Madras HC: Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible

 This is primarily because there has been a clear invasion of theprivacy right of the wife. It is obvious 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. In Justice K.Puttaswamy (Retd) v. UOI (AIR 2017 SC 4161), it was held that privacy is a fundamental right. Can evidence procured in violation of this right be admissible in evidence?. This question does not admit of an easy answer. The learned amicus has tabulated the dichotomy of judicial opinion :

Admissible Inadmissible

Kethana Lokes v. Rahul Bettakotte

2024 Karnataka HC 21752

Asha Latha v. Durgesh

2023 SCC OnLine Chh 3959

Deepti Kapur v. Kunal Julka

AIR 2020 Del 156

Rayala Bhuvanewari v.

Naggaphanender AIR 2008 AP 98

Preeti v. Kunal

AIR 2016 Raj 153

Neha v. Vibhor Garg (2021)

(Punjab & Haryana HC)

Sachin Arora v. Manju

2023 DHC 3197

Sankarram v. Kalaiselvi

CMSA(MD)No.54 of 2021 (Madurai

Bench of the Madras High Court).

Neha v. Vibhor Garg has been challenged before the Hon'ble Supreme Court in SLP (C) No.21195 of 2021. Vide order dated 28.04.2022, the proceedings before the Family Court have been stayed. The order of the High Court had not been stayed. {Para 9}

10.The following observations and ratio laid down by the Court of

Appeal in Imerman v. Technquiz (2010 EWCA Civ 908) are relevant : “it was a breach of confidence for a person intentionally to obtain another person’s information secretly and without authorisation, knowing that he reasonably expected it to be private, and, without that other persons authority, ...... that the husband had an expectation of privacy at common law and in accordance with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the majority of documents stored on the server which had been accessed without his authority at a stage in the divorce proceedings ....

Why should one spouse have no right of confidentiality

enforceable against the other in relation to their separate lives and personalities?...

Each spouse is entitled to a separate life, distinct from the

shared matrimonial life.

Legal protection applies to protect the confidence itself, not merely to prevent the dissemination of information. It does not need to be shown that the information will be misused; merely that it has been obtained in breach of confidence would be sufficient.”

In Katz v. United States (389 U.S 347 (1967), Justice Harlan propounded the reasonable expectation of privacy test to determine whether an action by the government has violated an individual's reasonable expectation of privacy. It was a two part test ; the individual has exhibited an actual (subjective) expectation of privacy and the expectation is one that society is prepared to recognise as reasonable. If both requirements are met and the government has taken an action which violates this 'expectation', then the government's action has violated the individual's right. In a research paper titled “My Diary is Your Diary : The Right to Privacy in a Marriage” by Turkish author Dr.Nadire Ozdemir, it was recommended that the Harlan test laid down in the context of state surveillance should be extended to matrimonial relationships also and that the spouses should be entitled to claim right of privacy against each other.

11.Some of the courts which leaned in favour of admissibility of

evidence obtained in breach of privacy relied on Section 14 of the Family Courts Act, 1984. The said provision is as follows :

“Application of Indian Evidence Act, 1872:—A

Family Court may receive as evidence any report, statement,

documents, information or matter that may, in its opinion, assist it

to deal effectually with a dispute, whether or not the same would

be otherwise relevant or admissible under the Indian Evidence Act,

1872 (1 of 1872).”

I am however not able to agree with such an approach. Though privacy like any other fundamental right is not absolute, it was held in Justice K.Puttaswamy case by Justice D.Y.Chandrachud for himself and three other Hon'ble Judges that any curtailment or deprivation of the privacy right would have to take place under a regime of law and that the procedure must be fair, just and reasonable and subject to constitutional safeguards. The expression

“regime of law” requires some elaboration. Taking inspiration from the title of the book “Legislating Privacy” by Priscilla M Regan, I hold that “regime of law” envisages a special and comprehensive legislation dealing with the subject of privacy. Such a parliamentary legislation would also deal with the question relating to admissibility of evidence procured in breach of one's privacy. Exceptions may be created. National security and supreme public interest could be overriding considerations. In the absence of such a

comprehensive legislation, one has to conclude that there is no “regime of law” dealing with the subject of privacy as of now. The Family Courts Act, 1984 was enacted more than three decades prior to Justice Puttaswamy judgment. The discretionary power conferred on the Family Court under Section 14 of the Family Courts Act cannot be said to fall within the meaningof the aforesaid expression “regime of law”. There is no legislative validation of evidence obtained by violating the fundamental right to privacy. In this background, it would not be proper for the courts to carve out exceptions on their own.

