Summary
In a husband's divorce petition the Family Court allowed him to prove telephone conversations with his wife that he had recorded without her knowledge, but the High Court excluded them as a breach of her right to privacy. The Supreme Court restored the Family Court's order, holding that a secretly recorded conversation is not inadmissible merely because it was obtained without consent if relevance, voice identification and accuracy are proved; that Section 122 of the Evidence Act bars only the spouse's own disclosure and expressly excepts suits between married persons; and that Section 122 protects the sanctity of marriage, not privacy, so the privacy objection does not arise in litigation between spouses, the exception being read in light of the right to a fair trial.
Issues
- Whether a conversation between spouses secretly recorded by one of them on a mobile phone can be permitted to be given in evidence.
- Whether, in light of Section 122 of the Evidence Act and Sections 14 and 20 of the Family Courts Act, 1984, a communication between spouses can be proved in a divorce proceeding between them.
- Whether such recorded evidence should be excluded solely on the ground that it violates the right to privacy of the other spouse under Article 21 of the Constitution.
Provisions considered
- Section 122, Indian Evidence Act, 1872The section has two disjunctive parts, compellability and permissibility; the second part is followed by exceptions for suits between married persons and prosecutions of one spouse for a crime against the other. The bar is on the recipient spouse disclosing a communication made to him, not on the communication itself, which may be proved by other means; it attaches by reference to marital status when the communication was made. In a divorce petition between the spouses the exception applies and the husband may prove the wife's communications to him. (¶¶ 8, 8.4, 8.7, 8.8, 10, 10.1, 10.3, 12, 12.1)
- Sections 65A and 65B, Indian Evidence Act, 1872Parliament inserted these provisions to deal specifically with proof and admissibility of electronic records, reflecting that the law of evidence aims to break barriers rather than create them; better forms of evidence made possible by technology should not be shut out on the ground of privacy. (¶¶ 10.5, 10.6)
- Sections 7 and 8, Indian Evidence Act, 1872Following Yusufalli Nagree and R.M. Malkani, a contemporaneous tape record of a relevant conversation is itself a relevant fact admissible under Sections 7 and 8, subject to proof of time, place, accuracy and voice identification; the court must be satisfied that the record is not tampered with. (¶¶ 9.3, 9.4, 9.5)
- Section 14, Family Courts Act, 1984Section 14 gives Family Courts wide discretion to receive evidence beyond the strict rules of relevance and admissibility, but resort to it was unnecessary because the Evidence Act itself permits the communication through the Section 122 exception; the power is for cases where the Evidence Act creates a prohibition. (¶ 10.2)
- Article 21, Constitution of IndiaAfter surveying Puttaswamy and Kaushal Kishor on horizontal application of the right to privacy, the Court held that Section 122 does not touch upon or invade the Article 21 right to privacy; it recognises the right to a fair trial and to prove one's case against a spouse, and the exception for suits between spouses must be construed in light of the right to a fair trial, which is also an aspect of Article 21. (¶¶ 11.1, 11.2, 11.3, 12, 12.3, 12.6)
Held
- Evidence is not inadmissible merely because it was not obtained strictly in accordance with law or was recorded without the knowledge of the person speaking; the court must be cautious about accuracy and reliability but cannot treat such evidence as irrelevant or inadmissible on that ground alone. A recorded conversation is admissible on the three-fold test of relevance, identification of voices and proof of accuracy ruling out tampering. (¶¶ 9.2, 9.3, 9.4, 9.5)
- Section 122 of the Evidence Act has a compellability part and a permissibility part, read disjunctively. The bar operates against the spouse to whom the communication was made and not against the communication itself, which may be proved through other witnesses, documents or devices; it does not apply to acts seen or experienced by the spouse, to communications made to third parties, or to what the witness spouse himself said. The bar attaches by reference to the marital status when the communication was made. (¶¶ 8.1, 8.4, 8.6, 8.8)
- Both exceptions in Section 122 dispense with the requirement of the other spouse's consent in suits between married persons and in prosecutions of one spouse for a crime against the other. A divorce petition under Section 13 of the Hindu Marriage Act is such a suit, so the husband may disclose and prove the wife's communications to him; a phone that recorded the conversation is no different from an eavesdropper. (¶¶ 8.8, 10, 10.1, 12.1)
- The power under Section 14 of the Family Courts Act to go beyond the strict rules of evidence is to be resorted to where the Evidence Act creates a prohibition on relevance or admissibility; where the Evidence Act itself permits the evidence by way of exception, invoking Section 14 is unnecessary. (¶ 10.2)
- The argument that admitting such evidence would encourage snooping and jeopardise domestic harmony is untenable: snooping between spouses is a symptom and effect of a broken relationship, not a consequence of the court admitting the evidence. The privacy of spousal communication recognised in the first part of Section 122 is not absolute and is subject to the exception in the same section. (¶ 10.3)
- The purpose of the law of evidence is not to create barriers but to enable a clearer picture before the judge; relevant conversations available on an electronic device, often the best evidence in matrimonial disputes, should not be shut out on the ground of privacy, which would defeat the object of the Evidence Act as reflected in the insertion of Sections 65A and 65B. (¶¶ 10.4, 10.5)
- The founding rationale of Section 122 is protection of the sanctity of marriage and domestic confidence, not the right to privacy of the individuals. Section 122 does not recognise a privacy right, carves out an exception for litigation between spouses, and cannot be applied horizontally; its exception must be construed in light of the right to a fair trial under Article 21. In suits between spouses, where the privilege is not granted, the right to privacy is not a relevant consideration and there was no breach of privacy in admitting the recordings. (¶¶ 12, 12.4, 12.5, 12.6)
- High Court decisions permitting recorded spousal conversations within the parameters of Section 122 (including Preeti Jain, Jil, Essaki Ammal, Havovi Sethna and Deepti Kapur) were approved; those excluding such recordings on the ground of privacy under Article 21 were not followed. (¶¶ 11, 11.1)
Result
Appeal allowed; High Court order dated 12.11.2021 set aside; Family Court order dated 29.01.2020 restored; Family Court directed to take on record the husband's supplementary affidavit with the memory cards, CD and transcripts and consider them as evidence in accordance with law; Registry to pay Rs. 1,00,000 honorarium to the amicus curiae; parties to bear their own costs.