In a historic ruling, the Supreme Court on Monday held that secretly recorded telephone conversations by a spouse can be legally used as evidence in matrimonial cases, including divorces. The court explained that such a recording is not a breach of privacy and is allowed under provisions of law.
A two-judge bench consisting of Justices BV Nagarathna and Satish Chandra Sharma set aside a 2021 ruling by the Punjab and Haryana High Court, which had prevented a husband from filing a compact disc (CD) or memory card having taped conversations with his estranged wife—recorded without her knowledge—as part of his divorce case.
The top court ruled on the basis of Section 122 of the Indian Evidence Act, which prohibits revelation of confidential communications between spouses unless both parties are willing. But it noted that the said section has an exception when the issue pertains to a legal proceeding between the two parties involved. This provision now aligns with Section 121 under the Bharatiya Sakshya Adhiniyam, 2023.
In the view of the bench, although privacy in a marriage is acknowledged, it is not an absolute right. They reiterated that the exception under Section 122 has to be weighed against the constitutional right to a fair trial under Article 21.
"We have also quoted the 2017 KS Puttaswamy judgment," the bench stated, referring to the landmark case that confirmed privacy as a fundamental right. "But such rights are not applicable horizontally in all situations. Section 122 does not impinge upon the right to privacy as contemplated under Article 21 since it derives from the right to a fair trial."
The judges clarified that a conversation secretly recorded between spouses might be used as admissible proof, particularly if in those situations alleged matters of mental cruelty or severe marital disputes are contested. They underlined the fact that making use of such evidence in court proceedings serves procedural justice.
"Privacy of communication is available, but not absolute," the bench re-emphasized, going on to say that "statutory exceptions in the Evidence Act are provided for ensuring a balance between the right of privacy and the requirement of justice.".
On the wider issue of whether communication between spouses is to be regarded as protected, the court noted that where partners engage in surveillance or hidden recordings, it normally signals a broken-down relationship. "Snooping is not caused by pending proceedings but is a symptom of a breakdown marriage," the court added, affirming that such evidence can properly be admitted in legal cases between the couple.
The Supreme Court ordered the reinstatement of the 2020 ruling of Bathinda family court, which had allowed the husband to submit the CD as evidence in favor of his divorce petition on a condition that its authenticity would be verified.
The case began after a man, in 2017, filed a divorce petition against his wife with whom he has a daughter. In support of his plea, the husband had produced recordings of telephone conversations between him and his wife, allegedly, that were recorded without her consent.
First, the family court in Bathinda had directed that the contents of the CD could be utilized, subject to their being checked. But in 2021, the Punjab and Haryana High Court overturned this ruling on the grounds that the recording was a "clear-cut infringement" of the privacy of the wife and made the evidence unreliable because of the dubious method of collection.
After this defeat, the husband went to the Supreme Court, and the court took up the case to consider the interface of right to privacy and admissibility rules under the law of evidence. The court appointed advocate Vrinda Grover as an amicus curiae to aid in the case. Grover asserted that pre-digital age legislations such as Section 122—written before the era of digital technology—need to be reinterpreted considering the dynamics of the times and new gender roles.
In its final ruling, the Supreme Court embraced a statutory interpretation technique, emphasizing that the exception in Section 122 should be interpreted in consonance with constitutional principles, particularly the right to a fair trial. The court finally decided that there had been no violation of privacy in this case and that such material could be inspected in the context of legal examination.
"Considering the above, we put aside the challenged order and reinstate the 2020 family court order. The family court may recover the recorded conversations and subject it to test under the relevant provisions of law," the order stated.
This ruling is likely to have profound implications for matrimonial cases throughout India, particularly as the use of digital technology as a means of gathering evidence becomes more widespread and as the law surrounding digital privacy evolves.
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