Supreme Court: In an appeal against the judgment passed by the Punjab and Haryana High Court, where the High Court had ruled that recorded conversations between a husband and wife could not be the basis for deciding a petition under Section 13 of the Hindu Marriage Act, 1955 the Division Bench of BV Nagarathna* and Satish Chandra Sharma, JJ. held that the founding rationale for Section 122 of the Evidence Act, 1872 as acknowledged by the Law Commission and various High Courts, was to protect the sanctity of marriage rather than focusing on the right to privacy of the individuals involved. Consequently, the Court stated that the right to privacy is not a relevant consideration in situations where the privilege under Section 122 is not granted, such as in proceedings between spouses (an exception recognized in Section 122 itself).
The Court emphasised that spousal communications were deemed privileged under Section 122 for the purpose of protecting the sanctity of the marital relationship, and not for safeguarding individual privacy rights.
As a result, the Court set aside the impugned order of the High Court and restored the Family Court’s order. The Court directed the Family Court to accept the supplementary affidavit filed by the husband, which included evidence such as the memory card/chip of the mobile phones, compact disc (CD), and the transcript of the recorded conversations from the relevant period. The Family Court was instructed to consider this evidence in accordance with the law.
Background
The appellant-husband and respondent-wife were married on 20-02-2009, and a daughter was born on 11-05-2011. Due to marital discord, the husband filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, before the Family Court on 07-07-2017, which was later amended and refiled on 03-04-2018.
During the evidence stage, the husband submitted his affidavit of examination-in-chief on 07-12-2018. Subsequently, on 09-07-2019, he filed an application seeking permission to submit a supplementary affidavit along with memory cards, a CD, and transcripts of telephonic conversations recorded between November—December 2010 and August—December 2016. The wife opposed the application, questioning the admissibility of such electronic evidence and arguing that the examination-in-chief had already been completed.
On 29-01-2020, the Family Court allowed the husband’s application, holding that the recordings were relevant and admissible under Sections 14 and 20 of the Family Courts Act, 1984. The husband later tendered the transcript, original memory card, and CD as evidence on 18-02-2020.
Aggrieved, the wife filed a civil revision petition before the Punjab and Haryana High Court. The High Court issued notice and stayed the Family Court’s order. By its judgment the High Court allowed the revision petition and set aside the Family Court’s order. It held that the CD contained surreptitiously recorded conversations without the wife’s knowledge or consent, amounting to a violation of her right to privacy, which is part of the right to life under the Constitution.
The High Court, in their judgment, held that recorded conversations between a husband and wife could not form the basis for deciding a petition under Section 13 of the Hindu Marriage Act, 1955, as courts could not ascertain the context in which such statements were made. They held that recording such conversations without the other partner’s knowledge constituted a violation of the right to privacy. Relying on this reasoning, the High Court delivered the impugned judgment in favour of the wife. Aggrieved, the husband filed the present appeal.
Issue
Whether the High Court was justified in setting aside the order of the Family Court and thereby declining permission to the husband to corroborate his evidence in the form of what has been recorded on his mobile phone and by means of a compact disc (CD) and transcription of the same containing the communication made by the wife to the husband to prove his case for seeking divorce?
Analysis and Decision
The Court examined the scope of Section 122 of the Indian Evidence Act, which provides a rule of privilege protecting the disclosure of communications made between spouses during a valid marriage, subject to limited exceptions. Unlike Section 120, which concerns the competency of spouses to testify against each other, Section 122 focused on the admissibility of privileged communications.
The Court noted that Section 122 contains two distinct parts—one addressing compellability and the other permissibility, separated by a semi-colon and meant to be read disjunctively.
- The first part, on compellability, imposed a blanket bar on compelling a spouse to disclose any communication received from the other spouse during a valid marriage. This protected the right to marital privacy unconditionally.
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The second part, on permissibility, imposed an even stricter standard. Even if a spouse voluntarily wished to disclose such communication, the court could not admit it unless the other spouse (who made the communication) or their legal representative gave explicit consent. In effect, consent had to come from the communicator, not the recipient or the court.
