The Madras High Court recently held that a citizen’s fundamental right to privacy also includes “spousal privacy” and that any evidence collected stealthily or through “snooping” by one spouse against another cannot be accepted under the law.

Justice GR Swaminathan of the Madurai bench set aside a lower court order that had refused to grant a woman’s prayer to reject phone call records that her estranged husband had procured without her consent and submitted as evidence during the trial in an adultery and desertion case.

“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," the order stated.

Speaking specifically on the autonomy of a woman in a relationship, the Court said,

"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 Court noted that in the present case, the estranged husband had procured the wife’s call records by making a request to the service provider and generating an OTP using her mobile phone without telling her. Such call records, accurate as they may be, cannot be admitted as evidence under the “regime of law,” the High Court held.

“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,” the High Court said.

It also highlighted that the courts had given conflicting decisions on whether evidence obtained through such means was admissible or inadmissible. Agreeing with the latter view, Justice Swaminathan held,

"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 Court also noted that the Bharatiya Sakshya Adhiniyam (BSA) 2023 requires that electronic records be accompanied by a certificate to establish their authenticity and authority. The Central government has yet to identify an adequate number of experts to grant such certificates of authenticity under Section 79A of the Information Technology Act, 2000.

It said that not a single expert had been appointed so far in the State of Tamil Nadu.

"It is surprising to note that no expert has been notified in the State of Tamil Nadu. It is beyond dispute that Tamil Nadu has good I.T infrastructure and skilled manpower. Since BSA has already come into force, very soon there will be need for certificates under Section 63(4) of BSA for securing admission of electronic records. If experts are not available in Tamil Nadu, that would result in denial of the right of access to justice which is a fundamental right," the Court said.

The Court accordingly directed the Union Ministry of Electronics and Information Technology to “expeditiously notify sufficient number of persons/bodies/entities as experts in the State of Tamil Nadu,” in accordance with Section 79A.

Advocate D Senthil appeared for the appellant wife.

Advocate J Senthil Kumaraiah appeared for the respondent husband.

Deputy Solicitor General K Govindarajan appeared for the Union government.

Senior Advocate Srinath Sridevan was amicus curiae in the matter.

[Read Order]