Bombay High Court Holds That Respondent in Domestic Violence Proceedings Can Be Compelled to Provide Voice Sample for Forensic Verification — “Voice Sample Not Protected Under Article 20(3) in Quasi-Civil Proceedings; Magistrate Has Power Under Section 28(2) of PWDVA to Direct Voice Sample for Comparison”

Court’s Decision

The Bombay High Court at Aurangabad allowed the criminal writ petition challenging the order of the Judicial Magistrate, Parner, which had rejected the petitioners’ request to direct the respondent (wife) to provide her voice sample. The Court held that:

“Respondent is bound to give her voice sample to be referred to the forensic laboratory for verification.”

The Court directed the respondent to tender her voice sample within three weeks and clarified that the petitioners shall bear the expenses of the exercise.

Facts

• The petition arises from domestic violence proceedings initiated by the respondent-wife under Sections 12, 18, 19, 20, and 22 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA).
• The parties, who are husband and wife, have been living separately due to matrimonial disputes.
• In defense, the petitioners (husband and his relatives) alleged that the wife was involved in an extramarital affair and submitted a compact disc and memory card containing a recorded conversation between the wife and her alleged paramour.
• A forensic report (Exh. 96), a certificate under Section 65B of the Evidence Act (Exh. 106), and a transcript of the conversation (Exh. 109) were submitted as evidence.
• The petitioners initially succeeded in securing a direction for verification of the transcript but were denied the request for obtaining the respondent’s voice sample (Exh. 114), prompting the present writ petition.

Issues

1. Whether the Judicial Magistrate erred in rejecting the petitioners’ application for a direction to the respondent to provide her voice sample?
2. Can a party in a domestic violence proceeding be compelled to give a voice sample despite Article 20(3) of the Constitution?
3. Whether the electronic evidence, without the original device, is admissible and sufficient to warrant forensic comparison?

Petitioner’s Arguments

• The petitioners contended that the wife had denied the recorded voice was hers, and hence, her specimen voice sample was necessary for forensic verification.
• It was argued that proceedings under the PWDVA are quasi-civil and therefore, Article 20(3) (protection against self-incrimination) does not apply.
• The petitioners relied on the Supreme Court’s decision in Ritesh Sinha v. State of U.P. (AIR 2019 SC 3592), which held that a Magistrate could order a person to provide a voice sample even in the absence of express statutory provisions.
• They also cited Jil w/o Priyanka Choksi v. State of Gujarat, where the Gujarat High Court held that parties in a domestic violence matter can be directed to give voice samples, noting that the Court has wide procedural discretion under Section 28(2) of the PWDVA.
• The petitioners argued that the CD and memory card had been duly supported by a forensic report and should be considered admissible.

Respondent’s Arguments

• The respondent opposed the application on the ground that it was filed belatedly with the intent to delay proceedings.
• It was contended that the electronic records (CD and memory card) were not properly proved, and the original devices (phone or computer) were not produced.
• The respondent argued that the transcript was admitted only for cross-examination and does not amount to full admission of the electronic record’s authenticity.
• She emphasized that the issue of an extramarital affair was already adjudicated and rejected by the family court in HMP No. 250 of 2013.
• Lastly, it was submitted that there was no statutory provision under the PWDVA to compel a party to provide a voice sample.

Analysis of the Law

• The Court noted that the proceedings under the PWDVA are quasi-civil and quasi-criminal, and the parties are not to be treated as accused and informant in the criminal jurisprudence sense.
• Section 28(2) of the PWDVA allows the Magistrate to lay down procedures for disposal of applications under Section 12.
• The Court highlighted the Supreme Court’s holding in Ritesh Sinha, which recognized the power of Magistrates to order voice samples through judicial interpretation, even in the absence of statutory provision.
• The Court also relied on the Gujarat High Court’s ruling in Jil w/o Priyanka Choksi, which emphasized that modern technology and procedural flexibility under the PWDVA permit directions for forensic comparison of electronic evidence.

Precedent Analysis

• Ritesh Sinha v. State of U.P. (AIR 2019 SC 3592): Held that Magistrates can direct an accused to provide a voice sample despite absence of a statutory provision. Article 20(3) does not protect against providing physical evidence like voice samples.
• Jil w/o Priyanka Choksi v. State of Gujarat (2024 ALL MR (Cri) 128): In the context of PWDVA proceedings, held that voice samples can be directed even without traditional proof standards under the Evidence Act.
• M/s. Janchaitanya Housing Ltd. v. M/s. Divya Financiers (AIR 2005 SC 3353): Concerned handwriting samples in a civil suit; the Court found it inapplicable to the facts of the present case.

Court’s Reasoning

• The Court found that sufficient material—such as the forensic report, the 65B certificate, and transcript—was placed on record and had probative value.
• It rejected the respondent’s argument that the absence of the original device renders the electronic evidence inadmissible, stating that admissibility and probative value should be assessed at trial.
• The Court emphasized that in domestic violence proceedings, technological evidence like voice recordings can be pivotal in resolving factual disputes.
• It ruled that the Magistrate has the power to compel a party to provide a voice sample for ensuring a fair adjudication.

“In the proceedings under domestic violence act, the parties are not informant and accused in the sense of criminal jurisprudence… principles of Article 20(3) of the Constitution of India are not attracted.”

Conclusion

• The High Court set aside the order of the Judicial Magistrate refusing to direct the respondent to provide her voice sample.
• It directed that the respondent must submit her sample within three weeks, and that it should be sent to the forensic laboratory for verification.
• The costs of the exercise shall be borne by the petitioner.

Implications

• This judgment strengthens the admissibility and procedural acceptance of electronic evidence in domestic violence cases, even when the original recording device is unavailable.
• It clarifies that respondents in PWDVA proceedings can be compelled to provide voice samples, and Article 20(3) protections against self-incrimination do not apply to such quasi-civil proceedings.
• The decision underlines the importance of adapting procedural mechanisms in line with evolving technology and reaffirms the Magistrate’s discretionary powers under Section 28(2) of the PWDVA.
• This could set a persuasive precedent for similar cases involving disputes over electronic evidence in family and domestic matters.

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