Holding

Section 122 of the Evidence Act allows the admission of spousal communications in matrimonial litigation, and the High Court’s refusal to admit the secretly recorded conversations was erroneous.

Summary

The husband filed a divorce petition and sought to introduce secretly recorded telephone conversations with his wife as evidence, submitting memory cards, a CD and transcripts. The Family Court allowed the evidence, but the High Court set aside that order on the ground that the recordings violated the wife's right to privacy. On appeal, the Supreme Court examined whether such covert recordings are admissible under the Evidence Act, the Family Courts Act, and the Constitution’s right to privacy. It held that Section 122 of the Evidence Act expressly permits disclosure of spousal communications in matrimonial suits, and that the lack of consent does not per se bar admissibility if the three‑fold test of relevance, identification and accuracy is satisfied. The Court further ruled that the privacy right under Article 21 does not override the statutory exception for divorce proceedings and that the High Court’s order was erroneous. Consequently, the Supreme Court restored the Family Court’s order and directed that the recordings be admitted as evidence.

Issues considered

Whether a secretly recorded conversation between spouses can be admitted as evidence in a divorce proceeding.
Whether Section 122 of the Evidence Act, read with the Family Courts Act, 1984, overrides a claim of privacy in such circumstances.
Whether the right to privacy under Article 21 of the Constitution alone is sufficient to exclude the recorded evidence.

Legislation cited

Constitution of Indias. Article 21
Delhi Family Courts (Amendment) Rules, 2024s. Rule 17
Delhi Family Courts Rules, 1996
Evidence Act, 1872s. 122, s. 65A, s. 65B, s. 7, s. 8
Family Courts Act, 1984s. 14, s. 20
Hindu Marriage Act, 1955s. 13

Headnote

Issue for Consideration Issue arose whether the conversation between spouses secretly recorded by one of them could be permitted to be made admissible in evidence; whether in light of the Evidence Act and the Family Courts Act, 1984, a conversation between spouses can be permitted to be given in recorded evidence should be disallowed solely on the ground that it is violative of the privacy of one of the spouses; and as to the correctness of the order passed by the High Court, declining permission to the husband to corroborate his evidence in the form of recording on his mobile phone and

Subjects

admissibility of evidencespousal privilegeright to privacysection 122 Evidence Actfamily courtsdivorceelectronic evidencesection 14 Family Courts Actsection 20 Family Courts Actsection 65Bsection 13 Hindu Marriage Actfair trialtechnology and privacy

Judgment

[2025] 7 S.C.R. 611 : 2025 INSC 829

Vibhor Garg
v.
Neha
(Civil Appeal No. 9489 of 2025)
14 July 2025
[B.V. Nagarathna* and Satish Chandra Sharma, JJ.]

Issue for Consideration
Issue arose whether the conversation between spouses secretly
recorded by one of them could be permitted to be made admissible
in evidence; whether in light of the Evidence Act and the Family
Courts Act, 1984, a conversation between spouses can be permitted
to be given in evidence in a proceeding for divorce; whether such
a recorded evidence should be disallowed solely on the ground
that it is violative of the privacy of one of the spouses; and as to
the correctness of the order passed by the High Court, declining
permission to the husband to corroborate his evidence in the form
of recording on his mobile phone and by means of a compact disc
(CD) and transcription of the same containing the communication
made by the wife to the husband in order to prove his case for
seeking divorce.

Headnotes†
Hindu Marriage Act, 1955 – s.13 – Evidence Act, 1872 –
s.122 – Family Courts Act, 1984 – Constitution of India –
Art.21 – Divorce – Secretly recorded telephonic conversation
of spouse – Admissibility in evidence – Right to Privacy –
Husband sought 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 – Family Court allowed the application – However, in
the revision petition by the wife, the High Court held that the
CD cannot be accepted in view of the right to privacy of the
wife – Correctness:
Held: Order passed by the High Court set aside and that
by the Family Court restored – Three-fold test of relevance,

* Author
612 [2025] 7 S.C.R.

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identification and accuracy has to be satisfied before a Court
admits a recorded conversation in evidence – 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 – Husband 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 u/s.122
of the Evidence Act, however 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 is in a
divorce proceeding between the husband and the wife – Thus,
such privileged communication is not barred from being disclosed
and brought before the Court and the objection taken by the wife
with respect to s.122 is not acceptable – Adverting to s.14 of the
F.C. Act is not required in the instant facts when the Evidence Act
itself permits such a communication to be admitted in evidence by
way of an exception – Furthermore, the exception u/s.122 has to
be construed in light of right to a fair trial which is also an aspect
of Art.21 – When the respective rights of the parties in a trial are
weighed within the parameters of s.122, there is no breach of right
to privacy – Thus, as per procedure established by law, s.122
does not touch upon the aspect of right to privacy as envisaged
u/Art.21 of the Constitution, let alone invade upon such right
because s.122 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 – Rationale for s.122
was to protect the sanctity of marriage and not the right to privacy
of the individuals involved. [Paras 9.5, 10, 10.2, 12, 12.6, 13]
Evidence Act, 1872 – s.122 – Communications during
marriage – Rule of privilege protecting disclosure of all
communications between persons married to one another
made during marriage, except in certain cases, i.e., in litigation
between themselves – Principles and interpretations – Stated.
[Para 8.8]

