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SUPREME COURT OF INDIA
B.V. NAGARATHNA, SATISH CHANDRA SHARMA, JJ.
Vibhor Garg – Appellant
Versus
Neha – Respondent
Civil Appeal No. of 2025 [Arising Out of Special Leave Petition (Civil) No. 21195 of 2021]
Decided On : 14-07-2025
(A) Indian Evidence Act, 1872 – Section 122 read with Sections 65A and 65B – Constitution of India – Article 21 – Whether conversation between spouses secretly recorded by one of them could be permitted to be made admissible in evidence in a divorce case – Section 122 of Evidence Act does not touch upon aspect of right to privacy as envisaged under Article 21 of Constitution – Section 122 of Evidence Act recognises right to a fair trial, right to produce relevant evidence and a right to prove one’s case against a spouse so as to avail relief sought for by a party – Three-fold test of relevance, identification and accuracy has to be satisfied before Court admits recorded conversation in evidence – However, fact that conversation was recorded without consent and knowledge of person speaking is not a prohibition on admissibility of evidence – Under Section 122 of the Act, privileged communication between spouses is protected in context of fostering intimate relationship – However, exception under Section 122 of Evidence Act has to be construed in light of right to a fair trial which is also an aspect of Article 21 of Constitution of India. (Paras 9.5, 12 and 12.1)
(B) Indian Evidence Act, 1872 – Section 122 read with Sections 65A and 65B – Hindu Marriage Act, 1955 – Section 13 – Whether conversation between spouses secretly recorded by one of them could be permitted to be made admissible in evidence in a divorce case – Section 122 of Evidence Act does not concern itself with right to privacy vis-à-vis spouses – Founding rationale for Section 122 of the Act was to protect sanctity of marriage and not right to privacy of individuals involved – In adjudicating situations where privilege under Section 122 of Act is not granted, as in suits between a couple, right to privacy is not a relevant consideration, since it is not the rationale under which spousal communications were deemed privileged under Section 122 of Act – Section 122 of Evidence Act deals with both compellability as well as permissibility – Exception has been carved out in Section 122 of Evidence Act itself to state that such privilege between spousal communication does not extend to a case of litigation between spouses themselves – In such a situation, spouses would have right to prove their respective cases and can let in such evidence which is permitted under Section 122 of Evidence Act – Family Court directed to take on record supplementary affidavit filed by way of examination-in-chief along with memory card/chip of mobile phones, compact disc (CD) and transcript of conversation recorded in memory card/chips of mobile phones for relevant period and consider the same as evidence, in accordance with law – Impugned Order passed by High Court set aside and Order passed by Family Court restored. (Paras 12.1, 12.3, 12.4, 12.6 and 13)
Facts of the case:
Sole point for consideration is: –
Whether conversation between spouses secretly recorded by one of them could be permitted to be made admissible in evidence in divorce case.
Findings of Court:
Content of a common law right may be similar to that of a fundamental right, but they are distinguished by incidence of their duties on private entities and State respectively.
Result : Appeal allowed.
Based on the provided legal document, the admissibility of secretly recorded conversations between spouses in a divorce proceeding can be considered under certain conditions. The evidence may be summoned to fill lacunae in the case, especially when it is relevant to the dispute and can be authenticated and verified for accuracy.
However, the court's discretion to admit such evidence is guided by principles that balance relevance, authenticity, and the right to privacy. The evidence can be considered after cross-examination of the party who produced it, which allows for testing the genuineness, accuracy, and context of the recordings.
Importantly, the admissibility hinges on satisfying relevant legal tests, such as establishing the authenticity and accuracy of the recordings, and ensuring that the evidence is not manipulated. The court may also consider whether the evidence was obtained in a manner consistent with legal standards, while recognizing that covert recordings made without consent are not per se inadmissible, provided they meet relevance and authenticity criteria.
In conclusion, such evidence can be summoned to fill lacunae and be subjected to cross-examination, but its acceptance will depend on satisfying the relevant legal parameters, including relevance, authenticity, and procedural law, with due regard to the right to privacy and the specific exceptions under the applicable evidentiary provisions.
| Table of Content |
|---|
| 1. factual background of the case involving divorce and evidence. (Para 2 , 3) |
| 2. arguments supporting admissibility of covertly recorded evidence in divorce. (Para 4 , 5) |
| 3. privacy considerations in the context of evidentiary rules. (Para 6 , 10) |
JUDGMENT :
B.V. NAGARATHNA, J.
