The Madras High Court in a recent order has observed that the fundamental right of privacy includes spousal privacy. The high court was dealing with a matrimonial dispute where a husband sought dissolution of marriage on the grounds of cruelty, adultery and desertion on wife's part and produced her call data record as evidence in court.

"Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible," the high court said.

The high court held the evidence as inadmissible in the court as it was obtained by invading the privacy of the partner. The court said that law could not permit or encourage snooping by one spouse on another. 

“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 high court said in its order.

The court further said that though some courts had relied on Section 14 of the Family Courts Act to rule in favor of the admissibility of evidence obtained in breach of privacy, there was no legislative validation of evidence obtained by violating the fundamental right to privacy.

Making a reference to the marital rape case in the top court, the high court order said: "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."

The court further observed that 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." 

The court added that Law cannot proceed on the premise that marital misconduct is the norm. It cannot permit or encourage snooping by one spouse on the other.