Case Law Cited
M.C. Verghese v. T.J. Poonan [1969] 2 SCR 692 : (1969) 1 SCC 37;
Ram Bharosey v. State of U.P. (1954) 1 SCC 284; Yusufalli Esmail
Nagree v. The State of Maharashtra [1967] 1 SCR 720 : AIR 1968
SC 147; Shankar v. State of T.N [1994] 3 SCR 298 : (1994) 4
SCC 478; R. M. Malkani v. State of Maharashtra (1973) 2 SCR
[2025] 7 S.C.R. 613

Vibhor Garg v. Neha

417 : (1973) 1 SCC 471; K.S. Puttaswamy (Privacy-9J.) v. Union
of India [2017] 10 SCR 569 : (2017) 10 SCC 1; Kaushal Kishor v.
State of U.P. [2023] 8 SCR 581 : (2023) 4 SCC 1; People’s Union
for Civil Liberties (PUCL) v. Union of India [1996] Supp. 10 SCR
321 : (1997) 1 SCC 301; Maneka Gandhi v. Union of India [1978]
2 SCR 621 : (1978) 1 SCC 248 – referred to.
Deepinder Singh Mann v. Ranjit Kaur, 2014 SCC OnLine P&H
4826; Tripat Deep Singh v. Paviter Kaur, 2018 (3) RCR (Civil) 71;
Rayala M. Bhuvaneswari v. Nagaphanender Rayala, AIR 2008 AP
98; Anurima @ Abha Mehta v. Sunil Mehta s/o Chandmal (2016) 2
RCR (Civil) 773; Vishal Kaushik v. Family Court, 2016(1) RLW 693
(Raj.); Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672;
Preeti Jain v. Kunal Jain, AIR 2016 Raj 153; Kethana Lokesh v.
Rahul R. Bettakote, 2024 SCC OnLine Kar 6368; Jil v. State of
Gujarat, 2024 SCC OnLine Guj 4363; Essaki Ammal @ Chitra v.
Veerabhadra @ Kumar, 2012 (4) CTC 743; Havovi Kersi Sethna v.
Kersi Gustad Sethna, 2011 SCC OnLine Bom 120; Abhishek
Ranjan v. Hemlata Chaubey, Misc. Petition No. 1300/2023
decided on 29.08.2023; Saroj v. Aashish Yadav, Misc. Petition No.
1422/2024 decided on 02.08.2024; Ram Talraja v. Sapna Talreja,
Misc. Petition No. 949/2022 decided on 26.04.2022; Aasha Lata
Soni v. Durgesh Soni, 2023 SCC OnLine Chh 3959; Neha v. State
of Haryana, 2020 SCC OnLine P&H 4469; Dharmesh Sharma v.
Tanisha Sharma, 2024 SCC OnLine HP 5208; Deepali v. Praveen,
2023 : KHCD : 11968; Norendra Nath Mozumdar v. State, AIR
1951 Cal 140; Vilas Raghunath Kurhade v. State of Maharashtra,
2010 SCC OnLine Bom 1967; Appu Alias Ayyanar Padayachi v.
State, AIR 1971 Mad 194; Nawab Howladar v. Emperor, 1913
SCC OnLine Cal 447; RIT Foundation v. Union of India, 2022 SCC
OnLine Del 1404; S.J. Choudhary v. State, 1984 SCC OnLine
Del 185; Essaki Ammal @ Chitra v. Veerabhadra @ Kumar, 2012
SCC OnLine Mad 2093 – referred to.
Doker v. Hasler (1824) 171 E.M. 992 – referred to.

Books and Periodicals Cited
Sarkar’s Law of Evidence, 20th Edition, Volume 2 – referred to.

List of Acts
Constitution of India; Evidence Act, 1872; Hindu Marriage Act,
1955; Family Courts Act, 1984; Delhi Family Courts Rules, 1996;
Delhi Family Courts (Amendment) Rules, 2024.
614 [2025] 7 S.C.R.

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List of Keywords
Marital discord; Memory cards/chips of the mobile phones;
Compact disc (CD); Transcript of conversations recorded; Electronic
instruments; Admissibility of tape recordings; Conversations
between husband and wife; Right to privacy; Facet of right to
life; Communications during marriage; Doctrine of privileged
communications; Compellability and permissibility; Secretly
obtained evidence; Best evidence available; ‘Common law rights’;
Fundamental rights; Relationship between citizen and State; Right
to privacy against private bodies; ‘Negative’ and ‘positive’ freedoms;
Vertical or horizontal effect; Divorce; Secretly recorded telephonic
conversation of spouse; Admissibility in evidence.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9489 of 2025
From the Judgment and Order dated 12.11.2021 of the High Court
of Punjab & Haryana at Chandigarh in CR No. 1616 of 2020

Appearances for Parties
Ms. Vrinda Grover (Amicus Curie ), Ms. Devika Tulsiani, Soutik
Banerjee, Yash S.Vijay, Afeef Mohammed.
Advs. for the Appellant:
Ankit Swarup, Nitin Sood, Neelmani Pant, Ms. Vidisha Swarup,
Rishi Bhargava.
Advs. for the Respondent:
Gagan Gupta, Sr. Adv., Ananta Prasad Mishra, Jasbir Singh,
Saurabh Gupta.

