Fundamental Right Of Privacy Includes Spousal Privacy, Law Cannot Permit Snooping By Spouses: Madras High Court

“Law cannot proceed on the premise that marital misconduct is the norm. It cannot permit or encourage snooping by one spouse on the other. Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible,” the court observed.

Justice GR Swaminathan thus came to the rescue of a wife against the order of the Paramakudi Subordinate Court refusing to reject the call records of the wife that was submitted by the Husband during the trial of a marital dispute. The court noted that the husband had stealthily obtained the information pertaining to the call history of his wife and thus had breached the wife's privacy.

The court also observed that the information that was obtained without the wife's consent could not be viewed benignly and it was necessary to lay down that the evidence procured in breach of privacy was not admissible as only that would prevent spouses from surveiling each other.

The court remarked that trust was the bedrock of marital relationships and spouses must have faith and confidence in each other. The court also emphasized that women had their own autonomy and were entitled to expect that their private space is not invaded.

“Trust forms the bedrock of matrimonial relationships. The spouses must have implicit and total faith and confidence in each other. Snooping on the other destroys the fabric of marital life. One cannot pry on the other. Coming specifically to the position of women, it is beyond dispute that they have their own autonomy. They are entitled to expect that their private space is not invaded. The wife may maintain a diary. She may jot down her thoughts and intimate feelings. She has every right to expect that her husband will not read its contents except with her consent. What applies to diary will apply to her mobile phone also,” the court said.

In the present case, the husband had filed the petition for dissolution of marriage on the grounds of cruelty, adultery and desertion on wife's part. The husband examined himself as witness and marked the call data record of the wife. The wife filed an application seeking to reject the document which was dismissed as premature by the sub-judge. The wife had challenged this order through the civil revision petition.

The court noted that though some courts had relied on Section 14 of the Family Courts Act to rule in favor of the admissibility of evidence obtained in breach of privacy, there was no legislative validation of evidence obtained by violating the fundamental right to privacy. As per Section 14 of the Family Courts Act, the family court could receive as evidence any report, statement, document, information, or matter that, in its opinion, would assist in dealing with the dispute effectively.

The court noted that the husband had reached out to the service provider and obtained the call records when the mobile ohone and sim where in his custody. The court also noted that the call records produced by the husband were not accompanied by a certificate contemplated under Section 65B(4) of the Indian Evidence Act and thus the sub-court should not have deferred taking a decision in the matter.

The court further noted that when marital misconduct was alleged, the same could be proved through authoritative means by calling upon the interrogatories. The court added that the charged spouse could also be called upon to file an affidavit with express warning that false information would lead to prosecution for perjury. The court opined that in exceptional circumstances, the court could even take it upon itself to unearth the truth but it could not proceed on the premise that marital misconduct is the norm and allow any snooping by the partner.

Thus, the court allowed the wife's petition and set aside the order of the Magistrate.

Counsel for the Petitioner: Mr. D.Senthil

Counsel for the Respondent: Mr.J.Senthil Kumaraiah, Mr.K.Govindarajan, Deputy Solicitor General of India

Amicus Curiae: Mr.Srinath Sridevan, Senior Counsel

Citation: 2024 LiveLaw (Mad) 414

Case Title: R v B

Case No: CRP(MD)No.2362 of 2024