prove that he had no access to his and if he can establish that his wife had or was having any illicit sexual relationship with another person, the same will have to be established by appropriate evidence as provided under the Evidence Act.
41. In any event, the illicit relationship of a spouse cannot be proved by securing his or her private medical records. In fact, if this approach is to be accepted, it would amount to the destruction of the entire concept of Doctor and patient confidentiality and also drag the Doctor into a marital dispute.
Other Sources :
Lower Family Court Divorce Case details:
Jan 3, 2022, 05:05 IST
Jan 3, 2022, 05:36 IST
A single judge bench of the Punjab and Haryana High Court held that,
Neha Vs Vibhor Garg on 12 Nov 2021
At the same time, it cannot be ignored that acceptance of the CD in question shall amount to a clear breach of fundamental right of the petitioner-wife i.e., her right to privacy, as has been upheld in various judicial pronouncements. The Hon’ble Supreme Court in People’s Union for Civil Liberties Vs. Union of India, (1997)1 SCC 301, has observed as under:-
“18. The right to privacy- by itself- has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
Thus, recording of telephonic conversation of the wife without her knowledge, is a clear cut infringement of her privacy.
This decision is appealed at Apex Court here.
In this case, Single Judge discussed the admissibility of evidence in cases filed in Family Courts u/s 14 and also dispelled the false notion that if a spouse obtains an evidence illegally (by installing a CCTV in this case), such act would not be violative of the other spouse’s right to privacy. And also nothing in Constitution of India prohibits such evidence.
From Para 37,
Deepti Kapur Vs Kunal Julka on 30 June 2020
37. While consistency in law is of utmost importance and law must get its full play regardless of the fact situation, this court must record the unease it feels with regard to a certain aspect that has arisen in this matter. Marriage is a relationship to which sanctity is still attached in our society. Merely because rules of evidence favour a liberal approach for admitting evidence in court in aid of dispensation of justice, this should not be taken as approval for everyone to adopt any illegal means to collect evidence, especially in relationships of confidence such as marriage. If the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people’s personal and family lives and thereby in the society at large. For instance, if a spouse has the carte blanche to install a recording device in a bedroom or other private space or to adopt any means whatsoever to collect evidence against the partner, even if in circumstances of matrimonial discord, it would be difficult to foresee the length to which a spouse may go in doing so ; and such possibility would itself spell the end of the marital relationship. It is not uncommon for spouses to continue living together, even in matrimonial strife, for years on-end. So, while law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.
Other Sources :
[S. 14 of Family Courts Act] Del HC | In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial
Deepti Kapur Vs Kunal Julka on 10 May 2022
Note: The nut case went to Supreme Court and the SC kicked out the SLP.
In this Order, AP HC held that, u/s 22 of Hindu Marriage Act, parties are prohibited from disclosing any information regarding the proceedings between them under HM Act and there is a penalty levied in case of this violation. This section is the protection given to parties for right of privacy during such proceedings.Nooty Vasishta Venkateshwarlu Vs Nooty Sindhu Sharma on 01 June 2020
This is the case in which Supreme Court held that Right to Privacy is a fundamental right as a part of Article 21.Justice K.S.Puttaswamy(Retd) & Anr Vs Union Of India & Ors on 11 August, 2015
List of other case laws around Article 21 are here.
M.P. Sharma And Ors. Vs Satish Chandra, District Magistrate, Delhi on 15 March, 1954
Citation: AIR 1954 SC 300, 1978 (2) ELT 287 SC, (1954) IMLJ 680 SC, 1954 1 SCR 1077
Indiankanoon link: https://indiankanoon.org/doc/70398131/
The index page is here.
In this judgment, Hon’ble Apex Court held that “When there are two interpretations, one wide and unconstitutional, the other narrower but within constitutional bounds, this Court will read down the overflowing expressions to make them valid. So read, the two regulations are more restricted than counsel for the petitioner sought to impress upon us. Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead it life of criminal in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere Convictions in criminal cases where nothing gravely imperilling saftey of society cannot be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer. In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise the- se old police regulations verging perilously near unconstitutionality.”Govind Vs State Of Madhya Pradesh & Anr on 18 March, 1975
Citation: 1975 AIR 1378, 1975 SCR (3) 946
Indiankanoon link: https://indiankanoon.org/doc/436241/
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