Man secretly records wife’s phone call in marital discord case; not breach of privacy, rules Supreme Court

The Supreme Court on Monday held “secretly” recorded conversations of spouses to be evidence in matrimonial disputes, including divorce proceedings.

A bench of Justice B V Nagarathna and Satish Chandra Sharma, as a result, set aside a Punjab and Haryana High Court’s verdict which referred to right to privacy and held such conversations were protected under Section 122 of the Evidence Act not to be used in judicial proceedings.

The top court disagreed with the argument that allowing such evidence jeopardises domestic harmony and matrimonial relationship as it would also encourage snooping on the spouse.

“We do not think such an argument is tenable. 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," Justice Nagarathna said.

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The judge underlined that snooping between partners was 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…” The bench in the process restored the trial court order and said recorded conversations can be taken note of during the matrimonial proceedings.

The family court was ordered to proceed with the case after taking judicial note of the recorded conversations.

Section 122 deals with the communications during marriage and said that “no person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married”.

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The case stemmed from a matrimonial dispute between two persons , who were married in 2009 and have a daughter born in 2011.

The husband filed for divorce in 2017 citing marital discord, later amending the petition in 2018.

As part of his evidence, the husband sought to submit a supplementary affidavit along with memory cards, a compact disc, and transcripts of telephonic conversations with his wife, recorded during 2010 and 2016.

The family court at Bathinda had allowed the submission of these materials in 2020.

However, this order was challenged by the wife in the High Court, which set aside the family court’s order, ruling that the evidence had been obtained without consent and violated the respondent’s right to privacy.

Setting aside the high court verdict, the top court said there was no absolute right to privacy between spouses in matrimonial cases.

Writing the 66-page judgement, Justice Nagarathna said the right to privacy under Article 21 of the Constitution is not absolute, particularly in the context of spousal communications in matrimonial litigation.

The verdict held once a relationship deteriorates to the extent of divorce proceedings, concerns over privacy outweigh the right to a fair trial and the right to produce relevant evidence.

Therefore, in divorce proceedings, the privilege under Section 122 does not bar the admissibility of spousal communications, the top court said.

Courts must focus on enabling a fair adjudication of disputes, the order said, rather than sheltering evidence behind notions of ideal marital trust that may no longer exist.

The appellant’s right to present relevant evidence in support of his divorce plea was noted to be integral to his right to a fair trial, which is also a part of Article 21 of the Constitution.

“When the marriage has reached a point of complete breakdown, and one spouse seeks legal redress, denying them the opportunity to present crucial evidence would amount to a denial of justice. The right to privacy must yield to the right to a fair trial in such contexts,” it held.

The verdict referred to Section 122 of the Evidence Act which protected the communications made during marriage from being disclosed by one spouse without the consent of the other.

“The provision is neither an absolute bar on any person nor on the communication. It puts a specific and limited bar on a married person from disclosing the communication made to him/her by his/her spouse during the subsistence of a marriage between them,” the bench said.

The bench said the privileged communication between the spouses under section 122 is protected in the context of fostering intimate relationship.

“However, the exception under Section 122 of the Evidence Act has to be construed in light of right to a fair trial which is also an aspect of Article 21 of the Constitution of India. When we weigh the respective rights of the parties in a trial within the parameters of Section 122 of the Evidence Act, we do not think that there is any breach of right to privacy in the instant case,” it said.