Secretly recorded conversation of spouse admissible evidence in marital dispute, rules SC

Holding that secretly recorded conversations of spouses were admissible as evidence in matrimonial disputes, the Supreme Court on Monday said the right to privacy was not a relevant consideration in such cases.

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A Bench of Justice BV Nagarathna and Justice Satish Chandra Sharma set aside a Punjab and Haryana High Court verdict that had said recording a wife's telephonic conversation without her knowledge cannot be admitted in evidence before a family court as it amounted to violation of her fundamental right of privacy.

Allowing the husband’s appeal against the November 12, 2021, order of the high court, the top court restored the order passed by the Family Court in Bathinda on January 29, 2020, which had held the secretly recorded conversations of the wife to be admissible.

“The family court is directed to take on record the supplementary affidavit filed by way of examination-in-chief along with memory card/chip of the mobile phones, compact disc (CD) and transcript of the conversation recorded in memory card/chips of the mobile phones for the relevant period and consider the same as evidence, in accordance with law,” the top court said.

“In fact, Section 122 of the aforesaid Act does not recognise such a right at all. On the other hand, 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 so as to avail the relief sought for by a party,” the SC said.

Writing the judgment for the Bench, Justice Nagarathna said, “In our view, Section 122 of the Evidence Act does not concern itself with right to privacy vis-à-vis spouses which is evident on a reading of the Section and on discerning its plain meaning. The 69th report of the Law Commission of India in 1977 observed that the section is “based on the abiding communication between the husband and wife, which is of such a nature that their mutual communications are not always to be regarded on the same footing as communications between persons who have no such intimate tie”.

The Bench said the founding rationale for Section 122 of the said Act, as has been recognised by the Law Commission and subsequently by certain high courts, was to protect the sanctity of marriage and not the right to privacy of the individuals involved.

“Therefore, in adjudicating situations where the privilege under Section 122 of the Act is not granted, as in suits between a couple (an exception provided for in Section 122 itself), the right to privacy is not a relevant consideration, since it is not the rationale under which spousal communications were deemed privileged under Section 122 of the Act,” it said.

“Under Section 122 of the said Act, privileged communication between the spouses is protected in the context of fostering intimate relationships. 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,” the Bench said.

“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 top court said.