Judgment / Order of the Supreme Court

Judgment

Nagarathna, J.

Leave granted.
2. 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.
[2025] 7 S.C.R. 615

Vibhor Garg v. Neha

Factual Background:
3. 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
616 [2025] 7 S.C.R.

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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:
[2025] 7 S.C.R. 617

Vibhor Garg v. Neha

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
618 [2025] 7 S.C.R.

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detailed submissions on the different facets of the issue facing
this Court in this present case.

Submissions:
4. We have heard the learned counsel for the appellant Sri Ankit Swarup;
learned senior counsel for the respondent Sri Gagan Gupta; and
the learned amicus curiae Ms. Vrinda Grover. We have perused the
material on record.

Submissions of Amicus Curiae:
4.1 The learned amicus has submitted that with the increase
in accessibility to technology, covert recording of audio and
video conversations has become an easier option for parties
which would have direct implications for the nature and kind of
evidence that will be presented before the law courts. The issue
before this Court regarding admissibility of covertly recorded
communications between spouses in matrimonial proceedings
lies at the intersection of rights emanating from Article 21 of the
Constitution of India, the erstwhile Indian Evidence Act, 1872
(“Evidence Act”, for short) and the F.C. Act which requires all
three Acts to be harmoniously construed in the interest of justice.
4.2 The learned amicus submitted with reference to the provisions of
the F.C. Act that an interpretation which incentivises surveillance
and covert recording of interactions and communications without
the consent and knowledge of the other married partner militates
against the letter and spirit of conciliation, which is the central
objective of the statute as stated in the preamble to the F.C.
Act. That a conjoint reading of Section 122 of the Evidence Act
and Section 14 of the F.C. Act shows that there is no explicit
legal bar on covertly recorded audio/video recordings being
produced as evidence in proceedings between parties to the
marriage. However, certain considerations, including the avowed
objective of the law to promote conciliation between parties
to a marriage, the deleterious impact of covert recording and
surveillance on matrimonial relations and the breach of the right
to privacy of the spouse subjected to covert recording warrant
that these elements of law, procedure, rights and public interest
be harmonised in the interest of justice.
[2025] 7 S.C.R. 619

Vibhor Garg v. Neha

4.3 Learned amicus has brought to our attention the divergent
views taken by various High Courts on the issue of admissibility
of evidence with respect to the recording of conversations in
proceedings between a husband and wife.
4.4 As per the compilation of case law submitted by the learned
amicus for the perusal of this Court, the High Courts in the
following cases have allowed the communication between the
parties and other private information to be placed on record or
summoned as evidence:
i. Deepti Kapur vs. Kunal Julka, 2020 SCC OnLine Del 672
ii. Preeti Jain vs. Kunal Jain, AIR 2016 Raj 153
iii. Kethana Lokesh vs. Rahul R. Bettakote, 2024 SCC OnLine
Kar 6368
iv. Jil vs. State of Gujarat, 2024 SCC OnLine Guj 4363
v. Essaki Ammal @ Chitra vs. Veerabhadra @ Kumar, 2012
(4) CTC 743
vi. Havovi Kersi Sethna vs. Kersi Gustad Sethna, 2011 SCC
OnLine Bom 120
4.5 However, the High Courts in the following cases have disallowed
production of phone call recordings, text messages and other
private materials as evidence:
i. Anurima @ Abha Mehta vs. Sunil Mehta s/o Chandmal,
(2016) 2 RCR (Civil) 773
ii. Abhishek Ranjan vs. Hemlata Chaubey, Misc. Petition No.
1300/2023 decided on 29.08.2023
iii. Saroj vs. Aashish Yadav, Misc. Petition No. 1422/2024
decided on 02.08.2024
iv. Ram Talraja vs. Sapna Talreja, Misc. Petition No. 949/2022
decided on 26.04.2022
v. Aasha Lata Soni vs. Durgesh Soni, 2023 SCC OnLine
Chh 3959
vi. Rayala M. Bhuvaneswari vs. Nagaphanender Rayala, AIR
2008 AP 98
620 [2025] 7 S.C.R.

