Opinion SC ruling on evidence in matrimonial disputes raises questions about right to privacy

The Supreme Court ruled last week that secretly recorded conversations between spouses are admissible evidence in matrimonial disputes. The Court set aside a 2021 Punjab and Haryana High Court judgment that barred a husband, who sought a divorce, from using secretly recorded phone conversations with his wife as evidence in court. This was a crucial question for the apex court to settle, since several high courts had given different rulings on the issue. The Indian Evidence Act, 1872, codifies spousal privilege — a common law principle that a person cannot be compelled to testify against their spouse in a criminal case. While this provision carves out an exception for cases fought between the spouses themselves, high courts have been reluctant to allow secret recordings as evidence since there is a reasonable expectation of privacy in a marriage. The SC ruling is a careful balancing of the fundamental right to privacy and the right to a fair trial. It also raises larger questions about the right to privacy as understood in personal spaces in a deeply invasive digital era.

Divorce cases are often bitterly contested. At stake is not just a court decree for separation but a bundle of rights, from alimony to custody of children. With vast digital footprints even in the most private of spaces, the nature of ‘evidence’ to prove allegations in these cases has changed over the years. From CCTV footage, text chains, emails and video and voice recordings, evidence can be gathered with a single click. “The phone on which the conversation was recorded is no different from an eavesdropper,” the Court said. These are not aspects that lawmakers would have envisaged when codifying the law on spousal privilege. On the issue of privacy, the Court said that there is no right to privacy between married spouses. The ruling says that the right is applicable against the state and not against private individuals, even if that is within marriage, where a degree of privacy is expected. This interpretation is at odds with how larger SC benches have interpreted the right to privacy. The Court has in previous judgements called for a horizontal application of the right to privacy, exercised against the state and a fellow citizen.

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Allowing covert evidence in matrimonial disputes is consequential. It could have a bearing on other kinds of matrimonial issues, including marital rape, where the question of how credible evidence will be gathered is often raised. Even as the SC has allowed covert evidence, trial courts will still have to balance the relevance of such evidence, as there exists a significant gender gap in smartphone ownership and access to technology.