Spousal Privacy Is Not Absolute: Madhya Pradesh High Court Rules Secretly Recorded Audio Evidence Admissible To Prove Adultery

"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." Madhya Pradesh High Court held that secretly recorded audio conversations and electronic evidence cannot be shut out on the ground of spousal privacy, ruling that the statutory exception under Section 122 of the Evidence Act overrides confidentiality claims in matrimonial litigation.

A single bench of Justice Dwarka Dhish Bansal observed that the right to privacy between spouses is not an absolute bar and cannot be applied horizontally to defeat a party's right to a fair trial and to prove allegations such as adultery. The Court set aside a Family Court order that had awarded monthly maintenance to a wife without comprehensively evaluating the electronic evidence produced by the husband.

The petitioner-husband challenged an order passed by the Principal Judge, Family Court, Chhatarpur, which had allowed the wife's application under Section 125 of the CrPC and granted her ₹6,000 as monthly maintenance. During the proceedings, the husband had taken a specific defense that the wife was living in adultery—a statutory bar under Section 125(4) CrPC—and sought to rely on a compact disc (CD) and a transcript containing telephonic conversations. Although the Family Court initially permitted secondary evidence, it subsequently declined to exhibit the material, relying on older precedents that treated secretly recorded conversations as violations of privacy.

The primary question before the High Court was whether secretly recorded electronic conversations between spouses are admissible as evidence in matrimonial proceedings. The Court was also called upon to determine whether the right to privacy under Article 21 of the Constitution operates as an absolute bar against the admissibility of such evidence, and whether the Family Court erred in ignoring the electronic material while adjudicating a maintenance claim.

Admissibility Of Secretly Obtained Evidence

The bench emphasized that the mere fact that a conversation was recorded without the knowledge or consent of a spouse does not render it inadmissible. Relying heavily on the Supreme Court's pronouncements in Vibhor Garg v. Neha and Himanshu Chordia v. State of Rajasthan, the Court reiterated that electronic evidence must satisfy the threefold test of relevance, identification, and accuracy.

"Relevant Conversation Cannot Be Shut Out"

The Court noted that the primary objective of the law of evidence is to break barriers rather than create them, ensuring that the judge gets a clear picture to resolve the dispute. "Before a court of law, 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," the bench observed.

Section 122 Evidence Act And Spousal Privilege

Analysing Section 122 of the Evidence Act, the Court clarified that while spousal communication is generally protected to foster intimate marital ties, the section explicitly carves out exceptions in suits between married persons. The statutory privilege yields to the right to a fair trial and the right to produce relevant evidence under Article 21 of the Constitution.

"Right To Privacy Cannot Be Applied Horizontally"

The bench emphatically ruled that Section 122 does not concern itself with a constitutional right to privacy vis-à-vis spouses, and such privacy doctrines cannot be applied horizontally to discard vital evidence. "When Section 122 itself recognises and protects spousal privacy in the first part of the section, then the said right has to be construed in terms of Section 122 only and has to be subject to the exception contained therein," the Court stated.

Procedural Lapses By Family Court

The High Court also flagged serious procedural irregularities by the Family Court, noting that it had permitted secondary evidence on 18 December 2017 without a formal application to take documents on record, and later arbitrarily shut out the evidence without assigning reasons in the order sheets. The bench held that discarding the CD and transcript based on the overruled Andhra Pradesh High Court view in Rayala M. Bhuvaneswari was legally unsustainable.

Final Directions And Remand Order

Partly allowing the criminal revision, the High Court set aside the impugned maintenance order and remanded the matter back to the Family Court for fresh adjudication. The Family Court was directed to restore the Section 125 CrPC application to its original number and evaluate the entire evidence, including the disputed CD and transcript, strictly in accordance with the law laid down by the Apex Court. The parties were directed to appear before the Family Court on 16 September 2026. Crucially, the High Court ordered that the husband shall continue to pay the interim maintenance of ₹6,000 per month as per the earlier order until the fresh decision is rendered.

Date of Decision: 13 August 2026