Truth is the complex, indispensable foundation in individual litigations, including matrimonial disputes. Yet, it is not easy to unravel the realities involved in a case. British scholar Terry Eagleton said, “Courtrooms, like novels, blur the distinction between fact and fiction... The jury judge not on the facts, but between rival versions of them.” However, what is presented to the court by way of evidence matters, for knowing the truth.
Recently, the Supreme Court, in a judgement authored by Justice B V Nagarathna, held that even secretly recorded telephonic communications of a spouse are admissible in evidence in a matrimonial dispute. The court held that such conversations cannot claim immunity from judicial scanning on privacy grounds. The court emphasised a litigant’s right to a fair trial, which is a facet of Article 21, while negating the privacy arguments, also based on Article 21.
The case has a curious trajectory. The husband filed a divorce petition with allegations of cruelty in the family court in Bathinda, Punjab. Among other materials, the husband placed memory cards/ chips of mobile phones, compact discs, and conversation transcripts as evidence before the court. He claimed that he had recorded certain conversations between the wife and the husband between 2010 and 2016, which were contained in these materials, and he sought their admission as evidence. The family court accepted the request. Aggrieved by this, the wife moved the Punjab and Haryana High Court, which allowed the petition and set aside the family court order. The husband challenged the High Court order before the Supreme Court. The top court has now reversed the High Court’s order and revived the permission granted by the family court.
Collection of evidence by snooping is like a ‘sting operation’ in matrimony. Its ethical aspects could always be debatable. In the real world, no genuine intimate relationship would involve a secret recording of conversations to use it as evidence in a future litigation. This is particularly true in a husband-wife relationship. As Justice Nagarathna rightly notes, “snooping between partners is an effect and not a cause of marital disharmony”. This was the court’s answer to the apprehension expressed by the amicus curiae that the indulgence to such evidence might unsettle spousal harmony.
The court was examining the scope of Section 122 of the Indian Evidence Act, which says that one cannot be compelled to disclose any communication to his or her spouse, and it is impermissible to reveal such communication, when there is no consent. The exception to this general stipulation is also in the very same provision. It says that in suits between the spouses or prosecution against one of them, this embargo does not apply. The Supreme Court decoded the section and held that the exception carved out in Section 122 makes it clear that matrimonial conversations could be adduced as evidence in support of the plea by a party to dispute, even if those are recorded clandestinely.
The privacy concerns raised in the case are unacceptable. In a private litigation, any evidence will have certain traits of privacy. A private litigation rests upon private materials. Shutting off such materials would forestall a full-fledged judicial investigation into the dispute. That is why Section 122 provides for the exception to its disclosure ban. It states explicitly that there is no impediment in looking into the spousal conversations “in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other”. The exception reflects the imaginative intelligence of the lawmaker.
The rationale of the law is clear and simple. In a dispute between husband and wife, no spouse should be disarmed on account of the provision when they want to rely on the personal communication between them to prove a point. According to Article 21 of the Constitution, the right to life and personal liberty guaranteed cannot be taken away “except according to procedure established by law”. Thus, a fair trial is an essential component of Article 21 rights.
Though in the Puttaswamy verdict (2017) the Supreme Court held that the right to privacy is part of Article 21, it did not say that such a right is absolute. It remains a qualified right. Section 122 of the Evidence Act permits adducing the relevant evidence. This scheme of the Evidence Act is followed verbatim in the Bharatiya Sakshya Adhiniyam, 2023, which was enacted long after the Puttaswamy judgement. Parliament reiterated Section 122 of the old Act as Section 128 in the new one, endorsing the provision’s pragmatism and realism on evidence.
The morality of the method employed in the collection of evidence is different from the value of the evidence so collected. If the element of deception is so severe that it nullifies the value of evidence, that too can be suggested by way of cross-examination or counter-evidence in the case. For example, if one were made to act in a certain way or to speak certain things, it can very well be explained. The Supreme Court judgement does not foreclose such procedural courses available for the other party. Again, if a person wants an in-camera trial, the courts are empowered to do so, by which the content of oral evidence can be kept away from public gaze. The court can also withhold the identity of the contesting parties even in a published judgement, in appropriate cases.
The Supreme Court judgement is comprehensive. It quoted the view of the Madras High Court in Ayyanar Padayachi case (1970), which said that the provision in the Evidence Act “protects the individuals and not the communication”. The Supreme Court has analysed the law by contextualising it appropriately. It relied on the earlier verdict in Yusufalli Esmail Nagree vs Maharashtra (1967), which held that in the absence of duress, coercion or compulsion, a tape-recorded conversation is admissible in evidence to prove the allegation of corruption.
The recent judgement offers significant lessons for the public as well. An unfortunate matrimony leads to unpleasant litigation with equally unpleasant procedures. The wiser course in such a situation will be to settle the dispute amicably, except when there are compelling circumstances like blatant violation of rights, to carry on the fight.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)