Parent's Private Chats Showing Drug Use Relevant To Child's Custody Case, Can't Be Excluded On Grounds Of Privacy: Madras High Court

Justice AD Maria Clete observed that the welfare of the child was paramount and a matter of public concern, and thus such materials should not be excluded merely because they originated in a private communication.

“The issue is not a contest between the father's personal privacy and the mother's desire to produce evidence. Privacy protects the wider social interest in secure communication and freedom from indiscriminate intrusion. The safety and welfare of a child are likewise matters of public concern. Material allegedly showing drug use, procurement of narcotic substances, or association with persons involved in such activity may bear directly on parental fitness and the child's safety, and cannot be excluded merely because it originated in a private communication,” the court said.

The court added that judicial use of such materials would not take away their private nature. The court observed that the privacy of the material could still be preserved by confining the material to deciding the custody proceedings, examining its confidentiality, protecting third-party related information, preventing publication, and insisting on proof of source, authenticity, and context.

The court was hearing an application filed by a mother seeking permission of the court to take on record documents filed by her in the guardianship plea, which would show the father's alleged involvement with drugs and his alleged relationship with another woman. The father had originally filed the guardianship plea to appoint him as the permanent guardian of the minor child and to seek permanent custody of the child.

The mother opposed the plea and submitted that the father was unfit to be entrusted with the custody of the child due to his drug and alcohol use. The mother submitted that in 2020, while the father was sleeping, she had seen messages on his mobile phone and taken photos of it using her phone. The mother submitted that the materials would show a conversation about the possible purchase of drugs, another drug-related conversation, searches relating to narcotic substances, and materials concerning an alleged relationship with another woman.

The father denied the allegations and disputed the source, authorship, authenticity, and contents.

The court noted that when the materials were sought to be marked before the Master court, the Master declined to do so on the ground that the same concerned the personal liberty and privacy of a third party and relied on an earlier order of the High Court. The mother had thus approached the High Court seeking permission to mark the documents.

The court observed that privacy was not merely an attribute of the individual but also an attribute of free society. The court noted that it should identify the social interest protected by privacy and the societal interest said to justify the use of private material. In the present case, the court noted that the welfare of the child was paramount and any material which had a real and direct bearing on it, could be received.

“The welfare of the child is the paramount consideration. It includes not only physical comfort and financial support, but also safety, emotional security, moral welfare and the environment in which the child may be placed. Material having a real and direct bearing on those matters may therefore be received,” the court said.

The court, however, made it clear that not every private communication of a parent becomes relevant only because custody is in issue. The court observed that there should be a rational connection between the material and the child's welfare and no material should be introduced only to embarrass a party, damage reputation or widen the matrimonial dispute.

The court thus permitted marking of the documents produced by the mother and added that the authenticity of the materials would have to be established. The court also added that the father would be entitled to cross-examine the mother and raise all objections. The court also made it clear that the materials would be received solely for guardianship proceedings.

Counsel for Petitioner: M/s. G.R. Associates Niranjan Rajagopalan Sowjanaya S

Counsel for Respondents: Mr. Rahul Jagannathan

Case Title: M v B

Citation: 2026 LiveLaw (Mad) 324

Case No: A No. 6478 of 2024 in O.P. No. 786 of 2023