Balancing right to privacy and fair trial in matrimonial disputes

In matrimonial disputes, evidence plays a crucial role in substantiating claims made by the parties. One contentious issue that arises is whether a party can produce recorded conversations between them and their spouse as evidence before the Court, in order to prove cruelty as a ground for divorce. 

The primary objection to such evidence is on grounds of breach of privacy which was recognised as a fundamental right under Article 21 of the Constitution of India, as recognized in the landmark judgment of Justice K.S. Puttaswamy v. Union of India reported as (2017) 10 SCC 1. However, like other fundamental rights, it is not absolute and must be balanced with other rights, including right to a fair trial. It is argued that the right to privacy of one party cannot overpower or be given preference over the right of the other party to lead evidence to establish their case. The right to lead evidence is crucial to a fair trial and the denial to place on record such evidence will directly have effect on the Petitioner’s ability to prove his case.

Raising an objection on the grounds of privacy at the time of production of such evidence will affect the ability of the courts to adjudicate a matrimonial matter as in matrimonial disputes most of the interactions take place in a private setting. In such a case nearly all types of evidence against the spouse would be private in nature. If the ground of privacy is considered to be an absolute bar against the admissibility of evidence, it would prevent the aggrieved spouse from getting the relief and consequentially defeating the very purpose of a spouse approaching the Court to seek divorce. Courts must make an attempt to create a balance between protecting privacy rights and ensuring that relevant evidence is not excluded, especially when it directly pertains to establishing cruelty. 

However, section 122 of the Indian Evidence Act (now Section 128 of The Bharatiya Sakshya Adhiniyam, 2023) deals with privileged communication and disclosure of communication between husband and wife. It 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 in interest, consents, except in suits between married persons."

The statute itself allows disclosure of communications between husband and wife during litigation against each other. Therefore, in divorce cases, a spouse is legally permitted to produce evidence of communication with its spouse. 

Section 122 of the Evidence Act allows communication between spouses to be disclosed without requiring consent of the other spouse.  Cruelty inflicted during telephone conversations between spouses may not be provable through other means and by allowing such evidence cruelty can be established. Section 122 which prohibits the disclosure of communication between spouses expressly provides for such disclosure as evidence before a court.

There are other provisions such as Sections 14 and 20 of the Family Courts Act, 1984 which provide special powers to Family Court with regards to the admissibility of evidence.

Section 14 allows Family Court to receive evidence which otherwise may not have been admissible under Evidence Act and at the same time, Section 20 gives an overriding effect to the Family Courts Act over any other law inconsistent with it.

Therefore even if a recorded conversations obtained only with one party consent would not typically be admissible under the Indian Evidence Act, they can be received by the Family Court if deemed relevant and necessary to resolve the dispute.

The applicability of Section 122 and consequences of allowing evidence of such private nature is under consideration before The Hon’ble Apex Court and is also to consider the question of consent of the spouse when it comes to recording of such evidence. 

Author: Yashvi Aswani, Associate