Supreme Court : Secretly Recorded Calls Between Spouses Are Admissible In Divorce Cases | Section 122 Evidence Act Does Not Bar Disclosure In Matrimonial Suits | Right To Fair Trial Outweighs Spousal Privacy Objection
Kiran Raj
The Supreme Court of India Division Bench of Justice B.V. Nagarathna and Justice Satish Chandra Sharma held that a party to matrimonial litigation may produce covertly recorded conversations with their spouse as admissible evidence in proceedings for divorce. The Court set aside a High Court judgment that had disallowed such recordings on the grounds of privacy infringement. It allowed the appellant-husband to file a supplementary affidavit containing recorded telephonic conversations, digital storage devices, and their transcripts, ruling that the exception under Section 122 of the Indian Evidence Act applied to suits between spouses. The Court clarified that while the right to privacy within marriage is recognised, the specific legal exception permitting disclosure in matrimonial disputes must prevail. The matter was remanded to the Family Court for further proceedings based on the admissibility and evidentiary value of the materials submitted
The matter arose from a matrimonial dispute between a husband and wife, who were married on 20 February 2009. A daughter was born to them on 11 May 2011. Due to increasing discord, the husband filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, in the Family Court at Bathinda on 7 July 2017. The petition was subsequently amended on 3 April 2018.
During the pendency of the divorce proceedings, the husband submitted his examination-in-chief by affidavit on 7 December 2018. Subsequently, on 9 July 2019, he sought permission to file a supplementary affidavit that included memory cards, compact discs (CDs), and transcripts of telephonic conversations recorded between him and his wife during the periods of November–December 2010 and August–December 2016. The husband argued that the contents of these recordings were relevant to substantiate allegations in the divorce petition.
The wife opposed this application, citing procedural grounds that the examination-in-chief had been completed and further objected on legal grounds, arguing that the evidence amounted to a violation of her privacy. She further asserted that electronic records such as memory cards, CDs, and transcripts could not be admitted without proper authentication and raised concerns over the admissibility of the material.
On 29 January 2020, the Principal Judge of the Family Court at Bathinda allowed the husband’s application. The Family Court observed that the recordings were limited to conversations between the parties and not involving third parties. It relied on Section 14 and Section 20 of the Family Courts Act, 1984, which empower the court to receive any evidence deemed helpful for resolving matrimonial disputes, overriding general evidentiary rules.
The wife challenged this order by filing a civil revision petition before the High Court of Punjab and Haryana (CR No. 1616 of 2020). On 5 March 2020, the High Court issued an interim stay on the Family Court’s order. Ultimately, on 12 November 2021, the High Court allowed the wife’s revision petition, stating that the recordings were obtained surreptitiously and violated her right to privacy under Article 21 of the Constitution.
The High Court cited decisions including Rayala M. Bhuvaneswari v. Nagaphanender Rayala, Tripat Deep Singh v. Paviter Kaur, and Deepinder Singh Mann v. Ranjit Kaur, holding that recording a spouse’s private conversation without consent amounted to a breach of privacy and could not be admitted in evidence even in matrimonial cases.
Aggrieved by this decision, the husband filed a civil appeal before the Supreme Court. On 12 January 2022, the Supreme Court issued notice and granted interim stay of the proceedings in the Family Court. On 3 December 2024, the Court directed the continuation of evidence of PW-1, with the recordings and cross-examinations to be kept in sealed cover. On 19 December 2024, Ms. Vrinda Grover was appointed as amicus curiae.
The husband argued that in matrimonial proceedings, covertly obtained recordings might be the only means to prove private communications, particularly in cases of alleged cruelty. He relied on exceptions provided under Section 122 of the Indian Evidence Act and provisions of the Family Courts Act. The husband also referred to High Court decisions that admitted such recordings and to Law Commission recommendations supporting an amendment of Section 122 to reflect modern realities.
The wife, in her submissions, opposed the admissibility of the recordings, reiterating the breach of privacy and lack of consent. She contended that these conversations had no foundation in pleadings and alleged manipulation. She questioned the delayed submission of the evidence and expressed apprehension that the court would be unable to determine the context and authenticity of the recordings, even if cross-examined or sent for forensic examination.
