The Supreme Court recently ruled that a spouse can rely on audio recordings of phone conversations with the other spouse as evidence in matrimonial disputes such as divorce proceedings.

A Bench of Justices BV Nagarathna and Satish Chandra Sharma said that such recordings are not barred under the Indian Evidence Act and do not amount to a violation of the right to privacy when used in suits between married persons.

It observed that by the time covert recordings are made, trust has already broken down between the spouses.

“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 set aside a 2021 decision of the Punjab and Haryana High Court that had refused to admit a husband’s secret recordings of phone calls with his wife in a pending divorce case.

The husband had sought divorce on the ground of cruelty. In 2019, he moved an application before the family court to file a supplementary affidavit in his examination-in-chief, along with memory cards, a CD and transcripts of phone conversations between him and his wife recorded between 2010 and 2016. He argued that these recordings were relevant to establish his claims in the divorce petition.

The family court had allowed the application, citing Section 14 and Section 20 of the Family Courts Act, 1984, which permit family courts to admit any evidence that is helpful for resolving the dispute. However, the High Court reversed the order, holding that the husband’s recordings made without the wife’s knowledge or consent violated her fundamental right to privacy under Article 21 of the Constitution.

While dismissing the wife’s objection based on the right to privacy, the Supreme Court clarified that Section 122 of the Indian Evidence Act, which protects spousal communications, does not bar such recordings 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.”

It held that the phone used to record the conversations was akin to an “eavesdropper” and that the restriction under Section 122 applies only to disclosure by the spouse in court, not to the communication itself. The Court also noted that the recordings did not require the extraordinary powers under Section 14 of the Family Courts Act, because the Evidence Act already allowed their admission.

On the manner in which calls are recorded, the Court said,

"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."

Further, the Court rejected the contention that allowing such evidence would encourage surveillance and damage matrimonial relationships.

On the larger issue of privacy, the Court referred to the judgments in KS Puttaswamy v. Union of India and Kaushal Kishore v. State of Uttar Pradesh, and acknowledged that while the right to privacy may be enforceable against non-State actors in certain circumstances, the exception in Section 122 of the Evidence Act is a valid legislative mechanism that allows spouses to “spill the beans” during litigation.

The Court thus directed the family court at Bathinda to accept the husband’s supplementary affidavit and electronic records as evidence in the divorce case and to assess them in accordance with law.

The petitioner was represented by Advocates Ankit Swarup, Neelmani Pant, Vidisha Swarup, Rishi Bhargava, Yashvi Aswani, Yash S Vijay, Devika Tulsiani, and Soutim Banerjee.

The respondent was represented by Senior Advocate Gagan Gupta and Advocate Ananta Prasad Mishra

Advocate Vrinda Grover served as Amicus Curiae in the matter.

[Read Judgment]