BREAKING| Secretly Recorded Telephonic Conversation Of Spouse Admissible Evidence In Matrimonial Cases : Supreme Court

The Supreme Court on Monday (July 14) set aside the Punjab & Haryana High Court's judgment that held that recording a wife's telephonic conversation without her knowledge amounts to a "clear breach" of her fundamental right of privacy and cannot be admitted in evidence before a Family Court.

A bench of Justice BV Nagarathna and Justice Satish Chandra Sharma thus held that a secretly recorded telephonic conversation of the spouse is admissible as evidence in matrimonial proceedings.

Section 122 of the Indian Evidence Act bars disclosure of marital communications without consent, except in legal proceedings between the spouses or where one is prosecuted for a crime against the other.

The Court stated that the spousal privilege under the first part of the section cannot be absolute and must be read in light of the exception provided in the same provision. “Exception under Section 122 has to be construed in light of the right to a fair trial, which is also an aspect of Article 21 of the Constitution,” the Court said.

The Court held that there was no breach of privacy in the present case. It observed that Section 122 of the Evidence Act does not recognise any such right. On the contrary, the provision carves out an exception to the privacy between spouses. The bench clarified that the section does not deal with the right to privacy under Article 21 of the Constitution, let alone invade such a right.

"We do not think there is any breach of privacy in this case. In fact, Section 122 of Evidence Act does not recognise any such right. On the other hand, it carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all. It does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution let alone invade upon such right. It does recognise right to a fair trial, right to produce relevant evidence, and right to prove one's case against the spouse so as to avail relief sought", Justice Nagarathna pronounced.

The Court rejected the argument that permitting such evidence would jeopardise domestic harmony and encourage snooping between spouses.

"Some arguments have been made that permitting such an evidence would jeopardise domestic harmony in matrimonial relationships as it would encourage snooping on the spouses, therefore, defeating the objective of section 122 of the Evidence Act. We don't 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 bench observed while pronouncing the judgment.

Background

The High Court's judgment was delivered by Justice Lisa Gill in a case involving divorce proceedings under Section 13 of the Hindu Marriage Act, 1955. The Family Court at Bathinda had allowed the husband to rely on a compact disc containing recorded phone conversations with his wife to prove allegations of cruelty. Challenging this, the wife approached the High Court, contending that the recording was made without her consent and its acceptance would breach her fundamental right to privacy.

The High Court accepted her plea and set aside the Family Court's order. The Court noted that permitting such recordings in evidence would be unjustified, as the conversations were recorded surreptitiously by one party. It held that the circumstances in which the responses were elicited could not be ascertained and that the court would be ill-equipped to assess such context, even with cross-examination. The Court observed:

“…it cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptitiously by one of the parties.”

The High Court relied on the case of Deepinder Singh Mann v. Ranjit Kaur and reiterated that spouses often speak freely in private, unaware that every word could later be scrutinized in a court of law. It also cited the judgment of the Andhra Pradesh High Court in Smt. Rayala M. Bhuvaneswari v. Napaphander Rayala, which held that recording a spouse's conversation without consent is illegal and amounts to a violation of privacy, making such evidence inadmissible.

The husband challenged the High Court's judgment before the Supreme Court. On January 12, 2022, a bench of Justices Vineet Saran and BV Nagarathna issued notice in the SLP.

Advocate-on-Record Ankit Swarup, appearing for the petitioner-husband, argued that the right to privacy is not absolute and must be balanced with other rights and values. Referring to the exception in Section 122 of the Indian Evidence Act, 1872, it was contended that communication between married persons can be disclosed in matrimonial proceedings seeking divorce. The petition stated:

“In the matrimonial cases involving an allegation of cruelty - mental cruelty, the parties are bound to recreate the issues and events which were otherwise confined to the matrimonial home and the bedroom and away from the public eye, in the Courtroom. On many occasions, such events and issues between the married persons do not have any witnesses apart from the said married person. Such events are also not capable of being proved by documentary evidence. In the present age of technology and computers, such evidence can be brought to the court using the technology and modern electronic devices available. However, as a matter of caution, the Courts are to be circumspect in relying upon such evidence without satisfying itself as to the authenticity and reliability of such evidence recorded on the electronic devices.”

The petitioner also referred to Sections 14 and 20 of the Family Courts Act, 1984, asserting that these provisions were enacted to ensure a fair trial and aid in the discovery of truth in matrimonial disputes. He argued that the recorded conversation was intended to establish the alleged cruelty by the wife.

“The recorded conversation held between the parties is another way of adducing evidence and recreating before the court the events of the matrimonial home just like the evidence of oral testimony of parties and other witnesses does. Without providing the aspect of cruelty, the petitioner would become unsuccessful in seeking a decree of divorce from the Family Court,” the petition stated.

Appearances: Adv Ankit Swarup and AoR Rishi Bhargava for the appellant; Sr Adv Gagan Gupta for the respondent.

Case no. – SLP(C) No. 21195/2021

Case Title – Vibhor Garg v. Neha