This prohibition was subject to two exceptions:
- Proceedings between the spouses themselves.
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Criminal proceedings involving a crime committed by one spouse against the other.
The Court clarified that this privilege:
- Applied only to legally wedded spouses and not to live-in or other relationships.
- Attached at the time of communication, not when evidence was later offered in court.
- Survived even after the dissolution of marriage if the communication occurred during the subsistence of the marriage.
- Barred only the spouse who received the communication, not the one who made it.
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Did not bar third parties from testifying about communications they overheard or also received.
Further, the Court emphasised that the term “any communication” was broad, covering oral, written, or non-verbal (e.g., sign language) communications and not limited to confidential or private exchanges. However, the term “made to him/her” indicated that it must be a message conveyed by one spouse to the other, not a general dialogue or mutual conversation.
The Court clarified that the bar under Section 122 applied specifically to the disclosure of a “communication” by a spouse, and not to the communication itself. A spouse could neither be compelled nor permitted to enter the witness box to disclose such communications. However, the communication could still be brought before the court through other lawful means, as long as those means were not barred by Section 122 or other provisions of the Evidence Act. For instance, if a husband wrote a letter to his wife confessing to a murder, the wife would be barred under Section 122 from disclosing the content of that letter in court. However, if the letter was recovered by the police during investigation and produced in evidence, then Section 122 would not apply, and the letter could be admitted as evidence.
Furthermore, the Court clarified that the bar did not extend to acts witnessed or experienced by a spouse. For example, if a husband told his wife, “I killed Z,” she could not disclose that statement due to Section 122. But if she personally witnessed him committing the murder, she would be legally permitted to testify to that act, as actions observed are not protected by Section 122.
a) Whether a secretly recorded conversation can be permitted to be given in evidence?
The Court noted that it had previously addressed the issue of collecting evidence through illegal or morally questionable means, such as unauthorized recordings or phone tapping, often without the knowledge or consent of the person being recorded. Accused persons frequently argued that such evidence was inadmissible due to the investigative authorities not following proper legal procedures.
However, the Court held that the mere fact that evidence was obtained unlawfully did not automatically render it inadmissible. Instead, the admissibility of such evidence depended on its relevance, reliability, and accuracy. The Court emphasised that while it must approach such material with caution, illegality in procurement alone was not a sufficient ground to exclude evidence from consideration.
b) Whether in light of the Evidence Act and the F.C. Act, a conversation between spouses can be permitted to be given in evidence in a proceeding for divorce?
The Court reiterated that Section 122 of the Evidence Act comprises two parts: compellability and permissibility. In the present case, the issue revolved around the second part, i.e., the permissibility of disclosing privileged communication in court.
The Court held that under normal circumstances, the husband would be barred from disclosing any communication made to him by his wife during the subsistence of the marriage. However, in this case, the bar was lifted by the express exception provided under Section 122, since the communication was being disclosed in a proceeding between the spouses, a divorce petition filed under Section 13 of the Hindu Marriage Act, 1955. Therefore, the wife’s objection based on Section 122 was held to be unacceptable.
The Court further reasoned that while Section 122 bars the spouse from disclosing communication by standing in the witness box, it does not bar the use of the communication itself if it is brought before the court by other means. It likened the recording device (e.g., a mobile phone) to an eavesdropper, stating that such a device was not subject to the same privilege bar as a spouse. Moreover, since this was a case between the husband and wife, the exception under Section 122 applied, making communication admissible.
The Court also addressed Section 14 of the Family Courts Act, 1984, which allows Family Courts to accept evidence beyond the strict rules of the Evidence Act. However, it noted that this extraordinary power need not be invoked here, as the Evidence Act itself permitted the admission of such communication under its exception clause.
Responding to arguments that allowing such recordings might encourage snooping, thereby harming domestic harmony, the Court observed that snooping is a symptom, not the cause of a broken marriage. It clarified that once a marriage reaches the stage of secret recordings, the relationship is already fractured, and the court’s acceptance of such evidence does not further damage it. The Court held that while spousal communication is protected, the right to privacy under Section 122 is not absolute and must be interpreted in light of its own exceptions.