The amicus curiae presented submissions on the intersection of spousal privacy, admissibility under Section 122 of the Evidence Act, and Sections 14 and 20 of the Family Courts Act. She acknowledged the absence of a legal bar on covert recordings but stressed the need for judicial discretion and safeguards to prevent misuse.
The Court examined the scope and exceptions under Section 122 of the Evidence Act. It stated:
“Section 122 of the Evidence Act is worded in two parts – one, dealing with ‘compellability’ and the other, dealing with ‘permissibility’. These two parts are separated by a semi-colon, which shows that the two parts are separate and have to be read disjunctively.”
The Court further stated: “The second part deals with ‘permissibility’. This is an even greater restriction than the first part. Here, even if one of the spouses is willing to disclose the communication made to him/her, the Court still cannot permit it to be taken as evidence, unless the other spouse who made that communication, or their representative-in-interest, consents to the disclosure of such communication.”
However, the Court underscored the exception: “The second part, relating to ‘permissibility’, is then followed by two exceptions which are – (a) proceedings in suits between married persons, (b) proceedings in which one married person is prosecuted for any crime committed against each other. Therefore, it means that in these two given scenarios, the requirement of taking consent from the other spouse before being permitted to disclose the communication is done away with.”
Relying on M.C. Verghese v. T.J. Ponnan and Ram Bharosey v. State of U.P., the Court stated: “The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in light of the status on the date and not the status at the date when evidence is sought to be given in court.”
Addressing privacy concerns, the Court noted: “If the marriage has reached a stage where spouses are actively snooping on each other, that is in itself a symptom of a broken relationship and denotes a lack of trust between them. The said snooping cannot be said to be a consequence of the Court admitting the evidence obtained by snooping.”
The Court further recorded: “A relevant piece of conversation available on an electronic device should not be allowed to be shut out when it is the best evidence available for deciding the dispute.”
On the applicability of Section 14 of the Family Courts Act, the Court stated: “We do not think that adverting to Section 14 of the F.C. Act is required in the present facts when the Evidence Act itself permits such a communication to be admitted in evidence by way of an exception.”
Discussing electronic evidence, the Court relied on Yusufalli Nagree and R.M. Malkani, stating: “The three-fold test of relevance, identification and accuracy has to be satisfied before a Court admits a recorded conversation in evidence.”
On the use of Section 65B of the Evidence Act, the Court stated: “Section 65B of the Evidence Act speaks of the admissibility of the electronic records. The contents of electronic records may be proved in accordance with the provisions of Section 65B.”
Concluding on privacy, the Court clarified: “The right to privacy between spouses, as recognised by Section 122, has to be construed in terms of the Section itself and subject to the exception contained therein.”
The Supreme Court allowed the civil appeal filed by the appellant-husband and set aside the judgment dated 12 November 2021 passed by the High Court of Punjab and Haryana in CR No. 1616 of 2020.
The Court held: “The Family Court was right in allowing the application filed by the appellant-husband seeking permission to place on record the memory cards/chips, compact disc and transcript of the conversations. The same shall be considered during the course of trial for the purpose of adjudicating the petition filed under Section 13 of the Hindu Marriage Act.”
The Bench further directed that: “The recordings and transcripts submitted shall be subject to proof and verification during evidence and cross-examination in accordance with law. The admissibility shall also be tested in light of Section 65B of the Indian Evidence Act.”
The Court remanded the matter to the Family Court at Bathinda and directed that the trial proceed with due regard to the material placed on record by the appellant. It also ordered that the proceedings continue in-camera to protect the privacy of the parties, and that the transcription of the evidence be preserved in a sealed cover.
The judgment further acknowledged that the Family Court could take into consideration the supplementary affidavit and the electronic materials submitted, without invoking Section 14 of the Family Courts Act, as the admissibility is already permitted under the exceptions of Section 122 of the Indian Evidence Act.
Case Title: Vibhor Garg v. Neha
Neutral Citation: 2025 INSC 829
Case Number: Civil Appeal arising out of SLP (Civil) No. 21195 of 2021
Bench: Justice B.V. Nagarathna and Justice Satish Chandra Sharma
