Private Chat in Divorce Case – Supreme Court

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Pvt chat recorded by spouse admissible as evidence: SC

New Delhi: Supreme Court on Monday held that a private conversation between spouses, secretly recorded by one of them, is admissible as evidence in a matrimonial dispute and would not amount to breach of right to privacy.

Enumerating section 122 of the Evidence Act, a bench of Justices B V Nagarathna and Satish Chandra Sharma said it dealt with the rule of privilege protecting disclosure of all communications between husband and wife during marriage except in litigation between them. It said, “Under section 122, privileged communication between spouses is protected in the context of fostering intimate relationship. However, the exception under section 122 has to be construed in light of right to a fair trial which is also an aspect of Article 21 of the Constitution.”

“When we weigh the respective rights of the parties in a trial within the parameters of section 122 of the Evidence Act, we do not think that there is any breach of right to privacy in the instant case. In fact, section 122 does not recognise such a right at all. On the other hand, the section carves out an exception to right to privacy between spouses, and therefore, cannot be applied horizontally at all,” the bench said,

In this regard, “we eiterate that as per procedure established by law, section 122 does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution, let alone invade upon such right. The reason is because section 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”, it said.

The section talks about communications during marriage and states that “no person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other”. SC made the observations on man’s plea to bring privileged communication as evidence before a family court in matrimonial dispute. It allowed his plea. The court said the husband in this case would have ordinarily been barred from disclosing any form of communication that was disclosed by his wife to him by virtue of being a privi section 122. “But due to the alleged communication under exception provided in that section, the bar on the disclosure of such communication is lifted,” it said.

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