The Court said that the right to privacy cannot override the right to a fair trial when a spouse seeks to prove cruelty in divorce proceedings.
The Supreme Court has ruled that a spouse can rely on audio recordings of phone conversations with their partner as admissible evidence in matrimonial matters, including divorce proceedings.
A Bench of Justices B.V. Nagarathna and Satish Chandra Sharma clarified that such recordings are not barred under the Indian Evidence Act and do not violate the right to privacy when submitted in legal disputes between spouses.
The Court further observed that by the time such recordings are made, the marital bond has often already experienced a breakdown of trust.
“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 said snooping cannot be said to be a consequence of the Court admitting the evidence.”
The Supreme Court set aside a 2021 decision of the Punjab and Haryana High Court, which had denied a husband’s plea to admit secretly recorded phone conversations with his wife as evidence in a pending divorce case.
The husband had sought divorce on grounds of cruelty and, in 2019, approached the family court to allow the inclusion of a supplementary affidavit during his examination-in-chief. He also sought to submit memory cards, a CD, and transcripts of phone conversations recorded between 2010 and 2016, arguing that these materials were vital to substantiate his claims in the divorce petition
The family court had allowed the husband’s request, citing Sections 14 and 20 of the Family Courts Act, 1984, which permit the acceptance of any evidence that may help resolve matrimonial issues. However, the High Court reversed this order, holding that the husband’s secret recordings—made without his wife’s knowledge or consent—amounted to a breach of her fundamental right to privacy under Article 21 of the Constitution.
Dismissing the wife’s objection on grounds of privacy, the Supreme Court clarified that Section 122 of the Indian Evidence Act—which safeguards confidential communications between spouses—does not bar the use of such recordings as evidence in divorce proceedings.
“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…The bar on the disclosure of such communication is lifted since the communication sought to be disclosed in the present case is in a proceeding between the husband and the wife. Therefore, such a privileged communication is not barred from being disclosed and brought before the Court.”
The Court noted that the device used to record the conversations operated much like an “eavesdropper,” and clarified that the bar under Section 122 of the Indian Evidence Act applies solely to testimony by a spouse in court, not to the content of the communication itself. It further held that there was no need to rely on the special powers under Section 14 of the Family Courts Act, as the Indian Evidence Act already allows the admission of such recordings.
As for the manner in which the calls were recorded, the Court observed 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 Court rejected the contention that allowing such evidence would encourage surveillance or negatively impact marital relationships.
In addressing the broader privacy concerns, it referred to the landmark judgments in K.S. Puttaswamy v. Union of India and Kaushal Kishore v. State of Uttar Pradesh, acknowledging that the right to privacy can, in certain contexts, be enforced against private individuals. However, it stressed that the exception under Section 122 of the Indian Evidence Act is a legitimate legislative provision, permitting spouses to disclose private communications during judicial proceedings.
Consequently, the Court directed the Family Court in Bathinda to accept the husband’s supplementary affidavit and electronic evidence in the divorce case and to assess them in accordance with the law.
