Introduction
How wise is it to cherish the fruits of a poisoned tree? This question has been discussed in several criminal procedure and evidence-related cases in the past years. There have been numerous instances where incriminating evidence has been produced, yet it is not admitted because it was obtained illegally. The law, prima facie at least, appears to conform with the “fruits of the poisoned tree” doctrine and tainted evidence is usually not admitted, be it a case of police brutality or violation of the due process of law to obtain necessary evidence or confession to put anyone behind bars.
However, a very peculiar exception to this general rule is emerging in the family courts where the spouse is allowed, if not encouraged, to obtain evidence by whatever means necessary. In this light, the authors argue that admitting evidence obtained through cyber-stalking encourages violation of the fundamental rights of the spouse and, therefore, must not be permitted.
Collection of Evidence or Breach of Privacy?
Surveillance or snooping on the digital activities of the spouse is often used not only to track and curtail the movements of the target spouse but also to collect evidence that can be produced in courts. Currently, there are technological means available that give access to the social media accounts, call records, email communications, and other digital footprints of a person.
When it comes to matrimonial cases, the courts grant relief on various grounds such as cruelty and adultery. Direct evidence of an adulterous relationship is tough to obtain. In such cases, tracking technologies/apps become a useful tool for gathering circumstantial evidence. Call records, WhatsApp messages, emails, social media accounts, and other digital footprints provide crucial information about one’s engagement and interaction with others. The use of technologies which help in tracking personal engagement becomes an important concern since it has been held by several courts that, given the rarity of direct evidence of adultery, circumstantial evidence would be enough to establish liability.
Furthermore, it is important to note that Section 14 of the Family Courts Act, 1984 (“FCA”) grants the Family Courts the power to deviate from the strict rigours of the India Evidence Act, 1872 (“IEA”). However, this does not mean that the IEA prohibits using improperly or illegally obtained evidence. Consequently, Indian courts have admitted such evidence in both civil and criminal matters. Moreover, academic discussion on the constitutionality of the using illegally obtained evidence has been mostly restricted to criminal cases. This discussion has gained momentum following the Puttaswamy judgment.
A recent petition (Sachin Arora v. Manju Arora), currently pending before a Constitutional Bench of the Supreme Court, highlights this dilemma between the right to privacy and admissibility of evidence. In this case, the aggrieved wife sought to prove adultery using call records and CCTV footage from the hotel where her husband and the alleged paramour stayed. The husband challenged the admission of this evidence on the grounds of breach of privacy. The decision in this case will be a guiding light to delineate the boundaries of right to privacy of individuals and duty to obtain evidence.
In Pooran Mal v. Director of Inspection of Income Tax, the court held that there is no statutory or constitutional prohibition on admitting illegally obtained evidence. Nonetheless, individuals have challenged the admission of taped conversations, call records and similar evidence, on grounds of violation of privacy. However, courts have dismissed the challenge stating that the right to privacy is not absolute and is subjected to reasonable restrictions. While it is acknowledged that the right to privacy can be restricted, these restrictions ought to be reasonable and proportionate, as emphasised in People’s Union of Civil Liberties v. Union of India, where the court based its reasoning on the premise that telephone tapping violates right to privacy.
In another case (X v. Y), the Punjab and Haryana High Court delved into the procedural differences in the FCA and the IEA concerning the admissibility of evidence. The Court made an important observation that while exercising discretion, it is incumbent upon the Family Court to ensure that admitting such material as evidence should not be violative of the fundamental principles of the Indian legal system. With this judgement, the Court has recognized the fact that there are some restrictions on the powers of Family Courts, however, it has not defined these restrictions, instead vaguely referring to “basic principles of our legal system” as the threshold for admitting evidence.
The issue of whether a husband can bug his wife’s phone to gather evidence against her was addressed in the case of Rayala M. Bhuvaneswari v. Nagaphanender Rayala. In this case, without the knowledge of the wife, her husband had been recording her phone conversations with her parents and friends in India. the court noted that such intrusion undermines matrimonial trust and breaches privacy. The court thus concluded that if a spouse resorts to unlawful, immoral, and unconstitutional means to gather evidence, he cannot be allowed to use that evidence in a court of law.
Conclusion and Suggestions
The authors contend that the use of modern technology to spy over one’s spouse must not receive positive sanction from the state and courts through the admission of such evidence. Any allowance of such nature would imply an endorsement of violation of the sacrosanct right to privacy of each individual regardless of his or her marital status. It is much required that the autonomy and privacy of the individual is not sacrificed at the altar of matrimonial dispute.
The relevant statutes, in this case, the FCA and IEA, should incorporate safeguards to protect the right to privacy. The 94th Report of the Law Commission had also advocated a similar approach by proposing the incorporation of Section 166A into the IEA, well before the recognition of the right to privacy as a fundamental right in the Puttaswamy (9-judges) judgment.
The authors recommend a suitable amendment to the contested provision of the FCA which does not, albeit indirectly, encourage a violation of the right to privacy by admitting such illegally obtained evidence. Such evidence not only violates statutory law on cyberstalking under Section 354D of the Indian Penal Code, 1860, but also infringes upon fundamental rights under the Constitution.
The recommendations put forth in the 94th Law Commission Report become even more pertinent in the current context of divorce and matrimonial laws in India due to two main reasons: firstly, after the pronouncement of Puttaswamy judgement, the right to privacy is now a fundamental right in India. If the “procedure established by law” permits the admission of evidence obtained illegally, such as through spousal cyberstalking, it would denigrate this fundamental right. Secondly, the exercise of judicial discretion in determining the fairness, reasonableness, and proportionality of such illegally obtained evidence has resulted in various conflicting decisions which have muddied the position of law in this regard.
Therefore, it is imperative that the provision under FCA which allows deviation from the rigours of IEA be re-looked at as the provision may result in the breach of privacy. Additionally, given the conflicting judgments on the admission of such evidence, a decisive ruling, mapping the contours of the power conferred upon family courts, is much required.
This article is a part of the DNLU-SLJ (Online) series, for submissions click here.
Students, National Law University, Jodhpur
