Evidence – Tape Recorded conversation between spouses – Admissible in evidence – violates right to privacy – But not admissible if recorded without knowledge of spouse – If admitted it would amount to violation of “right to privacy”.

The petitioner filed a divorce petition u/s. 13 of the Hindu Marriage Act, 1955 before the Family Court. In that application, the petitioner alleged that Respondent No. 2 – wife caused mental cruelty to him by different means.

The petitioner moved two applications on that very day. First application was filed for placing on record original cassette with a DVD. Second application was moved with the prayer that the original cassette and DVD be sent for FSL examination to determine their genuineness. The Family Court dismissed the application without seeking reply from the respondent.

The Hon’ble Court referred to section 122 of the Indian Evidence Act, 1872 and observed that:

The exception to privileged communication between husband and wife carved out in section 122 of Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in variety of situations, but if such communication is a tape recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence, as recording of such conversation had breached her `right to privacy’.

Husband cannot be, in the name of producing evidence, allowed to wash dirty linen openly in the court proceedings so as to malign the wife by producing clandestine recording of their conversation.

Thus, recorded conversation between the husband and the wife, even if true, cannot be admissible in evidence and the wife cannot be forced to undergo voice test and expert cannot be asked to compare CDs, which conversation had been denied by her.