It is most extremely significant to note that while sharply overruling a 2021 judgment of the Punjab and Haryana High Court titled Neha Vs Vibhor Garg in which Chandigarh High Court held that recording wife’s call without consent breaches fundamental right to privacy, the Supreme Court in Civil Appeal (Arising out of Special Leave Petition (Civil) No.21195 of 2021) and cited in Neutral Citation No.: 2025 INSC 829 that was pronounced as recently as on July 14, 2025 in the exercise of its civil appellate jurisdiction has explicitly ruled that a spouse may rely on secretly recorded telephonic conversations with the other partner in matrimonial disputes, including divorce proceedings, because such communications are not barred under the law and do not amount to a breach of privacy. It asked the Bathinda Family Court to proceed with the case after taking judicial note of the recorded conversations. We need to note that the Apex Court said that the fact that spouses are recording their conversations of each other is proof in itself that their marriage is not going strong and hence can be used in the judicial proceedings. It may be recalled that the Bathinda Family Court had allowed the husband to place reliance on recorded telephone calls with his wife to prove allegations of cruelty but the Punjab and Haryana High Court had overruled it. Now we see herein that the Supreme Court has most resoundingly overruled the Punjab and Haryana High Court order and so also clearly restored the Bathinda Family Court order (2020).
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice BV Nagarathna for a Bench of the Apex Court comprising of herself and Hon’ble Mr Justice Satish Chandra Sharma sets the ball in motion by first and foremost putting forth in para 2 that, “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.”
To put things in perspective, the Bench envisages in para 3 while elaborating on the factual background of the case disclosing and stating that, “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 05.03.2020, the High Court issued notice in the matter and granted an interim order of stay on the order dated 29.01.2020.
3.5 By the impugned judgment dated 12.11.2021, the High Court allowed the civil revision petition filed by the respondent and thereby set aside the order dated 29.01.2020 passed by the Principal Judge, Family Court, Bathinda. It was held 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. While the High Court did not dispute that the Family Court is not bound by the strict rules of evidence, it held that the CD cannot be accepted in view of the right to privacy of the wife, which is a facet of the right to life accorded by the Constitution of India.
3.6 In the impugned order, the High Court supported its reasoning by placing reliance on the following judgments of various High Courts:
i. Deepinder Singh Mann vs. Ranjit Kaur, 2014 SCC OnLine P&H 4826
ii. Tripat Deep Singh vs. Paviter Kaur, 2018 (3) RCR (Civil) 71
iii. Rayala M. Bhuvaneswari vs. Nagaphanender Rayala, AIR 2008 AP 98
iv. Anurima @ Abha Mehta vs. Sunil Mehta s/o Chandmal, (2016) 2 RCR (Civil) 773
v. Vishal Kaushik vs. Family Court, 2016(1) RLW 693 (Raj.)
3.7 The crux of the observations made by the High Courts in all these judgments was that the recorded conversations between a husband and a wife cannot be made the basis for deciding a petition under Section 13 of the Hindu Marriage Act, 1955 since courts cannot judge under what circumstances the recorded statements were made by the parties. That recording any such conversation without the knowledge of the other partner would amount to violation of the right to privacy. On the basis of this reasoning, the High Court passed the impugned judgment in favour of the respondent herein.
3.8 Being aggrieved by the judgment dated 12.11.2021 passed in CR No. 1616 of 2020 (O&M), the appellant-husband has preferred the present civil appeal. This Court issued notice in the matter on 12.01.2022 and granted an interim stay of the proceedings in CIS No. DMC/405/2017 pending before the Court of Principal Judge, Family Court, Bathinda, Punjab.
3.9 However, on 03.12.2024, this Court directed that pending disposal of the present civil appeal, the Family Court shall continue the evidence of PW-1 pursuant to what had been recorded on 18.02.2020, though as a matter of safeguard, the recording of evidence and subsequent cross-examination was to happen in-camera. The transcription of the said recording of the evidence of PW-1 and cross-examination was directed to be placed in a sealed cover.
