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 audio recordings of phone conversations between spouses can be used as admissible evidence in matrimonial cases, including divorce proceedings.
A Bench comprising Justices B.V. 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 disputes between spouses.
The Court also noted that, in most instances, the trust within the marriage has already eroded by the time such recordings are made.
“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 admit secretly recorded phone conversations with his wife as evidence in an ongoing divorce case.
The husband had filed for divorce on the grounds of cruelty and, in 2019, moved the family court seeking permission to submit a supplementary affidavit during his examination-in-chief. He also sought to introduce memory cards, a CD, and transcripts of phone calls recorded between 2010 and 2016, contending that these materials were crucial to support his allegations in the divorce proceedings.
The family court had granted the husband’s request, relying on Sections 14 and 20 of the Family Courts Act, 1984, which allow for the admission of any evidence that may assist in resolving matrimonial disputes. However, the High Court set aside this decision, ruling that the husband’s secret recordings—made without his wife’s knowledge or consent—violated her fundamental right to privacy guaranteed 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 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 observed that the recording device functioned essentially as an “eavesdropper” and clarified that the restriction under Section 122 of the Indian Evidence Act pertains only to spousal testimony in court, not to the substance of their communication. It further held that invoking the special provisions under Section 14 of the Family Courts Act was unnecessary, as the Indian Evidence Act itself permits the admissibility of such recordings.
Regarding the method of recording the calls, the Court noted 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 dismissed the argument that admitting such evidence would promote surveillance or harm marital relationships.
While addressing broader privacy concerns, it cited the landmark rulings in K.S. Puttaswamy v. Union of India and Kaushal Kishore v. State of Uttar Pradesh, recognizing that the right to privacy may, in some cases, be enforced against private individuals. However, it emphasized that the exception under Section 122 of the Indian Evidence Act is a valid legislative measure, allowing spouses to reveal private communications in the course of legal proceedings.
Accordingly, the Court directed the Family Court in Bathinda to admit the husband’s supplementary affidavit and electronic evidence in the divorce proceedings and to evaluate them in accordance with the law.