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vii. Deepinder Singh Mann vs. Ranjit Kaur, 2014 SCC OnLine
P&H 4826
viii. Tripat Deep Singh vs. Paviter Kaur, 2018 (3) RCR (Civil) 71
ix. Neha vs. State of Haryana, 2020 SCC OnLine P&H 4469
x. Vishal Kaushik vs. Family Court and Anr., 2016(1) RLW
693 (Raj.)
xi. Dharmesh Sharma vs. Tanisha Sharma, 2024 SCC OnLine
HP 5208
4.6 Therefore, in light of the above propositions, the learned 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.
Some factors suggested by the learned amicus for providing
guidance in the exercise of judicial discretion are enumerated
as follows:
a) A proximate and temporal nexus of the audio/video
recording to the facts in issue or relevant facts.
b) The intention of defaming, harassing or prejudicing the
spouse, or prolonging the litigation by placing on record
the audio/video recording.
c) Burden of proof on the party producing the covert recording
to demonstrate that it is the least restrictive and intrusive
method of proving the claim, in line with the doctrine of
proportionality.
d) Exercise of care and caution while giving weightage to
such evidence by considering the context in which the
conversation happened and was recorded covertly by
one of the parties.
e) Control, ownership and access that each party to the
marriage has to electronic recording devices since the
socio-economic differential between parties to the marriage
based on gender may have a direct bearing on their
ability, capacity and opportunity to make covert audio/
video recordings.
[2025] 7 S.C.R. 621

Vibhor Garg v. Neha

f) Authenticity and accuracy of the recordings is also an
important factor, since the electronic audio/video recordings
are highly vulnerable to manipulation.
However, while dealing with the issue of determining the
authenticity of the audio/video recordings, the learned amicus
sounded a note of caution that this might increase the burden
on the already scarce Forensic Science Laboratory (FSL)
resources and lead to delay in the proceedings.
4.7 Lastly, it was submitted that specific directions are required to
ensure that the audio/video recordings are filed, maintained
and stored in a manner which safeguards the privacy of parties
before the Family Court. Reliance was placed on the recently
notified Delhi Family Courts (Amendment) Rules, 2024, which
inserted Chapter VI, Rule 17 in the existing Rules, with regard
to “protecting the privacy of parties or persons”. The said
amendment prohibits parties from extracting in the pleadings the
contents of a document which is of a sensitive nature and which
is likely to affect the right to privacy or cause embarrassment,
without the leave of the court and “a document” is said to include
the electronic recordings as well. Further, the Family Court has
been directed to keep in view the requirements of protecting
the right to privacy and dignity of parties while applying the
Rules to a given situation.
4.8 Therefore, it was suggested by the learned amicus that this
Court may pass appropriate directions for exercise of judicial
discretion under Section 14 of the F.C. Act and in the interim,
consider directing all the States and Union Territories to adopt
and follow the mandate under Chapter VI Rule 17 of the Delhi
Family Courts Rules, 1996.

Submissions on behalf of the Appellant:
5. Learned counsel Sri Ankit Swarup appeared for the appellant-husband
and urged that the impugned order ought to be set aside. It was
submitted by the learned counsel that in matrimonial proceedings
involving allegations of cruelty, the parties are bound to recreate issues
and events which were otherwise confined to the matrimonial home
and the bedroom and away from the public eye. These proceedings
involve a discussion on the aspects of the private married life of
622 [2025] 7 S.C.R.

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parties. Often in such 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 the other spouse and the appellant herein would be
unsuccessful in proving cruelty of the respondent and thereby be
deprived from seeking divorce before the Family Court.
5.1 It was submitted that as per the exception contained in Section
122 of the Evidence Act, the communication between married
persons can be disclosed in matrimonial proceedings like
divorce. Further reliance was placed on Sections 14 and 20 of
the F.C. Act to contend that the objective of these overriding
provisions is to secure the right to fair trial of married persons and
to effectively deal with the private dispute between the parties
and that is why these provisions allow the Family Courts to
deviate from the strict rules of evidence and admit into evidence
materials that are necessary for the adjudication of the dispute.
While the respondent has taken the defence of right to privacy,
it is not an absolute right and has to be balanced with the right
to fair trial of the appellant.
5.2 Learned counsel for the appellant drew our attention to the
judgments rendered by different High Courts to contend that
right to privacy cannot be a defence to shun relevant evidence in
the form of audio/video recordings or some other technologically
collected private data. Apart from the High Court judgments
which have allowed the evidence of recorded conversations
and private information between the spouses and which
have been cited by the learned amicus before us, learned
counsel for the appellant placed reliance on a judgment of the
Karnataka High Court, Dharwad Bench in Deepali vs. Praveen,
2023:KHC-D:11968, wherein also the High Court allowed a CD
containing video recording and WhatsApp messages sent by
the wife to be placed on record by the husband in a divorce
proceeding, in light of the exception carved out under Section
122 of the Evidence Act. In addition, learned counsel also
placed reliance on a judgment of the Calcutta High Court in
Norendra Nath Mozumdar vs. State, AIR 1951 Cal 140, to
contend that the protection under Section 122 of the Evidence
[2025] 7 S.C.R. 623

