New Delhi: The Supreme Court has in a significant ruling held that secretly recorded conversations between spouses are admissible as evidence in matrimonial proceedings and therefore, are not an infringement of privacy.
The top court observed that when one spouse records the other without their knowledge, it is an indication that the marriage is already strained or breaking down. Consequently, such recordings can be used during judicial proceedings involving matrimonial disputes.
The bench, comprising Justices B.V. Nagarathna and Satish Chandra Sharma was hearing a Special Leave Petition (SLP) challenging an 2021 order by the Punjab and Haryana High Court, which had earlier ruled that secret recordings made by a man of his wife’s telephonic conversations constituted a violation of her fundamental right to privacy and were therefore inadmissible in court.
The High Court had relied on Section 122 of the Indian Evidence Act, 1872, to support its reasoning, asserting that the statute protects confidential marital communications. However, the Supreme Court held that there is an exception to this provision that states that for a judicial proceeding, the court can admit any kind of evidence.
In 2017, a Bathinda family court had allowed the husband to rely on a compact disc containing phone recordings with his wife to substantiate allegations of mental cruelty under Section 13 of the Hindu Marriage Act, 1955, related to divorce proceedings.
Reversing the High Court’s decision, the Supreme Court reinstated the order of the family court and directed it to continue proceedings while considering the recorded conversations as evidence. The top court emphasised that the act of “snooping” itself was evidence of a deteriorating marriage and thus could not be ignored during legal proceedings.
Legal debate around Sec 122 of the Indian Evidence Act
Section 122 of the Indian Evidence Act deals with spousal confidentiality and communication between spouses. It prohibits a person from being compelled to disclose any communication made during marriage by their spouse.
However, the provision includes an important exception—it does not apply in legal proceedings between spouses or in cases where either one of them is prosecuted for an offence against the other. The Supreme Court emphasized this exception, asserting that it must be interpreted in harmony with the constitutional guarantee of a fair trial under Article 21.
Explaining the essence of the exception, the court said, “the requirement of taking consent from other spouse before disclosing the communication is done away with. Therefore, the exception has been carved out in Section 122 of the Evidence Act itself to state that such privilege between spousal communication does not extend to a case of litigation between the spouses themselves.”
Justice Nagarathna clarified that Section 122 does not create or protect a fundamental right to privacy in the constitutional sense. Instead, it merely limits the compulsion to disclose communications made during marriage, except when the parties are litigating against each other. In such scenarios, the exception allows for the disclosure of relevant evidence, including secretly recorded conversations, to help the court uncover the truth.
“Section 122 does not concern itself with right to privacy vis-à-vis spouses which is evident on a reading of the Section and on discerning its plain meaning,” the court said.
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Context & case background
The case arose from divorce proceedings in the Bathinda family court, where the husband had accused his wife of cruelty and submitted a CD containing secretly recorded their phone calls without consent and knowledge of the wife. He argued that the conversations were crucial to establish his claims, as instances of mental cruelty often occur behind closed doors without witnesses or documentary proof.
The wife challenged the admissibility of the recordings in the Punjab and Haryana High Court. Justice Lisa Gill, ruling in her favour, held that admitting such secretly recorded conversations would amount to a breach of her fundamental right to privacy. The HC emphasized that such recordings were made without the wife’s knowledge or consent, which rendered them legally impermissible.
It further noted that courts would be ill-equipped to determine the context in which the conversations were held. Even with cross-examination, it would be difficult to ascertain the intent, tone, or emotional circumstances in which the statements were made. The HC concluded that relying on such recordings would be both unfair and contrary to established legal principles.
What SC said about privacy concerns
Justice Nagarathna firmly rejected the HC’s reasoning as she observed that if a marriage has reached a point where spouses are secretly recording one another, that alone signifies a lack of trust and a deep rupture in the relationship. In such circumstances, any argument that privacy must be protected to preserve marital harmony is unsustainable, as the harmony is already absent.
The 66-page judgement read, “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. In fact, snooping between partners is an effect and not a cause of marital disharmony.”
The SC also emphasised that the right to privacy is not absolute. It must be balanced against other legal rights and principles, such as the right to a fair trial. In matrimonial disputes, the ability to present relevant evidence—even if recorded secretly—becomes essential when other forms of proof are unavailable.
“When we weigh the respective rights of the parties in a trial within the parameters of Section 122, we do not think that there is any breach of right to privacy in the instant case…we reiterate that as per procedure established by law, Section 122 does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution, let alone invade upon such right. The reason is because Section 122 recognises the right to a fair trial, right to produce relevant evidence and a right to prove one’s case against a spouse so as to avail the relief sought for by a partys,” it said.
Diverging judicial opinions
The HC had relied on previous decisions such as Deepinder Singh Mann v. Ranjit Kaur and Smt. Rayala M. Bhuvaneswari v. Napaphander Rayala. In the Rayala case, the Andhra Pradesh High Court held that secretly recording a spouse’s conversation was both unethical and illegal, and therefore, inadmissible as evidence.
Similarly, in Deepinder Singh Mann, the Punjab and Haryana High Court expressed concern that permitting such recordings would turn marital homes into zones of surveillance, eroding trust and encouraging suspicion.
The petitioner also invoked Sections 14 and 20 of the Family Courts Act, 1984. These provisions empower family courts to accept evidence that may not be admissible under the strict rules of the Indian Evidence Act, provided that it aids the court in ascertaining the truth and ensures a fair trial.
Section 14 allows family courts to receive any document or material, whether or not it would be admissible under the Evidence Act, if the courts believe it will assist in resolving the dispute. Section 20 supplements this by giving an overriding effect to the 1984 Act in case of conflict with any other law.
The SC found these provisions particularly relevant, reinforcing the view that procedural restrictions must not hinder the court from doing substantive justice.
“…if the family court is of the opinion that it is expedient to go beyond the procedural technicalities of the Evidence Act for adjudicating the dispute, in such a case, the family court is allowed to take that evidence on record, notwithstanding what is stated in the Evidence Act,” it said.
Landmark judgement & implications
The ruling sets an important precedent for how evidence is treated in matrimonial disputes going forward. It reinforces that courts must adapt to the technological realities of modern relationships, where electronic communication and surveillance are being increasingly relied upon as crucial evidence in matriominal cases.
By recognising that secretly recorded conversations can be legitimate evidence, the court has expanded the evidentiary toolkit available to litigants, especially in cases where divorce is sought on the grounds of mental cruelty that would otherwise be difficult to establish.
However, the court also cautioned that such evidence must be scrutinized for authenticity and reliability before it is admitted. It said the court, while appreciating such evidence, may have to tread with caution and be assured about the accuracy and reliability of such evidence, giving discretion to the trial courts to lead evidence to determine the electronic communication’s authencity.
While the right to privacy remains a vital constitutional guarantee, it cannot be wielded as a blanket shield to exclude all evidence in matrimonial disputes, particularly when the recordings reveal critical facts relevant to the case.
The judgment underlines that where trust has broken down and litigation begun, the court’s foremost obligation is to uncover the truth and render justice. In doing so, it has laid down a nuanced interpretation of Section 122 of the Evidence Act, clarified its interaction with Article 21, and reaffirmed the evolving role of evidence in family law disputes.
This is an updated version of the article.
(Edited by Gitanjali Das)
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