Producing Secretly Recorded Conversation Between Husband-Wife As Evidence Not To Violate Right To Privacy: SC

The Supreme Court has on July 14, 2025 held that secretly recorded conversation between husband-wife can be produced to adjudicate upon a divorce proceedings and it would not amount to breach to right to privacy.

A bench of Justices B V Nagarathna and Satish Chandra Sharma said the privacy of communication exists between spouses, as has been recognised by Section 122 of the Evidence Act but the said right of privacy cannot be absolute and has to be read also in light of the exception provided in the said provision.

The bench also said, 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.

The court emphasised that the three-fold test of relevance, identification and accuracy has to be satisfied before a court admits a recorded conversation in evidence.

"However, the fact that the conversation was recorded without the consent and knowledge of the person speaking is not a prohibition on the admissibility of the evidence, as laid down by the Evidence Act and read into the statutory provisions by this court," the bench said.

Section 122 of the Evidence Act deals with rule of privilege protecting disclosure of all communications between persons married to one another made during marriage, except in certain cases, i.e., in litigation between themselves.

The court here set aside November 12, 2021 judgment of the Punjab and Haryana High Court which allowed the wife's plea against the Family Court's order granting permission to husband to produce memory card of the phone and CD recorded secretly during the divorce proceedings.

Considering the husband's appeal, the bench pointed out, Section 122 of the Evidence Act 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.

"In today’s day and age, when the technological advancement has made it easier to record and recreate moments of past and present for reference in future, then to say that such better forms of evidence and material would not be admissible on the ground of they being in violation of the right to privacy would amount to defeating the very object of the Evidence Act. That was the reason for the Parliament to amend the Evidence Act by incorporating Section 65B which specifically deals with electronic evidence," the bench said.

The court rejected an argument by amicus curiae Vrinda Grover that permitting such an evidence would jeopardise domestic harmony and matrimonial relationship inasmuch as it would encourage snooping on the spouse, thereby fracturing the very objective of Section 122 of the Evidence Act.

"We do not think such an argument is tenable. 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 bench said.

The court also noted the founding rationale for Section 122 of the said Act, as has been recognised by the Law Commission and subsequently by certain High Courts, was to protect the sanctity of marriage and not the right to privacy of the individuals involved.

"Therefore, in adjudicating situations where the privilege under Section 122 of the Act is not granted, as in suits between a couple (an exception provided for in Section 122 itself), the right to privacy is not a relevant consideration, since it is not the rationale under which spousal communications were deemed privileged under Section 122 of the Act," the bench said.

The court pointed out 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. In such a situation, the spouses would have the right to prove their respective cases and therefore can let in such evidence which is permitted under Section 122 of the Evidence Act, if one could use the expression “spill the beans”.

The court said under Section 122, privileged communication between the spouses is protected in the context of fostering intimate relationship. However, the exception under Section 122 of the Evidence Act has to be construed in light of right to a fair trial which is also an aspect of Article 21 of the Constitution of India.

"When we weigh the respective rights of the parties in a trial within the parameters of Section 122 of the Evidence Act, we do not think that there is any breach of right to privacy in the instant case," the bench held.

The bench underscored, in fact, Section 122 does not recognise such a right at all. On the other hand, the said Section carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all.

"In this regard, we reiterate that as per procedure established by law, Section 122 of the Evidence Act 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 bench said.

The court explained the reason is because Section 122 of the Evidence Act 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 party.

The court held 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 court pointed out the erstwhile Evidence Act is a legislation that was more than a century old and therefore obviously could not encapsulate all the technologically varied challenges which the modern technology poses before us. Yet, what the said legislation remarkably conveys is that the purpose of the law of evidence is not to create barriers but to break them to ensure that a clearer picture is created in the mind of the judge so as to decide a dispute before it, the bench said.

"This is why when the evidence is not direct, the legislation allows a judge to rely on circumstantial evidence; it allows presumptions of fact and law and adverse inferences to be drawn from the conduct of parties and witnesses so that a fair and reasonable conclusion can be reached from the material on record," the bench said.

Case Title: Vibhor Garg v. Neha