Law Cannot Encourage Snooping By One Spouse On The Other; Privacy Includes Spousal Privacy: Madras HC Refused To Permit Husband To Produce Stealthily Obtained Call Record Of Wife
The Madras High Court held that the law cannot permit or encourage snooping by one spouse on the other since privacy as a fundamental right includes spousal privacy.
The Court set aside the trial court's order allowing the use of electronic call data records presented by a husband in his divorce proceedings against his wife, that had been "stealthily obtained" by him. The Bench held that “privacy as a fundamental right includes spousal privacy” and stated that “evidence obtained by invading this right is inadmissible.”
A Single Bench of Justice G.R. Swaminathan observed, “Obtaining of information pertaining to the privacy of the wife without her knowledge and consent cannot be viewed benignly. Only if it is authoritatively laid down that evidence procured in breach of the privacy rights is not admissible, spouses will not resort to surveillance of the other. One may wonder if marital misconduct which has to be made out for obtaining relief may become impossible of proving. It is not so. It can very well be established and proved by appropriate means. Interrogatories can be served. Adverse inference can be drawn. The charged spouse can be called upon to file affidavit with the express warning that falsity will lead to prosecution for perjury. In exceptional cases, the court can even take it upon itself to unearth the truth. Law cannot proceed on the premise that marital misconduct is the norm. It cannot permit or encourage snooping by one spouse on the other. Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible.”
Advocate D. Senthil appeared for the petitioner, while Senior Counsel Srinath Sridevan represented the respondent.
The case involved a matrimonial dispute in which the husband alleged “cruelty, adultery, and desertion” by his wife, introducing call history records as evidence. These records, however, were obtained without her consent, and the wife filed a petition objecting to their admissibility, claiming that her privacy had been breached.
The High Court noted that the call history records had not been accompanied by a certificate as required under Section 65B(4) of the Indian Evidence Act, 1872. It stated that the husband’s certificate was not valid, as it had to be issued by “a person occupying a responsible official position” with the telecom provider, Jio, and not by the husband himself.
The Court reiterated the Supreme Court’s decision in Justice K. Puttaswamy (Retd) v. Union of India (2017), where it was held that “privacy is a fundamental right,” and applied this principle to spousal relationships, stating that privacy between spouses must be respected. “Only if it is authoritatively laid down that evidence procured in breach of the privacy rights is not admissible,” it remarked, “spouses will not resort to surveillance of the other.”
It was further noted that “snooping on the other destroys the fabric of marital life” and that “obtaining of information pertaining to the privacy of the wife without her knowledge and consent cannot be viewed benignly.”
The Madurai Bench also addressed the requirements under the Bharatiya Sakshya Adhiniyam, 2023, which mandates certification by an “Examiner of Electronic Evidence,” as provided under Section 79A of the Information Technology Act, 2000. Currently, no certified Examiner of Electronic Evidence exists in Tamil Nadu, which the Court noted could obstruct the “right of access to justice.” Accordingly, the Court directed the Ministry of Electronics and Information Technology to “notify sufficient number of persons/bodies/entities as experts in the State of Tamil Nadu” within three months.
Consequently, the Court remarked, “Though privacy like any other fundamental right is not absolute, it was held in Justice K.Puttaswamy case by Justice D.Y.Chandrachud for himself and three other Hon'ble Judges that any curtailment or deprivation of the privacy right would have to take place under a regime of law and that the procedure must be fair, just and reasonable and subject to constitutional safeguards.”
Accordingly, the High Court allowed the revision petition.
Cause Title: R v. B & Anr.
Appearance:
Petitioner: Advocate D. Senthil
Respondents: Senior Counsel Srinath Sridevan; Deputy Solicitor General of India K. Govindarajan; Advocate J. Senthil Kumaraiah