[Answered] An SC ruling allowing covert evidence in matrimonial disputes raises privacy concerns. Analyze its implications for the Right to Privacy, judicial principles, and ensuring gender justice in sensitive marital issues like marital rape.

Introduction

The Supreme Court’s ruling permitting covert recordings as evidence in matrimonial disputes reshapes the boundaries of privacy, evidentiary norms, and gender justice—especially in sensitive cases like marital rape.

Judicial Recognition of Covert Evidence

1. In ABC v. XYZ (2024), the SC upheld admissibility of secretly recorded conversations between spouses, overturning the Punjab & Haryana HC’s 2021 verdict.
2. The Court ruled that such recordings are not barred under spousal privilege (Section 122, Indian Evidence Act), particularly in disputes between spouses.
3. Rationale: Right to a fair trial includes the ability to present relevant evidence, even if covertly obtained.

Right to Privacy: A Conflicted Interpretation

1. In K.S. Puttaswamy v. Union of India (2017), the SC recognized privacy as a fundamental right under Article 21.
2. However, the current judgment holds that the right to privacy does not apply between spouses, claiming it is enforceable only against the state.
3. This vertical vs horizontal application distinction contradicts evolving jurisprudence that recognizes privacy even in intimate private spheres.

Implications for Marital Rape Discourse

1. Marital rape is not criminalized in India (Exception 2 to Section 375 IPC), despite growing national and international advocacy.
2. A key challenge in prosecuting marital rape, if criminalized, is proving consent or lack thereof—here, covert evidence could become critical.
3. However, such recordings could both empower victims and also risk misuse in deeply unequal relationships.

Gendered Digital Divide and Technology Access

1. According to the GSMA Mobile Gender Gap Report 2023, only 67% of Indian women own a mobile phone vs 82% of men.
2. In rural areas, the gap is wider. Hence, covert evidence may disproportionately benefit digitally empowered spouses—often men—undermining fair adjudication.
3. Trial courts must assess not just admissibility, but context, voluntariness, and power asymmetry in collecting such evidence.

Balancing Evidentiary Fairness and Ethical Concerns

1. The Court likened a recording device to an eavesdropper—raising ethical and legal questions about consent and surveillance within marriage.
2. This opens Pandora’s box: can spouses install CCTV, GPS trackers, spyware citing evidentiary need?
3. Without safeguards, such measures could become tools of control and coercion, especially in abusive marriages.

Needed Legal and Policy Safeguards

1. Codify evidentiary thresholds for covert material in matrimonial and criminal cases—akin to how sting operations are handled under media law.
2. Revise Indian Evidence Act to clarify boundaries of spousal privilege, privacy, and consent in the digital era.
3. Train family courts in technology-enabled justice delivery with gender sensitivity.

Conclusion

The SC’s ruling expands evidentiary options but blurs privacy protections. Balancing judicial fairness with ethical safeguards and gender justice is imperative, especially as India debates criminalizing marital rape.