Supreme Court’s Game-Changer Ruling: Secretly Recorded Calls Can Be Used as Evidence in Divorce Cases

New Delhi: The Supreme Court on Monday (July 14) ruled that secretly recorded telephonic conversations between spouses are admissible as evidence in matrimonial disputes, setting aside a judgment by the Punjab and Haryana High Court that had deemed such recordings a “clear breach” of the wife’s fundamental right to privacy.  

A bench of Justice BV Nagarathna and Justice Satish Chandra Sharma observed that permitting such evidence would not infringe upon domestic harmony or violate Section 122 of the Indian Evidence Act, 1872. Instead, the court noted, if a marriage has reached the stage where spouses are actively snooping on each other, it indicates a breakdown of trust in the relationship. 

“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 bench stated while delivering the verdict. 

The Case: Challenge to High Court's Privacy Stand

The judgment came in response to a Special Leave Petition (SLP) challenging the Punjab and Haryana High Court’s earlier ruling, which had held that recording a wife’s phone conversations without her knowledge violated her right to privacy and could not be admitted before a Family Court.

The case originated from divorce proceedings under Section 13 of the Hindu Marriage Act, 1955, where the Family Court in Bathinda had allowed the husband to submit a compact disc containing recorded conversations to support his allegations of cruelty. The wife challenged this in the High Court, arguing that the recordings were made without her consent and their acceptance would breach her fundamental rights.

Justice Lisa Gill of the High Court had set aside the Family Court’s order, ruling that admitting such evidence would be unjustified as the conversations were recorded surreptitiously, making it impossible to ascertain the circumstances or manner in which responses were elicited, even with cross-examination.

The High Court, while delivering its judgment, stated:

“…it cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptitiously by one of the parties.”

The High Court had relied on prior judgments, including Deepinder Singh Mann v. Ranjit Kaur and Smt. Rayala M. Bhuvaneswari v. Napaphander Rayala, to underline that private conversations between spouses could not be used as evidence without consent, as it would violate the right to privacy. 

Husband Argues Privacy Not Absolute

The husband challenged the High Court’s ruling before the Supreme Court, with the apex court issuing notice in the matter on January 12, 2022.

Advocate-on-Record Ankit Swarup, representing the husband, argued that while the right to privacy is fundamental, it is not absolute and must be balanced with other rights, especially in matrimonial disputes. Referring to the exception under Section 122 of the Indian Evidence Act, he contended that communication between spouses can be disclosed in divorce proceedings.

The petition noted that allegations of mental cruelty in matrimonial cases often involve incidents confined to the private domain of the matrimonial home, which are difficult to prove without documentary or technological evidence.

“In the present age of technology and computers, such evidence can be brought to the court using modern electronic devices available. However, as a matter of caution, the courts are to be circumspect in relying upon such evidence without satisfying itself as to the authenticity and reliability of such evidence recorded on electronic devices,” the petition argued.

A Tool to Establish Cruelty in Matrimonial Disputes

Citing Sections 14 and 20 of the Family Courts Act, 1984, the petitioner asserted that these provisions enable courts to discover the truth and ensure a fair trial in matrimonial disputes. The recorded conversations, the husband argued, were intended to prove cruelty by the wife, and without such evidence, seeking a divorce decree would become impossible.

“The recorded conversation held between the parties is another way of adducing evidence and recreating before the court the events of the matrimonial home just like the evidence of oral testimony of parties and other witnesses does,” the petition stated.

By ruling that secretly recorded conversations can be used as evidence in matrimonial disputes, the Supreme Court has established a significant precedent, clarifying the balance between the right to privacy and the need to establish facts in family law proceedings.

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