In a landmark decision the Supreme Court of India held that secretly recorded telephonic conversations between spouses are admissible as evidence in matrimonial disputes, overturning a previous ruling of the Punjab & Haryana High Court.
A bench of Justice BV Nagarathna and Justice Satish Chandra Sharma ruled that such recordings can be used in divorce cases, especially when allegations like mental cruelty are involved. The judgment emphasized the importance of a fair trial, which is a constitutional right under Article 21, and highlighted that this right must be balanced against the right to privacy.
“Exception under Section 122 has to be construed in light of the right to a fair trial, which is also an aspect of Article 21 of the Constitution,” the Court stated.
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The High Court had earlier ruled that recording a wife's phone conversation without her consent violated her fundamental right to privacy and was therefore inadmissible. However, the Supreme Court clarified that Section 122 of the Indian Evidence Act, which bars disclosure of marital communications, includes an exception for legal proceedings between spouses.
“We do not think there is any breach of privacy in this case. In fact, Section 122 of Evidence Act does not recognise any such right… It does recognise right to a fair trial, right to produce relevant evidence, and right to prove one’s case against the spouse,” observed Justice Nagarathna.
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The bench rejected concerns that allowing such evidence would promote domestic surveillance.
“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,” the Court added.
Case Background
The dispute arose in a divorce case under Section 13 of the Hindu Marriage Act, 1955, where the husband presented a CD containing phone recordings of his wife to support his claims of cruelty. While the Family Court at Bathinda admitted this evidence, the wife challenged the decision in the High Court.
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Justice Lisa Gill of the Punjab & Haryana High Court ruled in the wife’s favor, stating that conversations were recorded without consent and in a manner that lacked context and clarity. The court expressed concerns about unfairness and privacy infringement.
“…it cannot be said or ascertained as to the circumstances in which the conversations were held…because it is evident that these conversations would necessarily have been recorded surreptitiously by one of the parties.”
The High Court referenced previous judgments like Deepinder Singh Mann v. Ranjit Kaur and Smt. Rayala M. Bhuvaneswari v. Napaphander Rayala, which also held that such recordings violated privacy and were inadmissible.
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Supreme Court’s Ruling
The husband, Vibhor Garg, filed a Special Leave Petition (SLP (C) No. 21195/2021) in the Supreme Court. His counsel, Advocate-on-Record Ankit Swarup, argued that right to privacy is not absolute, especially in matrimonial disputes where most events occur in private and lack independent witnesses.
“Such evidence can be brought to the court using the technology and modern electronic devices available… Courts are to be circumspect in relying upon such evidence without satisfying itself as to the authenticity and reliability of such evidence.”
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Swarup further invoked Sections 14 and 20 of the Family Courts Act, 1984, to support admissibility, asserting the court’s responsibility to discover the truth.
“The recorded conversation held between the parties is another way of adducing evidence and recreating before the court the events of the matrimonial home just like the evidence of oral testimony.”
Senior Advocate Gagan Gupta appeared for the respondent (wife), defending the High Court's decision.
Case no. – SLP(C) No. 21195/2021
Case Title – Vibhor Garg v. Neha