Vibhor Garg v. Neha

Act cannot exist in suits between married persons when one
of the spouses is in litigation against the other, for, to prevent
disclosure in that event will be to defeat justice.
5.3 Learned counsel for the appellant also placed before us the
recommendation made by the Law Commission in its 69th
report with respect to Section 122 of the Evidence Act, wherein
it had recommended creating an explicit exception to the bar
of Section 122 in the proceedings between married persons.
Reliance was also placed on a judgment of the Bombay High
Court in Vilas Raghunath Kurhade vs. State of Maharashtra,
2010 SCC OnLine Bom 1967, wherein the court suggested
an appropriate amendment to Section 122 of the Evidence Act
to check the blanket ban on any type of communication which
may not withstand the requirements of the modern times so as
to do complete justice in a case.
5.4 Therefore, learned counsel for the appellant submitted that the
appellant may be allowed to place the recorded conversations
before the Family Court through his supplementary affidavit of
examination-in-chief and the same may be considered by the
Family court in light of the relevance of the evidence led and
the cross-examination of the appellant with respect to the same.

Submissions on behalf of the Respondent:
6. Learned senior counsel Sri Gagan Gupta who appeared for the
respondent-wife, with reference to her counter affidavit, questioned
the authenticity and admissibility of the purported conversations
sought to be produced. It was submitted that the appellant had
not mentioned anything about these recorded conversations in his
pleadings and therefore, he cannot be allowed to bring in evidence
something that does not have any foundational basis in any of the
pleadings hereinbefore.
6.1 It was further 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. The same
is a unilateral act of one of the spouses without knowledge or
consent of the other spouse and in the present case, the same
624 [2025] 7 S.C.R.

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relates to the years 2010 and 2016 and has been deliberately
delayed to be filed in Court as late as in July 2019 and thus
causes serious prejudice to the respondent herein inasmuch as
while the appellant was as per his own admission indulging in
call recording/phone tapping ever since 2010, the respondent
cannot be expected to have complete memory of such old
conversations between the husband and wife which were not
documented. That the respondent would have no means to
verify the genuineness and completeness of the said purported
phone conversations. Thus, even if the respondent can be said
to have the right of cross-examination or of forensic examination
of the purported material, the said right would be an illusory
right in the facts of this case.
6.2 Learned senior counsel for the respondent has stressed upon
the right to privacy of the respondent and has highlighted that
the conversations sought to be produced were recorded without
the knowledge or consent of the respondent. Marriage is said to
be a sacrosanct relationship and it is not expected of spouses
either to illegally record the conversations between them or to
produce them as evidence. Permission to lead such evidence
would amount to licensing a married couple to betray the trust
at any given moment and judicial recognition of the same
would result in every married couple doubting their partner and
becoming careful and apprehensive and running a risk of every
conversation being recorded which could not be the objective
behind either Section 122 of the Evidence Act, or Sections 14
and 22 of the F.C. Act.
6.3 In light of the same, learned senior counsel submitted that the
unilateral and illegal recording of a private conversation by one
spouse without informing the other spouse cannot be said to be
a “communication” at all and thus any such purported evidence of
any such alleged conversation is not admissible in law. Therefore,
as per the learned senior counsel, there is no infirmity in the
impugned judgment and the same ought to be upheld in entirety.

Points for consideration:
7. Having heard learned counsel for the appellant and learned senior
counsel for the respondent as well as learned amicus, the following
points would arise for our consideration.
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a) Whether the High Court was justified in setting aside the order
of the Family Court and thereby declining permission to the
appellant herein to corroborate his evidence in the form of what
has been recorded on his mobile phone and by means of a
compact disc (CD) and transcription of the same containing the
communication made by the respondent-wife to the appellant
husband in order to prove his case for seeking divorce?
b) What order?

Section 122 of the Evidence Act:
8. Section 122 of the Evidence Act reads as follows:
“122. Communications during marriage.—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.”
(underlining by us)

8.1 In the case of M.C. Verghese vs. T.J. Ponnan, AIR 1970 SC
1876, the three-Judge Bench of the Supreme Court, while
dissecting the provision, held as follows:
“13. …The section consists of two branches – (1) that
a married person shall not be compelled to disclose
any communication made to him during marriage
by his spouse; and (2) that the married person shall
not except in two special classes of proceedings be
permitted to disclose by giving evidence in Court
the communication, unless the person who made it,
or his representative in interest, consents thereto.”
(underlining by us)

