Privacy rights include spousal privacy as well: Madras High Court

Chennai: Privacy as a fundamental right includes spousal privacy as well and evidence obtained by invaliding this right is inadmissible, the Madurai Bench of the Madras High Court has held while dismissing a local court order that allowed the husband to examine himself as a witness and mark his wife’s call data record as an evidence in the divorce case filed by him.

Justice G R Swaminathan, in his 17-page order signed on October 30, made it clear that law cannot proceed on the premise that marital misconduct is the norm and that it cannot permit or encourage snooping by one spouse on the other.

“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 judge said.

“Law cannot proceed on the premise that marital misconduct is the norm. It cannot 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 added.

The order came on a civil revision petition filed by a woman against her estranged husband being allowed to examine himself as a witness and mark her call data records, which he obtained without her knowledge from a private mobile operator. The husband had filed a petition for dissolution of marriage in 2019 on the file of the sub-court, Paramakudi, on the grounds of cruelty, adultery, and desertion on his wife’s part.

Examining the issue at length since the case raised several issues of fundamental importance, justice Swaminathan named senior advocate Srinath Sridevan as amicus curiae. The court noted that since the husband had access to his wife’s mobile phone, he reached out to the service provider and obtained the call data.

“The certificate filed by the husband is no certificate at all…It is not the case of the husband that he wrote to the service provider and there was no response. The call history was downloaded from the Jio website. Therefore, only a person occupying a responsible official position in Jio could have issued the certificate,” the judge said.

The judge also observed that there has been a “clear invasion of the privacy right of the wife” as it is obvious that the husband had stealthily obtained the information pertaining to the call history of his wife. “He (the owner) 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,” justice Swaminathan added.

The judge, in his order, also said 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,” the judge added.