The Punjab and Haryana High Court decision here is challenged at Apex Court (Diary No.- 31421 – 2021, SLP(C) No. 021195/2021 Registered on 24-12-2021). The Appeal was allowed by the Supreme Court in the following terms.
From Para 10.2 and 10.3,
10.2 Section 14 of the F.C. Act gives a wide discretion to the Family Courts in deciding matrimonial disputes since they can go beyond the strict rules of evidence in terms of relevance and admissibility while admitting any evidence which they think is relevant for the adjudication of the dispute at hand. However, we do not think that adverting to Section 14 of the F.C. Act is required in the present facts when the Evidence Act itself permits such a communication to be admitted in evidence by way of an exception. The powers under Section 14 of the F.C. Act would normally be resorted to in a scenario where the Evidence Act creates some prohibition with respect to relevance or admissibility of any evidence. But if the Family Court is of the opinion that it is expedient to go beyond the procedural technicalities of the Evidence Act for adjudicating the dispute, in such a case, the Family Court is allowed to take that evidence on record, notwithstanding what is stated in the Evidence Act. But the exercise of this extraordinary power under Section 14 of the F.C. Act is not warranted in this case.
10.3 Some arguments have been made by the learned amicus about the fact that permitting such an evidence would jeopardise domestic harmony and matrimonial relationship inasmuch as it would encourage snooping on the spouse, thereby fracturing the very objective of Section 122 of the Evidence Act. We do not think such an argument is tenable. If the marriage has reached a stage where spouses are actively snooping on each other, that is in itself a symptom of a broken relationship and denotes a lack of trust between them. The said snooping cannot be said to be a consequence of the Court admitting the evidence obtained by snooping. In fact, snooping between partners is an effect and not a cause of marital disharmony. The privacy of communication exists between spouses, as has been recognised by Section 122, but the said right of privacy cannot be absolute and has to be read also in light of the exception provided in Section 122 of the Evidence Act. When Section 122 itself recognises and protects spousal privacy in the first part of the Section then, the said right has to be construed in terms of Section 122 only and has to be subject to the exception contained therein. In other words, when the right to privacy of communication between spouses is the very basis of Section 122 then the exceptions to these should also flow only from Section 122 of the Evidence Act.
From Para 12,
12. In view of the aforesaid discussion, we firstly observe that Section 122 of the Evidence Act is not assailed in these proceedings. Secondly, under Section 122 of the said Act, privileged communication between the spouses is protected in the context of fostering intimate relationship. However, the exception under Section 122 of the Evidence Act has to be construed in light of right to a fair trial which is also an aspect of Article 21 of the Constitution of India. 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 of the aforesaid Act does not recognise such a right at all. On the other hand, the said Section carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all. In this regard, we reiterate that as per procedure established by law, Section 122 of the Evidence Act 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 of the Evidence Act 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.
Citations:
Other Sources:
https://indiankanoon.org/doc/5779829/
https://www.casemine.com/judgement/in/6875053de7e43c3ec3ce6a7c
https://www.livelaw.in/top-stories/secretly-recorded-telephonic-conversation-of-spouse-admissible-in-matrimonial-cases-supreme-court-297390
Supreme Court Landmark Judgment Allows Secret Spouse Recordings as Evidence in Divorce Cases
https://www.indianemployees.com/judgments/details/vibhor-garg-versus-neha
Supreme Court Major Ruling Explained: Can Secret Recordings In A Bedroom Be Used In Divorce Cases?
Secret recording of conversations of spouses can be used in matrimonial cases: Supreme Court
https://www.theedulaw.in/content/judgements/261/Secret-call-recordings-now-valid-evidence-in-matrimonial-dispute-
Evidentiary Value of Secretly Recorded Phone Calls Between Spouses in Marital Disputes
