MADURAI: “Privacy as a fundamental right includes spousal privacy and evidence obtained by invading this right is inadmissible,” said the Madurai Bench of the Madras High Court recently while ruling on the admissibility of phone call records as evidence in a divorce case.
Justice GR Swaminathan made the observation while deciding on a petition filed by a woman against an order passed by a subordinate court in Paramakudi which had dismissed her plea to reject the mobile call records obtained by her husband without her consent. The husband had submitted the call data before the lower court to prove his charge of adultery against the wife.
The judge cited several verdicts pronounced by courts across the world on the issue. While deliberating on the reasons attributed by Indian courts for admitting such evidence, the judge noted that the most common justification came in the form of Section 14 of the Family Courts Act, 1984, which allows Family Courts to receive inadmissible evidence.
Disagreeing with the above view, Justice Swaminathan said there is no legislative validation for evidence obtained by violating the fundamental right to privacy.
The discretionary power conferred on the family court under Section 14 cannot be an excuse for courts to carve out exceptions on their own, he added. Justice Swaminathan also referred to the 94th Report of the Law Commission of India that suggested exclusion of evidence unlawfully obtained in criminal cases.
‘Trust forms bedrock of matrimonial relationships’
The judge then concluded by saying, “Trust forms the bedrock of matrimonial relationships. Spouses must have implicit and total faith and confidence in each other. Snooping on the other destroys the fabric of marital life. Women have their own autonomy. They are entitled to expect that their private space is not invaded. Only if it is authoritatively laid down that the evidence procured in breach of the privacy rights is not admissible, spouses will not resort to surveillance of the other,” he said, and set aside the Paramakudi court’s order.
Need for experts to certify electronic evidence
The judge discussed the procedure to be followed while filing electronic evidence. After a reading of Section 63 and Section 39 of BSA, 2023, and Section 79A of the Information Technology Act, 2000, the judge concluded that a person who wishes to rely on any electronic record as evidence must submit a certificate at the time of filing of the record.
The certificate must be in two parts, Part A and Part B. Part B must be filled by the expert notified under Section 79A of the I-T Act, he noted. Surprised by the centre’s statement that only a handful of entities have been notified till date as experts under the Act and that there is no such expert in Tamil Nadu, the judge said it would amount to denial of right of access to justice and directed MEITY to expeditiously notify sufficient number of persons or bodies or entities as experts in Tamil Nadu, preferably one for each district, within three months.