By Dilip Bobb
The dictionary defines “landmark” in the legal context as an event marking an important turning point. Last week’s ruling by a Supreme Court bench of Justices BV Nagarathna and Satish Chandra Sharma certainly falls under that definition.
On July 14, the bench set aside the Punjab and Haryana High Court’s judgment that held that recording a wife’s telephonic conversation without her knowledge amounts to a “clear breach” of her fundamental right to privacy and cannot be admitted in evidence. That also clearly lays down that there is no absolute right to privacy between spouses in the context of matrimonial disputes. That earlier judgment had barred a husband, who had sought a divorce, from using secretly recorded conversations with his wife, as evidence in the court case.
The apex court bench disagreed with the argument that making secret recordings admissible in court would lead to surveillance within marriage. “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 between them.” The Court further clarified that Section 122, which protects marital communications, does not provide absolute immunity in matrimonial disputes, especially when the marriage is already strained.
The ruling is seen as striking a fine balance between the fundamental right to privacy (as defined in KS Puttaswamy vs Union of India) and the right to a fair trial. Which is why the apex court’s ruling stressed that while secretly recorded conversations are admissible, trial courts still need to consider the context and relevance of the evidence in individual cases.
At the heart of the ruling lies the acceptance of the role of technology in recording and presenting evidence; basically, that modern devices can recreate events of the matrimonial home, similar to oral testimonies. That opens new avenues for collecting admissible digital evidence in cases involving cruelty, divorce, or child custody. The Court’s ruling changes the contours of spousal or marital privilege in Indian law, which protects private conversations between a husband and a wife during their marriage, and even after the marriage has ended.
The top court clarified that the Bharatiya Sakshya Adhiniyam (the new Evidence Act), which replaces the Evidence Act, retains the same exception in Section 121, reaffirming that spousal privilege does not supersede the right to a fair adjudication in family disputes. The ruling relied on its 1973 judgment in a case which involved a telephonic conversation recorded by the police to prove a bribery charge against a doctor. At that time, the apex court overlooked how the evidence was obtained, given that the case involved corruption by a public servant and the phone tap was by the state. The Court has now effectively extended this reasoning to matrimonial cases.
The case that led to this path-breaking ruling was Vibhor Garg vs Neha, 2025. The appellant (husband) and respondent (Neha) his wife, were married in February 2009. They had a daughter, but soon after, there were clear signs of marital discord. In July, 2017, the husband filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, before the Family Court in Bhatinda. In a hearing of the case in 2019, he filed an application seeking permission to submit memory cards, a CD, and transcripts of telephonic conversations recorded between 2010 and 2016. The wife’s lawyers opposed the application, questioning the admissibility of such electronic evidence. In its order in January 2020, the Family Court allowed the husband’s application, holding that the recordings were relevant and admissible under Sections 14 and 20 of the Family Courts Act, 1984.
In response, the wife filed a civil revision petition before the Punjab and Haryana High Court. The High Court stayed the Family Court’s order, saying that the CD contained surreptitiously recorded conversations without the wife’s knowledge or consent, amounting to a violation of her right to privacy, which is part of the right to life under the Constitution. The High Court delivered its judgment in favour of the wife. That led to the present appeal which reached the Supreme Court.
The primary legal issue involved the scope of Section 122 of the Indian Evidence Act, which provides a rule of privilege protecting the disclosure of communications made between spouses during a valid marriage as opposed to a live-in relationship. Unlike Section 120, which involves the competency of spouses to testify against each other, Section 122 focused on the admissibility of privileged communications.
The top court held that while spousal communication is protected, the right to privacy under Section 122 is not absolute and must be interpreted in the context of a deeply invasive digital era and therefore must have exceptions. The Court emphasised that relevant conversations stored on electronic devices should not be excluded from consideration in legal proceedings when such material constitutes the best available evidence to resolve the dispute. It observed that the original Evidence Act was enacted over a century ago and could not have anticipated the challenges posed by modern technology. The Court said that this was precisely why Parliament amended the Evidence Act to include Section 65B, which explicitly addresses the admissibility of electronic records. Thus, electronically stored conversations, when authenticated in compliance with Section 65B, are not only relevant, but also admissible, and their exclusion would undermine both legal reasoning and technological progress in the justice system.
What the ruling indicates in the larger social sphere is that the nature of “evidence” has been transformed in the hyper-active digital realm. That can include CCTV footage, e-mails, a chain of text messages to video and CD recordings, group chats and blogs on a plethora of platforms. Such evidence is now the new normal in the context of the latest Supreme Court ruling.
Many High Courts have refrained from accepting secret recordings as evidence so far, concerned about the “sanctity of marriage” and violations of privacy. In the present ruling, the Supreme Court has laid down that there is no legal bar on admitting such technical evidence when it is crucial to determining the truth in a divorce case. As Justice Nagarathna observed: “When parties resort to secret recording, it reflects a complete breakdown of trust. Such evidence may, in fact, demonstrate the very cruelty or mistrust being pleaded.”
The Court laid down four conditions for admissibility:
- Relevance: The recording must directly relate to the issues in dispute.
- Clarity: The voices in the audio must be distinctly identifiable.
- Authenticity: The recording must be original, untampered, and verifiable.
- Right to Challenge: The other party must have a fair opportunity to challenge the evidence during trial.
It needs to be emphasised that the ruling does not endorse constant surveillance but calls for responsible use of such evidence in family disputes. Section 122 of the Evidence Act states: “No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative-in-interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”
In earlier judgments, the Supreme Court has ruled that WhatsApp messages can be considered evidence, but their meaning and content must be proven during trial. Similarly, courts may allow call recordings as evidence, particularly if they help resolve a case and ensure successful prosecution. The definition of electronic recording has also been expanded to include various forms of digital information, such as emails, text messages, and social media posts. In essence, digital recordings can be powerful evidence in court if their authenticity, accuracy and integrity can be established and if they comply with the relevant legal provisions, particularly Section 65B of the Indian Evidence Act.
The decision to allow covertly-gathered evidence in a matrimonial dispute opens the door for other matrimonial issues in an age where conversations and exchanges between husband and wife, or families for that matter, is, more often than not, conducted via digital devices rather than orally, in person. Digital footprints are now visible in the most private of places and the latest ruling is not just an acceptance of that fact, but also that it is no longer legally sacrosanct when it comes to marital disputes.
—The writer is former Senior Managing Editor, India Legal magazine