technological advancement has made it easier to record and recreate moments of past and present for reference in future, then to say that such better forms of evidence and material would not be admissible on the ground of they being in violation of the right to privacy would amount to defeating the very object of the Evidence Act. – SC
Supreme court in a recent major decision held that a secretly recorded telephonic conversation between spouses is admissible as an evidence during matrimonial disputes comprising divorce proceedings. The Hon’ble Supreme Court has overturned the 2021’s Punjab and Haryana High Court’s ruling which called it a breach of privacy and refused to admit a husband’s secretly recorded phone calls with his wife in a pending divorce case.
Background:
A husband recorded his wife’s phone calls and submitted them in divorce proceedings in order to prove cruelty. The Family Court admitted it, citing Section 14 and Section 20 of the Family Courts Act, 1984, which permit family courts to admit any evidence that is helpful for resolving the dispute, however High Court refused it by calling it,
“a clear breach of her fundamental right to privacy.”
On the contrary, a bench of Justice B.V Nagarathna and Justice Satish Chandra Sharma held that such recordings are not barred under the Indian Evidence Act and do not amount to a violation of right to privacy when used in suits between married persons.
Validity of secretly obtained evidence:
The Hon’ble Supreme Court while checking the validity of secretly obtained evidence affirmed the reasoning of Yusufalli Esmail Nagree vs State of Maharashtra AIR 1968 SC 147, in which a three judges bench held that secretly recorded conversation are not inadmissible solely due to lack of consent, so long as they are relevant, authentic, and reliable.
Applicability of Section 122 of the Evidence Act in matrimonial disputes:
Hon’ble Supreme court explained that “Section 122 of the Evidence Act deals with two parts – compellability and permissibility. The facts of the present case concern only the applicability of the second part of Section 122, i.e., the one dealing with permissibility. The husband in this case would have ordinarily been barred from disclosing any form of communication that was disclosed by the wife to him by virtue of being a privileged communication under Section 122 but due to the exception provided in that Section, the bar on the disclosure of such communication is lifted since the communication sought to be disclosed in the present case is in a proceeding between the husband and the wife, i.e., the petition filed by the husband for divorce under Section 13 of the Hindu Marriage Act. Therefore, such a privileged communication is not barred from being disclosed and brought before the Court and the objection taken by the wife with respect to Section 122 of the Evidence Act is not acceptable.”
On the question raised by learned Amicus Curiae, about the fact that permitting such an evidence would jeopardise domestic harmony and matrimonial relationship inasmuch as it would encourage snooping on the spouse, thereby fracturing the very objective of Section 122 of the Evidence Act. The Hon’ble Court responded,
“If the marriage has reached a stage where spouses are actively snooping on each other, that is in itself a symptom of a broken relationship and denotes a lack of trust between them. The said snooping cannot be said to be a consequence of the Court admitting the evidence obtained by snooping. In fact, snooping between partners is an effect and not a cause of marital disharmony. The privacy of communication exists between spouses, as has been recognised by Section 122, but the said right of privacy cannot be absolute and has to be read also in light of the exception provided in Section 122 of the Evidence Act.”
On the issue of right to privacy :
On the larger question of right to privacy the Supreme Court referred to K.S. Puttaswamy (Privacy-9J.) vs. Union of India and Kaushal Kishore vs. State of Uttar Pradesh and admitted that right to privacy can also be enforced against non-state actors particularly against individuals in this instance case.
While dismissing wife’s objection based on the right to privacy, Justice Nagrathna explained section 122 of Indian Evidence Act, does not recognise any privacy right between spouses but it creates an exception to such privacy.
The Apex Court further observed that the,
“said Section carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all. In this regard, we reiterate that as per procedure established by law, Section 122 of the Evidence Act does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution, let alone invade upon such right. The reason is because Section 122 of the Evidence Act recognises the right to a fair trial, right to produce relevant evidence and a right to prove one’s case against a spouse”
Case Title: Vibhor Garg v. Neha
Case No: SLP(C) No. 21195/2021