In a significant ruling, the Supreme Court has held that secretly recorded phone conversations between spouses are admissible as evidence in matrimonial disputes, including divorce proceedings. The verdict emphasizes that the right to privacy cannot override the right to a fair trial, particularly when one spouse seeks to establish cruelty or other grounds for divorce.
A Bench of Justices BV Nagarathna and Satish Chandra Sharma made it clear that such recordings do not violate the right to privacy under Article 21, nor are they barred by Section 122 of the Indian Evidence Act, which deals with privileged spousal communications.
“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 Court observed.
The case involved a man who had filed for divorce on the ground of cruelty and submitted a supplementary affidavit before the family court in Bathinda, containing CDs, memory cards, and transcripts of conversations with his wife recorded between 2010 and 2016. While the family court allowed the evidence under Sections 14 and 20 of the Family Courts Act, the Punjab and Haryana High Court reversed the decision, citing violation of privacy.
Setting aside the High Court’s decision, the Supreme Court emphasized that Section 122 contains an exception when the communication is part of litigation between spouses. In such cases, the bar on disclosure is lifted.
“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 Court also compared the recording device to an “eavesdropper” and clarified that admissibility depends on relevance, identification, and accuracy, not on consent.
“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.”
On concerns that the ruling might promote surveillance in marriages, the Court remarked that the law already balances privacy with the need for a fair trial.
The apex court directed the family court at Bathinda to accept the husband’s supplementary affidavit and electronic records, and to assess them according to law.
Advocate Vrinda Grover appeared as Amicus Curiae. The petitioner was represented by a team led by Advocate Ankit Swarup, while Senior Advocate Gagan Gupta led the team for the respondent.
