New Delhi: A secretly-recorded telephonic conversation with the partner may be used by a spouse in matrimonial disputes, including divorce proceedings, the Supreme Court pronounced on Monday.
The top court clarified that such communications are not barred under the law, and don’t amount to a breach of privacy.
In a significant ruling that deals with privacy and evidence within marriage, a bench of Justices BV Nagarathna and Satish Chandra Sharma set aside a 2021 judgment of the Punjab & Haryana High Court, which barred a husband from using a compact disc (CD) or a memory card containing conversations with his estranged wife, which was recorded without her knowledge.
The high court’s order was based on Section 122 of the Indian Evidence Act, which bars disclosure of marital communications by one spouse without the other’s consent. However, there is an exception in the same provision — when such communication is produced during legal proceedings between the spouses.
Section 122 of the Evidence Act has been replaced by Section 121 of Bharatiya Sakshya Adhiniyam, 2023.
The Supreme Court said that while the right to privacy exists between spouses, it is not absolute. The tw0-judge bench made the point that exception under Section 122 must be read in conjunction with the constitutional right to a fair trial, which is also protected under Article 21 of the Constitution.
“We have also referred to the 2017 KS Puttaswamy judgment,” the top court said, referring to the landmark ruling that affirmed privacy as a fundamental right. “However, such rights cannot be applied horizontally in all contexts. Section 122 does not touch upon the right to privacy as envisaged under Article 21 because it is based on the right to a fair trial.”
The bench noted that a conversation between spouses, secretly recorded by one partner, can be admitted as evidence, emphasising that allowing such evidence in matrimonial cases upholds procedural fairness, particularly where issues like mental cruelty or marital discord are being litigated.
The Supreme Court restored the earlier order, passed by the Bathinda family court in 2020, which allowed the husband to prove the contents of the CD in support of his plea for divorce, provided its authenticity was established.
The case in question is a divorce petition filed in 2017 by a man against his wife, with whom he had a daughter. The husband submitted a CD of telephonic conversations purportedly between him and his wife, which was recorded without her knowledge.
After the Punjab and Haryana High Court reversed the family court’s decision, calling the evidence inadmissible, the husband approached Supreme Court, which examined the interplay between privacy rights and evidentiary rules.
The top court appointed advocate Vrinda Grover as amicus curiae during the hearings. Grover argued that laws like Section 122, framed in a pre-digital era, must be reinterpreted in present times due to evolving technology and gender dynamics.
The Supreme Court ruling could have huge implications in matrimonial litigation in India, especially as technology plays an increasing role in evidence gathering.
