“Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible”, the Madurai Bench of the Madras High Court has held.
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The court was hearing a civil revision petition filed by a woman. The marriage with her husband was solemnised in 2003. The couple have two children born through the wedlock. Alleging cruelty, adultery and desertion on the part of the woman, the man had filed a petition for dissolution of marriage before a sub-court in Paramakudi in Ramanathapuram district. He marked the call data record of the wife. The woman had filed an application seeking rejection of the document. It was dismissed as premature. Challenging the same, the civil revision petition was filed.
Justice G.R. Swaminathan observed that 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.
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Obtaining information pertaining to the privacy of the wife without her knowledge and consent cannot be viewed benignly. Only if it is authoritatively laid down that evidence procured in breach of the privacy rights is not admissible, spouses will not resort to surveillance of the other, the court observed.
One may wonder if marital misconduct which has to be made out for obtaining relief may become impossible to prove. It is not so. It can very well be established and proved by appropriate means and in exceptional cases, the court can even take it upon itself to unearth the truth. Law cannot proceed on the premise that marital misconduct is the norm. It cannot permit or encourage snooping by one spouse on the other, the court observed.
The court observed that the husband had stealthily obtained the information pertaining to the call history of his wife. He was not the owner of the mobile device or the registered user of the sim card. He had clandestine custody of the same for probably a brief while. There has been a clear breach of the privacy of the wife.
The court observed that in the light of Section 63 and Section 39 of Bharatiya Sakshya Adhiniyam, 2023 and Section 79 A of the Information Technology Act, 2000, a person desirous of relying on any electronic record as a document in evidence must submit a certificate at the time of filing the electronic record.
It is admitted by the Central government that only a handful of entities have been notified till date as experts under Section 79 A of the Act. It is surprising to note that no expert has been notified in Tamil Nadu. It is beyond dispute that Tamil Nadu has good IT infrastructure and skilled manpower, the court observed and directed the Ministry of Electronics and Information Technology to expeditiously notify a sufficient number of persons/bodies/entities as experts in Tamil Nadu. It would be advisable to have such experts in each district in Tamil Nadu, the court directed and allowed the petition.