8.2 In the above case, this Court was dealing with a complaint of
defamation by the appellant therein (Verghese). The appellant
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therein claimed that the respondent therein (Ponnan) had written
some letters to his wife (Rathi), which contained defamatory
material against the appellant. The appellant claimed to be
in possession of those letters and sought to make a case of
defamation based on those letters. The same was being objected
to on the ground that the communication in the letters was
barred under Section 122 of the Evidence Act. This Court, while
ruling in favour of the appellant therein, observed as follows:
“14. A prima facie case was set up in the complaint
by Verghese. That complaint has not been tried and
we do not see how, without recording any evidence,
the learned District Magistrate could pass any order
discharging Ponnan. Section 122 of the Evidence
Act only prevents disclosure in giving evidence in
court of the communication made by the husband to
the wife. If Rathi appears in the witness box to give
evidence about the communications made to her
husband, prima facie the communications may not
be permitted to be deposed to or disclosed unless
Ponnan consents. That does not, however, mean
that no other evidence which is not barred under s.
122 of the Evidence Act or other provisions of the
Act can be given.
15. In a recent judgment of the House of Lords
Rumping v. Director of Public Prosecutions, (1962)
All E.R. 256 Rumping the mate of a Dutch ship was
tried for murder committed on board the ship. Part
of the evidence for the prosecution admitted at the
trial consisted of a letter that Rumping had written to
his wife in Holland which amounted to a confession.
Rumping had written the letter on the day of the killing,
and had handed the letter in a closed envelope to
a member of the crew requesting him to post it as
soon as the ship arrived at the port outside England.
After the appellant was arrested, the member of the
crew handed the envelope to the captain of the ship
who handed it over to the police. The member of the
crew, the captain and the translator of the letter gave
evidence at the trial, but the wife was not called as
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witness. It was held that the letter was admissible
in evidence. Lord Reid, Lord Morris of Borth-Y-Gest,
Lord Hodson and Lord Pearce were of the view that
at common law there had never been a separate
principle or rule that communications between a
husband and wife during marriage were inadmissible
in evidence on the ground of public policy. Accordingly
except where the spouse to whom the communication
is made is a witness and claims privilege from
disclosure under the Criminal Evidence Act. 1898, (of
which the terms are similar to S. 122 of the Indian
Evidence Act though not identical), evidence as to
communications between husband and wife during
marriage is admissible in criminal proceedings.
16. The question whether the complainant in this case
is an agent of the wife because he has received the
letters from the wife and may be permitted to give
evidence is a matter on which no opinion at this stage
can be expressed. The complainant claims that he
has been defamed by the writing of the letters. The
letters are in his possession and are available for
being tendered in evidence. We see no reason why
inquiry into that complaint should, on the preliminary
contentions raised, be prohibited. If the complainant
seeks to support his case only upon the evidence of
the wife of the accused, he may be met with the bar
of S. 122 of the Indian Evidence Act. Whether he will
be able to prove the letters in any other manner is
a matter which must be left to be determined at the
trial and cannot be made the subject-matter of an
enquiry at this stage.”
(underlining by us)

8.3 Another complexity posed before this Court in the aforesaid case
was that by the time the matter reached this Court, the wife of
the respondent therein had already taken a decree of divorce
from the respondent therein and therefore it was prayed that
the bar under Section 122 would no longer apply. This Court
negated the said argument as under:
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“18. …When the letters were written by Ponnan to
Rathi, they were husband and wife. The bar to the
admissibility in evidence of communications made
during marriage attaches at the time when the
communication is made, and its admissibility will be
adjudged in the light of the status at the date and
not the status at the date when evidence is sought
to be given in court.”
(underlining by us)

8.4 In the aforesaid case, this Court held that Section 122 only
prevents disclosure in giving evidence by the other spouse
in court of the communication made. It does not mean that
other evidence, which is not barred under this Section or other
provisions of the Act, is barred. The latter part of the Section
states the exceptions to the rule of privilege, namely, (a) in suits
between married persons (i.e., husband and wife), i.e., divorce
proceedings or other cases, or (b) proceedings in which one
of them is prosecuted for any crime against the other. In these
cases, there is no privilege.
8.5 In the case of Ram Bharosey vs. State of U.P., (1954) 1 SCC
284, a three-Judge Bench of this Court had to deal with the
deposition of PW-2, who was the wife of the appellant-accused
therein. In her deposition, she had stated about seeing the
appellant come down the roof of the house in the morning,
taking bath and then having a conversation with her. The part of
the wife’s statement where the appellant told her that he would
give her jewels and that he had gone to the middle house to
get them were held to be inadmissible under Section 122 of the
Evidence Act but the part of the deposition that talked about
the wife seeing the appellant in the morning was held to be
admissible. The Court observed as follows with reference to the
deposition of the wife in light of Section 122 of the Evidence Act:
“3. …The middle house referred to in this deposition
is the house in which Manna was living. The argument
of the appellant is that his statements to P. W. 2 that
he would give her jewels, and that he had gone to
the middle house to get them were inadmissible
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under Section 122 of the Evidence Act, being
communications made to his wife. This is plainly so,
and the Courts below ought not to have taken this
evidence into consideration.
xxx
6. Firstly, there is the evidence of P. W. 2 that the
accused was seen in the early hours of the 27th
May 1952 while it was still dark, coming down the
roof of his house, that he went to the bhusha kothri
and came out again and had a bath and put on the
dhoti again. This is not inadmissible under Section
122, as it has reference to acts and conduct of the
appellant and not to any communication made by
him to his wife.”
(underlining by us)