12.The observations made by the High Court of Harare, Zimbabwe

in CRB 57 of 2016 (S. v Nsoro) dated 25.02.2016 are apposite though rendered in a criminal case. The deceased husband refused to let the accused wife read a text message which the husband had received on his phone. Out of anger over the deceased’s refusal to divulge the message, the wife had stabbed the husband causing his death. Justice Chitapi has the following take on the right to privacy between spouses :

“...Section 57 (d) of the Constitution provides that

every person has the right to privacy of their

communications. There is no law which provides that

a husband or wife has a right to infringe on the

privacy of the other’s communications. The accused’s

insistence that the deceased should divulge a

communication made to him on his phone was in

itself an infringement upon the right of the deceased

to privacy of communication. The deceased was

lawfully entitled to refuse to divulge the message he

had received on his phone to the accused albeit the

accused being his wife....

It is the court’s view that society should learn to

respect privacy of communications. Many a time, the

cellphone has been cause of ‘matrimonial quarrels

and domestic disputes because couples do not respect

each others' right to communications made or

received. A cellphone is materially a gadget which is

intended to ease communications between persons. A

lot of cases come before the courts in which a spouse

will have invaded the private communications of

another by going through messages and other

communications on the other spouse’s phone. This

practice should be deprecated. It amounts to

investigating or eavesdropping on one another.

Usually, spouses who do this will be aiming to find

evidence of wrongful conduct by the other.

Eavesdropping on another’s cellphone is evidence of

lack of trust in that other person. Courts are flooded

with cases where couples or spouses seek to prove

wrongful conduct by the other using evidence in the

form of messages retrieved from another spouse’s

phone. Such evidence unless obtained with the

consent of the owner of the phone would have been

illegally obtained in contravention of the rights of

every person to the privacy of communication as

guaranteed by Section 57 of the constitution and

evidential rules relating to admissibility of illegally

obtained evidence should be applied....”

13.I came across an interesting article titled “Rethinking the ‘Fruits

of the poisonous tree’ doctrine: Should the ‘ends’ justify the

‘means’?” (2020 SCC OnLine Blog OpEd 76). The authors Bharat Chugh & Taahaa Khan lament the consequentialist approach that ‘the tree may be poisonous but the fruit is fine’. To them, the concept of ends justifying the means is deeply troubling and calls for judicial intervention. They also invoke the “Unfair Operation Principle” applied by the UK Courts. This principle prohibits admission of evidence if in the given case, its reception runs contrary to the principles of basic fairness. The principle gives courts the discretion to decide, on a case to case basis, as to what would operate fairly or unfairly against the accused, and in appropriate cases, exclude such evidence. Theauthors refer to 94th Report of the Law Commission of India which suggests exclusion of evidence unlawfully obtained in criminal cases.

14.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. Coming specifically to the position of women, it is beyond dispute that they have their own autonomy. They are entitled to expect that their private space is not invaded. The wife may maintain a diary. She may jot down her thoughts and intimate feelings. She has every right to expect that her husband will not read its contents except with her consent. What applies to diary will apply to her mobile phone also. The Hon'ble Supreme Court is now considering the question whether forcible sexual intercourse by the husband against the wife's will would constitute marital rape. Obtaining of 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. One may wonder if marital misconduct which has to be made out for obtaining relief may become impossible of proving. It is not so. It can very well be established and proved by appropriate means. Interrogatories can be served. Adverse inference can be drawn. The charged spouse can be called upon to file affidavit with the express warning that falsity will lead to prosecution for perjury. 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. Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

CRP(MD)No.2362 of 2024

R..... ... Petitioner/Petitioner/Respondent

vs.

1.B..... ...Respondent/Respondent/Petitioner

2.The Secretary to Government,

 Ministry of Electronics and

Information Technology

(MEITY), Government of India,

 New Delhi. ... 2nd respondent

CORAM

 MR.JUSTICE G.R.SWAMINATHAN

Pronounced on : 30.10.2024.

Read full Judgment here: Click here.