Hindu Marriage Act, 1955 – s.13 – Evidence Act, 1872 – s.122 – Family Courts Act, 1984 – Constitution of India – Art.21 – Divorce – Secretly recorded telephonic conversation of spouse – Admissibility in evidence – Right to Privacy – Husband sought permission to submit his supplementary affidavit by way of examination-in-chief along with memory cards/chips of the mobile phones, compact disc (CD) and transcript of conversations recorded in memory cards/chips – Family Court allowed the application – However, in the revision petition by the wife, the High Court held that the CD cannot be accepted in view of the right to privacy of the wife – Correctness:
Held: Order passed by the High Court set aside and that by the Family Court restored – Three-fold test of relevance, identification and accuracy has to be satisfied before a Court admits a recorded conversation in evidence – The fact that the conversation was recorded without the consent and knowledge of the person speaking is not a prohibition on the admissibility of the evidence – Husband would have ordinarily been barred from disclosing any form of communication that was disclosed by the wife to him by virtue of being a privileged communication u/s.122 of the Evidence Act, however due to the exception provided in that Section, the bar on the disclosure of such communication is lifted since the communication sought to be disclosed is in a divorce proceeding between the husband and the wife – Thus, such privileged communication is not barred from being disclosed and brought before the Court and the objection taken by the wife with respect to s.122 is not acceptable – Adverting to s.14 of the F.C. Act is not required in the instant facts when the Evidence Act itself permits such a communication to be admitted in evidence by way of an exception – Furthermore, the exception u/s.122 has to be construed in light of right to a fair trial which is also an aspect of Art.21 – When the respective rights of the parties in a trial are weighed within the parameters of s.122, there is no breach of right to privacy – Thus, as per procedure established by law, s.122 does not touch upon the aspect of right to privacy as envisaged u/Art.21 of the Constitution, let alone invade upon such right because s.122 recognises the right to a fair trial, right to produce relevant evidence and a right to prove one’s case against a spouse so as to avail the relief sought for by a party – Rationale for s.122 was to protect the sanctity of marriage and not the right to privacy of the individuals involved. [Paras 9.5, 10, 10.2, 12, 12.6, 13] Evidence Act, 1872 – s.122 – Communications during marriage – Rule of privilege protecting disclosure of all communications between persons married to one another made during marriage, except in certain cases, i.e., in litigation between themselves – Principles and interpretations – Stated. [Para 8.8]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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