8.6 In the case of Appu Alias Ayyanar Padayachi vs. State, AIR
1971 Mad 194, the Madras High Court was dealing with a
confession made by the appellant-accused therein to his wife
which was in the presence of other witnesses. While the wife
was not allowed to disclose that communication due to the
bar under Section 122, it was allowed to be disclosed by the
other witnesses present at the scene. The Madras High Court
observed as follows:
“6. But, as observed in Queen v. Donaghue,
(1899) ILR 22 Mad 1 at page 3, the communication
between a husband and his wife is not protected
if it can be proved without their assistance, for, in
these communications there is no question of any
compulsion or permission to the wife or the husband
to disclose it. The section protects the individuals
and not the communication of it. Viscount Radcliffe
in Rumping v. Director of Public Prosecutions, 1962-3
All ER 256 at 265 observed that such communications
could be proved by some other form of testimony as
that of a witness who had overheard their confidence
or by the production of a letter which contained the
confidence, but had passed into other hands. In other
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words, the law does not protect the communications
as such, but only excludes the spouse from being
a witness to prove it. Thus marital communications
could be proved by the evidence of the over-hearers,
even though the wife herself could not have been
called to testify to them. The decision in R. v. Smithies,
1832-5 C and P 332, R. v. Simons, 1834-6 C and P
540 and R. v. Bartlett, 1837-7 C and P 832 are to
this effect. In 1834-6 C and P 540, two over-hearers
were allowed to prove at the trial what the husband,
who was tried, had told his wife in confidence.”
(underlining by us)

8.7 Section 122 of the Evidence Act deals with rule of privilege
protecting disclosure of all communications between persons
married to one another made during marriage, except in certain
cases, i.e., in litigation between themselves. According to
Sarkar’s Law of Evidence, 20th Edition, Volume 2, the provisions
of the Section may be summarised as under:
(i) The privilege extends to all communications made to a
person during marriage, by any person to whom he or
she has been married, but not to communications before
marriage.
(ii) The communication need not be confidential. The rule
applies to communications of every nature.
(iii) The rule of privilege applies equally whether or not the
witness or his or her spouse is a party to the proceeding.
It extends to all cases, i.e., to cases between strangers
as well as to suits or proceedings in which the husband
or wife is a party.
(iv) The privilege extends to communications made to a spouse
and not to those made by a spouse. But the privilege is
conferred not on the witness (unless the witness happens
to be the spouse who made the communication), but on
the spouse who made the communication; the witness
cannot therefore waive it at his or her will, nor can the
court permit disclosure even if he or she is willing to do it
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(Nawab Howladar vs. Emperor, 1913 SCC OnLine Cal
447. It is only the spouse who made the communication
or his or her representative in interest who can consent
to give up the privilege.
8.8 From a reading of the above section and the judgments, the
following principles and interpretations can be culled out:
(i) Unlike Section 120 of the Evidence Act, which deals with
competency of a husband or a wife to be a witness in a
civil or criminal proceeding involving the other, Section 122
of the said Act deals with the admissibility of privileged
communications made by a married person to a partner
during the subsistence of the marriage.
(ii) Section 122 of the Evidence Act is worded in two parts –
one, dealing with ‘compellability’ and the other, dealing
with ‘permissibility’. These two parts are separated by a
semi-colon, which shows that the two parts are separate
and have to be read disjunctively.
(iii) The first part deals with ‘compellability’. Here, if one of the
spouses is not willing to disclose the communication made
to the other, the latter cannot be compelled by any court,
authority or person, which by law is otherwise competent
to compel the person to give evidence, to disclose what
their married partner communicated to the said spouse
during the time when the marriage was subsisting. This
is a blanket bar which cannot be relaxed in any situation.
This protects the right to privacy between a married couple.
(iv) The second part deals with ‘permissibility’. This is an
even greater restriction than the first part. Here, even if
one of the spouses is willing to disclose the communication
made to him/her, the Court still cannot permit it to be
taken as evidence, unless the other spouse who made
that communication, or their representative-in-interest,
consents to the disclosure of such communication. In other
words, without the consent of the spouse who made the
communication, the court cannot permit the other spouse
to disclose that communication. Another way of looking
at it is that if one of the spouses is willing to disclose the
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communication, then it is not the court that can give consent
to the disclosure but it is actually the other spouse who
made that communication who can consent to disclosing it.
(v) The second part, relating to ‘permissibility’, is then followed
by two exceptions which are –
a. proceedings in suits between married persons,
b. proceedings in which one married person is
prosecuted for any crime committed against each
other.
Therefore, it means that in these two given scenarios,
the requirement of taking consent from the other spouse
before being permitted to disclose the communication is
done away with.
[Ref.: M.C. Verghese vs. T.J. Poonan, (1969) 1 SCC 37]
(vi) The provision is neither an absolute bar on any person nor
on the communication. It puts a specific and limited bar
on a married person from disclosing the communication
made to him/her by his/her spouse during the subsistence
of a marriage between them.
(vii) If the marriage was subsisting at the time when the
communications were made, the bar prescribed by Section
122 of the Evidence Act will operate. The bar to the
admissibility in evidence of communications made during
marriage attaches at the time when the communication is
made and its admissibility will be adjudged in light of the
status on the date and not the status at the date when
evidence is sought to be given in court.
(viii) The provision applies vis-à-vis a legally wedded wife and
not to any other kind of relationship. [Ref.: Shankar vs.
State of T.N, (1994) 4 SCC 478]
(ix) The prohibition of disclosure under the Section applies
even after the marriage is no longer subsisting, if the
“communication”, whose disclosure is sought to be
prohibited, is only the one that was made during the
subsistence of the marriage.
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(x) The bar from disclosure under the provision applies to the
spouse to whom the communication was made and not to
the spouse who made the communication. For example, if
X and Y are married, then X cannot disclose what Y told
to her and Y cannot disclose what X told to him. But X
can disclose what she told to Y and Y can disclose what
he told to X.
(xi) Hence, under this Section, it is only the spouses who
are barred from disclosing what was said to them by the
other spouse. The bar is not on other persons like the
family members, kith and kin or third-parties who may
have heard or overheard that communication. [Ref.:
Appu vs. The State, AIR 1971 Mad 194]
(xii) The bar does not also apply to the communication made
to a third party even if the same communication was made
to that third party which was made to the spouse. For
example, X tells something to spouse Y. X tells the same
thing to friend Z. Then Y is barred under this section to
disclose that communication, but not Z.
(xiii) The use of the blanket word “any communication” means
that the bar in the Section applies to disclosing all
kinds of communication and not just private/confidential
communication. The communication may also be oral or
written or sign language.
(xiv) However, the use of the word “communication”,
followed by the phrase “made to him”, denotes that the
communication here should not be read as ‘conversation’
or a ‘dialogue’. When communication is made to a person,
it would mean that a message or information has been
conveyed by one person to the other.
This can be understood by an illustration. Suppose in a
trial for the murder of a person ‘Z’, the husband ‘Y’ is being
tried as an accused. The wife ‘X’ comes to the witness box
to depose about the conversation that happened between
X and Y on the day of the crime. X deposes as under:
“On that night, when my husband Y came back
home, his clothes were drenched in blood.
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I was scared to see that. I asked Y, “What
happened? Whose blood is this? Did you
kill someone?” Y replied back in anger and
said, “Z had been troubling me for a long time,
so today I killed him.” Shocked to hear this, I
further asked “Where is the body? What did
you kill him with?” Y replied in a whispering
tone and said, “I killed him using a knife and
buried the body in the park.”
(underlining by us)