1. Leave granted.
2. The present civil appeal has been filed assailing the judgment dated 12.11.2021 passed by the High Court of Punjab and Haryana in CR No. 1616 of 2020 (O&M), wherein the High Court has allowed the civil revision petition filed by the respondent herein.
Factual Background:
3. Briefly stated, the facts of the present case are that the marriage between the appellant-husband and the respondent-wife was solemnized on 20.02.2009. A daughter was born out of the said wedlock on 11.05.2011. Due to marital discord between the parties, the appellant filed a divorce petition being CIS No. DMC/405/2017 under Section 13 of the HINDU MARRIAGE ACT , 1955 before the Family Court, Bathinda, on 07.07.2017. The divorce petition was subsequently amended and filed again on 03.04.2018.
3.1 When the aforesaid case was listed for evidence, the appellant herein submitted his affidavit of examination-in-chief on 07.12.2018. Later, an application was moved by the appellant-husband on 09.07.2019 seeking permission to submit his supplementary affidavit by way of examination-in-chief along with memory cards/chips of the mobile phones, compact disc (CD) and transcript of conversations recorded in memory cards/chips of the mobile phones. In the said application, the appellant stated that various telephonic conversations happened between the parties during the period from November 2010 to December 2010, as well as between August 2016 and December 2016 and the same had been recorded by the appellant and stored in the memory cards/chips of the mobile phones. The appellant had also prepared the transcripts of those recorded conversations. Thus, the appellant prayed that he may be allowed to file his supplementary affidavit by way of his examination-in-chief along with memory cards/chips of the respective mobile phones, CD and transcripts of the conversations so recorded in memory cards/chips of the respective mobile phones.
3.2 The respondent herein opposed the application on the ground that the examination-in-chief was already completed and moreover, the admissibility of memory card/chips along with CD and transcripts is in dispute and these electronic instruments cannot be exhibited. The respondent therefore sought the dismissal of the application filed by the appellant.
3.3 The learned Principal Judge, Family Court, Bathinda allowed the application filed by the appellant on 29.01.2020, on the ground that the conversation between the parties is relevant for the adjudication of the controversy between the parties and there is no bar on the admissibility of such a tape recording. The Family Court observed that the appellant is only wanting to prove the conversation between him and the respondent and not with respect to a third party. Reliance was placed by the Family Court on Section 14 of the FAMILY COURTS ACT , 1984 (“F.C. Act” for short) which allows a Family Court to receive any evidence, statement, report, documents, etc., which is helpful in adjudicating the dispute between the parties and also on Section 20 of the F.C. Act, which has an overriding effect on the general rules of evidence. Thus, the appellant was allowed to prove the CD pertaining to the conversation between him and the respondent subject to its correctness. Consequently, on 18.02.2020 the appellant tendered by way of evidence the transcript of the audio recording, the original memory card of the phone and the CD prepared from the said memory card.
3.4 Being aggrieved by the order dated 29.01.2020 passed by the learned Principal Judge, Family Court, Bathinda, the respondent-wife filed a civil revision petition before the High Court of Punjab and Haryana being CR No. 1616 of 2020 (O&M). On
Right to privacy – Section 122 of Evidence Act does not touch upon aspect of right to privacy as envisaged under Article 21 of Constitution – Section 122 of Evidence Act recognises right to a fair tr....
The right to privacy in matrimonial disputes is not absolute and must balance with the right to fair trial, allowing relevant evidence to be admitted even if obtained through means that raise questio....
Electronic evidence – Right to holding telephone conversation in privacy of one’s home/office without interference can be claimed as a “Right to Privacy”—Telephone tapping/illegal means of collecting....
Tape recordings made without the knowledge of one party infringe their right to privacy and violate constitutional rights, rendering them inadmissible in evidence for deciding divorce petitions under....
The Family Courts Act permits lenient admissibility of evidence, allowing for tape-recorded conversations without the other party's consent, while upholding privacy rights.
The main legal point established in the judgment is the need to balance leveraging technology, specifically videoconferencing, with preserving the sanctity of judicial proceedings, ensuring privacy, ....
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