Supreme Court To Consider If Husband Can Produce Secretly Recorded Phone Conversations Of Wife As Evidence In Divorce Case

Last month Punjab & Haryana High Court held that recording of telephonic conversation of the wife without her knowledge is an infringement of her privacy. The High Court had also remarked that a discreetly recorded phone conversation won’t be admissible in evidence before the Family Court.

The Supreme Court yesterday issued notice in a SLP challenging this Punjab and Haryana High Court’s order. (Read order at the end of this article). 

Punjab & Haryana High Court Order 

It cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptitiously by one of the parties.

The Court also remarked that if a spouse would be permitted to record conversations with an unsuspecting partner and to produce the same in a court of law in a petition under Section 13 of the Act, that would indeed not be feasible.

Moreover, the Court added, the court would be ill-equipped to assess the circumstances in which a particular response may have been elicited from a spouse at a given point of time, notwithstanding the right of cross-examination.

Observing so, the High Court had set aside the Family Court’s order which had allowed the CD of phone conversations of wife recorded by the husband as evidence. 

Challenged by Husband:

The petitioner-husband along with assailing the High Court’s judgement had also sought an ex parte stay against the High court’s order and the matrimonial proceedings pending before the Family Court, reported Livelaw. 

Petition

Advocate Ankit Swarup, appearing for the petitioner, argued that that the right to privacy is not absolute and is to be balanced in context of other rights and values. Referring to the exception laid down in Section 122 of the Indian Evidence Act, 1872, it was argued that communication between married persons can be disclosed in matrimonial proceedings seeking a decree of divorce. The petition read:

In the matrimonial cases involving an allegation of cruelty – mental cruelty, the parties are bound to recreate the issues and events which were otherwise confined to the matrimonial home and the bedroom and away from the public eye, in the Courtroom. On many occasions, such events and issues between the married persons do not have any witnesses apart from the said married person. Such events are also not capable of being proved by documentary evidence.

In the present age of technology and computers, such evidence can be brought to the court using the technology and modern electronic devices available. However, as a matter of caution, the Courts are to be circumspect in relying upon such evidence without satisfying itself as to the authenticity and reliability of such evidence recorded on the electronic devices.

Referring to Section 14 and Section 20 of the Family Court Act, 1984, the petitioner had contended that the same were enacted so as to secure the right of fair trial of the married person bringing the suit before the Matrimonial Court and for the discovery of truth in the dispute.

It was also averred in the petition that the petitioner’s endeavour is to only prove the events and cruelty which was committed on him by the wife. The petition further stated:

The recorded conversation held between the parties is another way of adducing evidence and recreating before the court the events of the matrimonial home just like the evidence of oral testimony of parties and other witnesses does. Without providing the aspect of cruelty, the petitioner would become unsuccessful in seeking a decree of divorce from the Family Court.

Supreme Court:

A bench comprising Justices Vineet Saran and BV Nagarathna issued notice returnable by February 3.

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