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 held that a spouse may use audio recordings of phone conversations with their partner as admissible evidence in matrimonial disputes, including divorce cases.
A Bench comprising Justices BV Nagarathna and Satish Chandra Sharma clarified that such recordings are not prohibited under the Indian Evidence Act and do not infringe upon the right to privacy when presented in legal proceedings between married individuals.
The Court also noted that by the time such covert recordings are made, the marital relationship has typically already suffered a breakdown in 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 overturned a 2021 ruling by the Punjab and Haryana High Court, which had rejected a husband’s request to submit secretly recorded phone conversations with his wife as evidence in an ongoing divorce case.
The husband had filed for divorce on grounds of cruelty. In 2019, he approached the family court seeking permission to include a supplementary affidavit in his examination-in-chief, along with memory cards, a CD, and transcripts of phone calls recorded between 2010 and 2016. He contended that these recordings were crucial to support the allegations made in his divorce petition.
The family court had granted the husband’s request, referring to Sections 14 and 20 of the Family Courts Act, 1984, which allow the admission of any evidence that aids in resolving matrimonial disputes. However, the High Court overturned this decision, ruling that the husband’s covert recordings—made without his wife’s knowledge or consent—violated her fundamental right to privacy under Article 21 of the Constitution.
Rejecting the wife’s privacy-based objection, the Supreme Court clarified that Section 122 of the Indian Evidence Act, which protects confidential communications between spouses, does not prohibit the use of such recordings in divorce cases.
“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 observed that the device used to record the conversations functioned similarly to an “eavesdropper,” and clarified that the restriction under Section 122 of the Indian Evidence Act applies only to disclosure made by a spouse in court—not to the content of the communication itself. It further stated that invoking the special powers under Section 14 of the Family Courts Act was unnecessary, as the Evidence Act already permits the admission of such recordings.
Regarding the method of recording the calls, the Court remarked 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 also dismissed the argument that permitting such evidence would promote surveillance or harm marital relationships.
Addressing the broader issue of privacy, the Court cited the landmark rulings in KS Puttaswamy v. Union of India and Kaushal Kishore v. State of Uttar Pradesh. It acknowledged that the right to privacy can, in certain situations, be enforced against private individuals. However, it emphasized that the exception under Section 122 of the Indian Evidence Act is a valid legislative provision that enables spouses to disclose private communications during legal proceedings.