3.10 Subsequently, on 19.12.2024, this Court appointed Ms. Vrinda Grover, learned Advocate, as an amicus curiae to assist this Court in the case. The learned amicus has placed her written note of submissions before this Court and has advanced detailed submissions on the different facets of the issue facing this Court in this present case.”
Most significantly, the Bench encapsulates in para 12 which we shall deal briefly, what also constitutes the cornerstone of this notable judgment postulating that, “In view of the aforesaid discussion, we firstly observe that Section 122 of the Evidence Act is not assailed in these proceedings. Secondly, under Section 122 of the said Act, privileged communication between the spouses is protected in the context of fostering intimate relationship. However, the exception under Section 122 of the Evidence Act has to be construed in light of right to a fair trial which is also an aspect of Article 21 of the Constitution of India. When we weigh the respective rights of the parties in a trial within the parameters of Section 122 of the Evidence Act, we do not think that there is any breach of right to privacy in the instant case. In fact, Section 122 of the aforesaid Act does not recognise such a right at all. On the other hand, the said Section carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all. In this regard, we reiterate that as per procedure established by law, Section 122 of the Evidence Act does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution, let alone invade upon such right. The reason is because Section 122 of the Evidence Act recognises the 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 the relief sought for by a party.
12.1 As already discussed, Section 122 of the Evidence Act deals with both compellability as well as permissibility. The first part deals with compellability while the second part deals with permissibility. The second part dealing with permissibility is followed by two exceptions which are – a) proceedings in suits between married persons; and b) proceedings in which one married person is prosecuted for any crime committed against each other. Under the exception, the requirement of taking consent from other spouse before disclosing the communication is done away with. Therefore, 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. In such a situation, the spouses would have the right to prove their respective cases and therefore can let in such evidence which is permitted under Section 122 of the Evidence Act, if one could use the expression “spill the beans”.
Finally, the Bench concludes by holding in para 13 that, “In view of the aforesaid discussion, we set aside the impugned order dated 12.11.2021 passed by the High Court in CR No.1616 of 2020 (O & M) and restore the order passed by the Family Court dated 29.01.2020 passed by the learned Principal Judge, Family Court, Bhatinda. The Family Court is directed to take on record the supplementary affidavit filed by way of examination-in-chief along with 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 and consider the same as evidence, in accordance with law. The appeal is allowed and disposed of in the aforesaid terms. We place on record our sincere appreciation to the valuable assistance rendered by the learned amicus Ms. Vrinda Grover. We direct the Registry of this Court to pay a sum of Rs.1,00,000/- as honorarium for the valuable services rendered by the learned amicus. Parties to bear their respective costs.”
In a nutshell, we thus see that the Apex Court has made it indubitably clear in this leading case that while the right to privacy exists between spouses, it is not absolute. The top court pointed out that the exception under Section 122 must be read in conjunction with the constitutional right to a fair trial which is also protected under Article 21 of the Constitution. The Bench concluded that no breach of privacy occurred in the instant case.
By the way, we see that the Apex Court while noting that a conversation between spouses secretly recorded by one of them can be admitted as evidence also underscored that allowing such evidence in matrimonial cases upholds procedural fairness, particularly where issues such as mental cruelty or marital discord are being litigated. The Bench said that, “Privacy of communication exists, but it is not absolute.” It was pointed out by the Bench that statutory exceptions such as those in the Evidence Act reflect a balance between privacy and justice.
All said and done, we thus see that the Apex Court has made it manifestly clear that a spouse can certainly rely on secretly recorded calls in matrimonial disputes including divorce proceedings. The top court has thus very clearly overruled the judgment of the Punjab and Haryana High Court and restored the order of the Bathinda Family Court. Of course, it also definitely merits no reiteration at all that all the courts – district courts, high courts and so all the Apex Court itself must now pay heed to what the Apex Court has held so clearly, cogently, convincingly, commendably and courageously in this notable case. No denying or disputing it!
Sanjeev Sirohi
