Balancing the right to fair trial and the right to privacy, the Supreme Court recently ruled that secretly recorded conversations between spouses can be admitted in divorce proceedings. The order is consequential in that it settled a question on which various high courts had differed over the years. The top court’s clarification came in an appeal against a Punjab and Haryana High Court order that had disallowed admission of confidential recordings as evidence on the grounds of violation of privacy.
In deciding the matter, the SC relied on Section 122 of the Evidence Act, 1872 that states a person cannot be compelled to testify against their spouse in a criminal case. However, the section also carves out an exception for proceedings between the spouses. This exception, the court pointed out, allows one spouse to testify to their conversations against the other in a divorce case. In this context, the bench of Justices B V Nagarathna and Satish Chandra Sharma equated the recording device to an eavesdropper. While the concept of spousal privilege and the efforts of the family courts are intended to protect a marriage, the SC noted that the very act of one spouse secretly recording the other showed the marriage had been damaged. Although high courts have said there is reasonable expectation of privacy within a marriage, the SC balanced the right to privacy with the right to a fair trial. Therefore, if the evidence can be independently verified, it is relevant and falls under the exception, and thus may be admitted.
The SC’s ruling is significant in that it settles a question that the lower courts have grappled with, and also because it opens the door to admissibility of evidence in cases of intimate partner violence or marital rape, which may otherwise be difficult to prove. It could, arguably, benefit women. However, an issue raised by the court-appointed amicus curiae must also be considered—that disproportionately more men than women have access to digital devices and the associated knowhow, which may put the latter at a serious disadvantage in legal proceedings between the two. Although the top court ruled out that the verdict would ‘incentivise’ surveillance within a marriage—as, by then, the marriage is already considered damaged—the possibility must be considered.