Secretly Recorded Conversations Between Spouses Admissible In Divorce Proceedings: Supreme Court

Spousal Privilege Under Section 122 Cannot Be Invoked in Divorce Proceedings Between Spouses”: On 14th July 2025, the Supreme Court of Indiadelivered a landmark ruling settling the debate over the admissibility of secretly recorded spousal conversations in divorce proceedings. The Court, through a Bench of Justice B.V. Nagarathna and Justice Satish Chandra Sharma, restored the order of the Family Court and reversed the Punjab & Haryana High Court’s decision, holding that such electronic recordings are admissible evidence in matrimonial litigation and do not violate the right to privacy under Article 21 of the Constitution.

The Supreme Court decisively observed,“When Section 122 itself creates an exception for litigation between spouses, privacy rights must yield to the right to fair trial within the four corners of the Evidence

The dispute arose out of divorce proceedings initiated by the appellant-husband Vibhor Garg against his wife Neha under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Bathinda. The appellant sought to submit supplementary evidence comprising secretly recorded phone conversations between the couple, stored in memory cards and compact discs, recorded between 2010 and 2016.

While the Family Court allowed the supplementary affidavit and recordings, relying on Sections 14 and 20 of the Family Courts Act, 1984, the High Court overturned this order citing violation of the respondent-wife’s right to privacy. The High Court concluded that such recordings were inadmissible, labelling them as unconstitutional under Article 21.

Challenging this, the appellant approached the Supreme Court, resulting in the current judgment which clarified key aspects of matrimonial law, spousal privilege, privacy, and evidentiary rules.

Legal Issues and Supreme Court’s Analysis

The Supreme Court framed the following primary issues for consideration: whether secretly recorded conversations between spouses can be admitted in matrimonial proceedings, whether Section 122 of the Evidence Act protects such communications, and whether the right to privacy under Article 21 can be invoked to exclude such evidence.

In a significant clarification on spousal privilege, the Court ruled that,

“Section 122 of the Evidence Act establishes a clear privilege on spousal communications, but it contains an express exception — ‘except in suits between married persons,’ which squarely covers matrimonial proceedings such as divorce.” [Paragraph 8.1]

Referring to the seminal judgment in M.C. Verghese vs. T.J. Ponnan (1969), the Court reiterated that,

“The bar to admissibility attaches at the time when the communication is made, but where litigation is between the spouses themselves, the privilege ceases to apply.”

The Court underscored that Section 122 bifurcates the law into two distinct parts: one concerning ‘compellability’ and another on ‘permissibility’, with both becoming inapplicable in suits between married persons.

Analysis on Right to Privacy under Article 21

The Supreme Court tackled the respondent’s argument regarding the right to privacy by holding that,

“The right to privacy is a common law right that may also have constitutional status under Article 21, but it is not absolute, and cannot override specific statutory exceptions provided under the Evidence Act.” [Paragraph 11.3]

The Court drew extensively from the Constitution Bench judgment in K.S. Puttaswamy vs. Union of India (2017) but clarified the distinction between common law privacy rights and constitutional rights.

The Court made it clear that,“When Section 122 itself does not recognise any privacy bar in suits between spouses, there is no basis to invoke a fundamental right under Article 21 to frustrate the statutory scheme. To do so would be to subordinate the right to fair trial to a misconceived extension of privacy.” [Paragraph 12]

The Bench applied the doctrine of proportionality and ruled that in disputes where the entire subject matter concerns private interactions between spouses, admitting such evidence is indispensable for the adjudication of truth.

Admissibility of Electronic Evidence

Dealing with the admissibility of electronic records, the Supreme Court invoked Sections 65A and 65B of the Indian Evidence Act and the precedents laid down in R.M. Malkani vs. State of Maharashtra (1973) and Yusufalli Esmail Nagree vs. State of Maharashtra (1968), stating,

“Illegality in the mode of collection of evidence does not ipso facto render it inadmissible. The Court must ascertain relevance, identify the voices, and verify authenticity under Section 65B, but privacy concerns do not bar such evidence.” [Paragraph 9.4]

Rejecting the High Court’s stance that secretly recording a spouse constitutes an automatic breach of privacy, the Court declared,

“When the parties have approached the Court for a divorce, conversations revealing the nature of their relationship become necessary elements of proof and cannot be shut out citing privacy.” [Paragraph 10.5]

Balancing Rights: Fair Trial vs Privacy

The Court observed that privacy serves the sanctity of marriage, but in divorce proceedings the sanctity itself is in question. It recorded,

“Where trust has already broken down between spouses and litigation is underway, the exclusion of crucial evidence on privacy grounds would defeat justice. Privacy cannot be a shield against truth in the courtroom.” [Paragraph 10.3]

The Court concluded by holding,

“We cannot permit the right to privacy to be transformed into a right to withhold material evidence in adversarial litigation. Such an interpretation would defeat the principles of fair adjudication.” [Paragraph 12.1]

Setting aside the High Court’s order dated 12.11.2021, the Supreme Court restored the Family Court’s order dated 29.01.2020, allowing the husband to introduce the supplementary affidavit along with the recordings and transcripts.

Directing the Family Court to consider the evidence in accordance with law, the Court stated,“Parties are free to cross-examine on the material and the Court is to decide the weight of evidence, but there is no bar to its admissibility.” [Paragraph 13]

The Supreme Court thus concluded,“The appeal stands allowed. The right to privacy of a spouse is subject to the exceptions of the Evidence Act, and the right to fair trial remains paramount in matrimonial disputes.”

The judgment settles a crucial legal position, offering clarity to Family Courts across the country on balancing privacy, spousal privilege, and fair trial rights.

Date of Decision:14th July 2025