Secretly recorded conversation with spouse is an admissible evidence in divorce proceedings – Supreme Court
In a recent judgment, Hon’ble Supreme Court held that secretly recording of conversation with spouse is an admissible evidence in divorce proceedings before Family Court.
ABCAUS Case Law Citation:
4651 (2025) (07) abcaus.in SC
In the instant case, due to marital discord the appellant husband had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 before the Family Court.
As a evidence, the appellant sought permission to submit memory cards/chips of the mobile phones, compact disc and transcript of conversations with his spouse recorded in memory cards/chips of the mobile phones.
The family court allowed the permission observing that the appellant was only wanting to prove the conversation between him and his spouse and not with respect to a third party.
Aggrieved with the order of giving permission by the Family Court, the respondent spouse filed a revision petition before the High Court which set aside the order passed by the Family Court. It was held by the High Court that the CD tendered in evidence by the appellant-husband contained conversations between the husband and the wife recorded surreptitiously without the consent or knowledge of the wife and acceptance of the same in evidence would constitute a clear infringement of the right to privacy of the wife.
The matter travelled to the Hon’ble Supreme Court which appointed an amicus curiae to assist the Court in the case.
It was submitted by the amicus curiae that some High Courts have allowed the communication between the parties and other private information to be placed on record or summoned as evidence. On the other hand, some High Courts had disallowed production of phone call recordings, text messages and other private materials as evidence.
The amicus advocated for a set of guidelines to be formulated that may aid the Family Courts in exercising their discretion under Section 14 of the F.C. Act while dealing with admissibility of audio/video recordings as evidence between a husband and a wife.
Before the Hon’ble Supreme Court the appellant husband submitted that often in matrimonial cases, there is neither any third-party witness to prove the allegations nor is there proof by documentary evidence. This is where modern technology and electronic devices can help in bringing such evidence to the court room. If an argument of privacy is permitted to be raised, it will impinge upon the right to fair trial accorded to parties in proving cruelty of the spouse and thereby be deprived from seeking divorce before the Family Court.
The respondent wife submitted that permission to bring on record such evidence is fraught with inherent and imminent danger as the court would never be able to ascertain the circumstances in which the alleged conversation was held or the manner in which the conversation was initiated or continued.
It was also submitted that these infringes right to privacy of the wife and the conversations sought to be produced were recorded without the knowledge or consent of the respondent. Marriages are sacrosanct relationship and it is not expected of spouses either to illegally record the conversations between them or to produce them as evidence.
The Hon’ble Supreme Court observed 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 the Apex Court.
The Hon’ble Supreme Court further delved upon the applicability of Section 122 of the Evidence Act to a proceeding for divorce. It was observed that Section 122 of the Evidence Act deals with two parts – compellability and permissibility. It was observed that the husband in this case would have ordinarily been barred from disclosing any form of communication that was disclosed by the wife to him by virtue of being a privileged communication under Section 122. But due to the exception provided in that Section, 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, i.e., the petition filed by the husband for divorce under Section 13 of the Hindu Marriage Act.
The Hon’ble Supreme Court opined that what is barred in the instant case was the disclosure of the communication made by the wife to the husband by the latter standing in the witness box. But the communication that was made to the husband is itself not barred. The phone on which the conversation was recorded is no different from an eavesdropper. The restriction under Section 122 does not apply to the communication that was made by the wife to the husband and the same can also be proved by means other than the husband himself coming to the witness box to disclose that communication.
The Hon’ble Supreme Court also pointed out that Section 14 of the F.C. Act gives a wide discretion to the Family Courts in deciding matrimonial disputes since they can go beyond the strict rules of evidence in terms of relevance and admissibility while admitting any evidence which they think is relevant for the adjudication of the dispute at hand.
The Hon’ble Supreme Court further observed that before a Court of law, a relevant piece of conversation available on an electronic device should not be allowed to be shut out when it is the best evidence available for deciding the dispute. The erstwhile Evidence Act is a legislation that was more than a century old and therefore obviously could not encapsulate all the technologically varied challenges which the modern technology poses before us. That was the reason for the Parliament to amend the Evidence Act by incorporating Section 65B which specifically deals with electronic evidence.
The Hon’ble Supreme Court held that on weighing the respective rights of the parties in a trial within the parameters of Section 122 of the Evidence Act, there is no breach of right to privacy in the instant case. The Evidence Act does not concern itself with right to privacy vis-à-vis spouses which is evident on a reading of the Section and on discerning its plain meaning.
As a result, the Hon’ble Supreme Court set aside the impugned order passed by the High Court and restored the order passed by the Family Court with direction to treat the memory card/chip of the mobile phones, compact disc (CD) and transcript of the conversation recorded in memory card/chips of the mobile phones for the relevant period as evidence.
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