Secretly Recorded Spousal Conversations May Be Admissible If Reliable, Supreme Court Directs Family Court To Consider Evidence

A bench of Justices B.V. Nagarathna and Satish Chandra Sharma heard an appeal against a Punjab and Haryana High Court order that had set aside a Family Court direction permitting a husband to tender memory cards, a compact disc and transcripts of covertly recorded telephone conversations with his wife in divorce proceedings under Section 13 of the Hindu Marriage Act. The question was whether surreptitious recordings between spouses could be admitted in matrimonial proceedings and the interplay of Section 122 of the Evidence Act with the Family Courts Act and the right to privacy under Article 21.

The Supreme Court allowed the appeal, set aside the High Court judgment of 12.11.2021 and restored the Family Court order of 29.01.2020, directing that the supplementary affidavit, memory cards/chips, CD and transcripts be taken on record and considered as evidence in accordance with law. The Court emphasised established safeguards for electronic material and applied the three-fold test for recorded conversations: relevance to the issues, identification of voice and proof of accuracy/elimination of tampering. The Court, in its reasoning, observed: “Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act.” The Court further noted that “snooping between partners is an effect and not a cause of marital disharmony,” and held that Section 122 itself contained the exception permitting disclosure in suits between married persons.

Background The marriage was solemnised in February 2009 and a daughter was born in May 2011. The husband filed a divorce petition in the Family Court, Bathinda, in July 2017. While giving evidence, he sought in July 2019 to file a supplementary examination-in-chief attaching mobile memory cards, a CD and transcripts of audio conversations recorded by him for periods in 2010 and 2016. The Family Court allowed the application as relevant, relying on Sections 14 and 20 of the Family Courts Act and on the Family Court’s discretion to receive evidence helpful to adjudicate the dispute; the appellant tendered the CD, memory card and transcripts on 18.02.2020.

The respondent-wife challenged that order before the High Court, which stayed and ultimately allowed the revision petition, holding that the covert recordings were made without her knowledge and that their acceptance would “constitute a clear infringement of the right to privacy of the wife,” a facet of Article 21. The High Court relied on several High Court precedents disallowing surreptitious spousal recordings. The appellant obtained special leave and this Court heard the matter, having earlier directed in December 2024 that evidence already recorded proceed in-camera with transcripts sealed; the Court also appointed Ms. Vrinda Grover as amicus curiae, whose submissions the Court recorded and considered.

In resolving the matter the Supreme Court examined Section 122 of the Evidence Act, decisions such as Yusufalli Esmail Nagree and R.M. Malkani on tape-recorded evidence and the statutory regime for electronic records (Sections 65A/65B). The Court held that Section 122 protected spousal communications but contained an express exception for suits between married persons, and that admissibility turned on relevance, voice identification and proof against tampering. The Court restored the Family Court’s order to receive the material as evidence, subject to usual judicial safeguards and in accordance with law. The appeal was allowed; parties were directed to bear their own costs and the Registry was ordered to pay Rs. 1,00,000 to the amicus.

Case Details: Case No.: 2025 INSC 829 Case Title: Vibhor Garg v. Neha Appearances: For the Petitioner(s): Ankit Swarup, Advocate For the Respondent(s): Gagan Gupta, Senior Counsel Amicus Curiae: Vrinda Grover, Advocate