The Court emphasised that relevant conversations stored on electronic devices should not be excluded from consideration in legal proceedings when such material constitutes the best available evidence to resolve the dispute. It observed that while the original Evidence Act was enacted over a century ago and could not have anticipated the challenges posed by modern technology, its core objective was to facilitate the discovery of truth, not to impose rigid barriers.
The Court highlighted that the law of evidence is designed to aid judges in arriving at a just decision by relying not only on direct evidence but also on circumstantial evidence, presumptions, and adverse inferences. It stated that, in the digital age, technology enables the accurate recording and preservation of past events, and excluding such reliable material on the grounds of a privacy violation would defeat the purpose of the Evidence Act.
The Court further noted that this was precisely why Parliament amended the Evidence Act to include Section 65B, which explicitly addresses the admissibility of electronic records. Thus, electronically stored conversations, when authenticated in compliance with Section 65B, are not only relevant but also admissible, and their exclusion would undermine both legal reasoning and technological progress in the justice system.
c) Whether such a recorded evidence should be disallowed solely on the ground that it is violative of the privacy of one of the spouses?
The Court observed that Section 122 of the Evidence Act had not been challenged in the present proceedings. It reiterated that the protection of privileged communication between spouses under Section 122 exists in the context of preserving marital intimacy and trust.
However, the Court emphasised that the exception under Section 122, which allows such communication to be disclosed in proceedings between the spouses themselves, must be interpreted in light of the right to a fair trial, a core element of Article 21 of the Constitution of India.
Weighing the competing rights of the parties in a matrimonial trial, the Court held that there was no breach of the wife’s right to privacy in the present case. It clarified that Section 122 does not, in fact, recognize a right to privacy in the constitutional sense. Rather, it is a statutory privilege, subject to explicit exceptions.
Furthermore, the Court stated that Section 122 cannot be applied horizontally, i.e., it does not grant one spouse an enforceable right to privacy against the other in constitutional terms. The provision, being procedural in nature, was enacted to balance fairness in trials, not to safeguard privacy under Article 21.
The Court concluded that Section 122 supports the right to a fair trial, including:
- the right to present relevant evidence,
- the right to prove one’s case, and
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the right to seek judicial relief in matrimonial proceedings.
Hence, the disclosure of communication under the Section’s exception clause did not infringe any constitutional privacy rights in this case.
The Court reiterated the distinction between common law rights and fundamental rights. While their content might overlap, they are different in terms of enforcement. Common law rights impose duties primarily on private entities, whereas fundamental rights impose obligations on the State. This distinction allows similar obligations to be imposed on both, but the enforcement avenues are separate.
The Court then clarified that Section 122 of the Evidence Act does not address the right to privacy between spouses. It emphasised that the plain meaning of the section does not suggest any connection with privacy. Taking note of the 69th Report of the Law Commission of India (1977), the Court highlighted that Section 122 was designed to preserve the sanctity of marital communication, a trust not necessarily applicable to non-marital relationships.
Hence, the Court allowed secretly recorded spousal conversations as admissible evidence in matrimonial disputes, thereby setting aside the impugned order of the High Court and restoring the Family Court’s order.
[Vibhor Garg v. Neha, 2025 SCC OnLine SC 1421, decided on 14-07-2025]
*Judgment Authored by: Justice BV Nagarathna
Advocates who appeared in this case:
For Petitioner(s) : Mr. Ankit Swarup, AOR Mr. Neelmani Pant, Adv. Ms. Vidisha Swarup, Adv. Mr. Rishi Bhargava, Adv. Ms. Yashvi Aswani, Adv. Ms. Vrinda Grover, Adv, Amicus Curie Mr. Yash S.Vijay, AOR Ms. Devika Tulsiani, Adv. Mr. Soutim Banerjee, Adv.
For Respondent(s) : Mr. Gagan Gupta, Sr. Adv. Mr. Ananta Prasad Mishra, AOR
