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Article Published in the Express Magazine Dated
February 18, 2001
General Attorney : Rajiv K. Luthra
I got married three years ago and a year after
our wedding, our son was born. Recently I
discovered that my husband was married to another
woman prior to my marriage with him. His first
wife is still alive and they are not even formally
divorced. Under these circumstances, I am given to
understand that our marriage is not valid. I am
very worried about the status of our child. Is he
going to be labelled an illegitimate child?
Sangeeta Kapoor, Aurangabad
It is unfortunate that your husband concealed the
truth from you. Your marriage is in contravention
of the legal requirements of a valid Hindu
marriage as provided under section 5 of the Hindu
Marriage Act as your husband had a spouse living
at the time of his marriage with you. Although, it
is void, you have the option of having it declared
so by the court under section 11 of the Act for
purposes of declaring your legal status. Your
husband may be liable for punishment for bigamy as
provided under section 17 of the Act.
As regards the legal status of your son, section
16 of the Act declares that any child born from a
marriage that is null and void under section 11,
and who would have otherwise been legitimate had
the marriage been valid, shall be considered
legitimate irrespective of whether a decree of
nullity is granted in respect of such a marriage
under the Act. Your child has, therefore, the same
rights in the property of his parents as any child
born in a valid marriage. Such children are
entitled to a share in the property of their
parents only and not from ancestral property.
In the event of a dispute in this regard, you can
file a suit for a declaration of legitimacy of
your son.
What is the authenticity of a tape-recorded
voice as proof of an offence, especially since we
all know that the same can be manipulated with?
Will the court accept it as evidence in deciding a
case?
Mrinal Das Gupta, New Delhi.
You are right that tape-recorded evidence can be
tampered with and manipulated greatly, and
therefore the court has to exercise even more
caution before receiving such evidence. It is for
these reasons that the Hon'ble Supreme Court has
also spelt out certain conditions that have to be
adhered to before admitting a tape-recorded
conversation as evidence. The Apex Court has held
that a tape-recorded conversation shall be
admissible, provided the conversation is relevant
to the matters in issue, there is identification
of voice and the accuracy of the tape-recorded
conversation is proved by eliminating the
possibility of erasing record on tape. Strict
proof is required to determine whether or not it
is the voice of the alleged speaker. The courts
recommend that the recorded tape must be sealed
and kept in safe or official custody. Tape
recording a conversation is a mechanical
contrivance to play the role of an eavesdropper.
Even if the conversation is recorded unknown to
the person speaking, the evidence will not be
inadmissible, as long as the recorded conversation
was voluntary and the tape has been obtained in a
lawful way. A contemporaneous tape recording of a
relevant conversation is a relevant fact and is
normally admissible in court. Such evidence is
useful not only to corroborate the evidence given
by the witness in court but also to contradict the
evidence given before the court. It also acts as
test to the veracity of the witness and to impeach
his impartiality.
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