Secret recording of conversations of spouses can be used in matrimonial cases: SC

A bench comprising Justice B V Nagarathna and Satish Chandra Sharma set aside a verdict of the Punjab and Haryana High Court in a case.

New Delhi: In a significant judgment, the Supreme Court on Monday set aside the Punjab and Haryana High Court's decision which barred a man from using secret phone call recordings or snooping of his wife as evidence in divorce proceedings, holding that it can't be termed as "any breach of privacy."

"We do not think there is any breach of privacy in this (either spouse's recording or snooping of one another) case. In fact, Section 122 of the 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," a bench of Justices B V Nagarathna and Justice Satish Chandra Sharma said.

The court held that the fact that the conversation was recorded without the consent and knowledge of the person speaking is not a prohibition on the admissibility of the evidence.

"In today’s day and age, when the 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," Justice Nagarathna wrote in the 66-page judgment on behalf of the bench.

The court allowed an appeal by the husband against Punjab and Haryana High Court's judgment of November 12, 2021, which had held that recording a wife's telephonic conversations or snooping on her without her knowledge amounted to "clear breach of privacy" and thereby cannot be admitted as evidence before a Family Court.

The Family Court in Bathinda had allowed the husband to rely on certain recordings of phone calls against his wife to support claims of cruelty.

However, the High Court accepted the wife's challenge that the recordings were made by her husband without her knowledge or consent and violated her fundamental right to privacy.

The court allowed the Family Court to proceed with the case after taking judicial note of the recorded conversations.

Reversing the High Court's judgement, the court 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 court said, the privacy of communication exists between spouses, 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 exception has been carved out in the provision to state that such privilege between spousal communication does not extend to a case of litigation between the spouses themselves, the court added.

"In such a situation, the spouses would have the right to prove their respective cases and therefore can let in such evidence which is permitted under Section 122 of the Evidence Act, if one could use the expression “spill the beans”," the bench said.

The court emphasised before a court of law, a relevant piece of conversation available on an electronic device should not be allowed to be shut out when it is the best evidence available for deciding the dispute.

Amicus curiae Vrinda Grover contended that permitting such an evidence would jeopardise domestic harmony and matrimonial relationship and it would encourage snooping on the spouse, thereby fracturing the very objective of Section 122 of the Evidence Act.

"We do not think such an argument is tenable," the bench said.