Now, in the above deposition, the part in plain italics
was what the wife herself thought or experienced. That
part is not barred by Section 122 of the Evidence Act.
Further, the part in bold was what the wife told to the
husband. That part is also not barred by Section 122.
But the underlined part was the communication that
was made by the husband to the wife. Therefore, under
Section 122, the wife is barred from disclosing the said
communication without the consent of the husband,
and the Court cannot permit the wife to disclose that
communication and that part of the deposition would not
form part of the record. The Court will have to delete that
part from the deposition.
(xv) The bar in the Section is with respect to “disclosure”
of ‘communication’ by the ‘spouse’, and not to that
“communication” per se. The spouse cannot be
compelled or permitted to get into the witness box and
disclose the communication, but that communication may
be brought before the court through any other means.
The bar under Section 122 of the Evidence Act does
not mean that no other evidence can be given for that
communication which is not barred under Section 122
or other provisions of the Evidence Act. For example,
husband ‘Y’ wrote a letter to wife ‘X’, telling her that he
has committed a murder. Now as per Section 122 of
the said act, the wife ‘X’ is barred from disclosing this
communication. But if during investigation of the crime,
the police find these letters and bring them before the
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Court in evidence then the bar of Section 122 of the
said Act will not be attracted.
[Ref.: Appu vs. The State, AIR 1971 Mad 194, and M.C.
Verghese vs. T.J. Poonan, (1969) 1 SCC 37]
(xvi) The bar under Section 122 of the Evidence Act is limited
to disclosing of communications made to that spouse
but is not attracted for the acts that were seen by the
spouse or experienced by the spouse. For example, when
husband ‘Y’ comes to wife ‘X’ and tells her that “I killed
Z”, then X is barred from disclosing this communication.
But X is not barred from disclosing if she secretly saw
Y killing Z.
[Ref.: Ram Bharosey vs. State of U.P., (1954) 1 SCC
284]
9. The issue that arises for our consideration in this case is, whether
the conversation between spouses secretly recorded by one of them
could be permitted to be made admissible in evidence. However, this
one issue has three elements which this Court will have to address:
a) Whether a secretly recorded conversation can be permitted to
be given in evidence?
b) Whether in light of the Evidence Act and the F.C. Act, a
conversation between spouses can be permitted to be given
in evidence in a proceeding for divorce?
c) Whether such a recorded evidence should be disallowed solely
on the ground that it is violative of the privacy of one of the
spouses?
9.1 The first issue deals with the aspect of the validity of discreetly
recorded digital evidence. The second issue deals with spousal
privilege under the Evidence Act and the relaxation of the rules
of evidence by the F.C. Act. The last issue deals with spouse’s
right to privacy and the ambit of such privacy.

Validity of secretly obtained evidence:
9.2 This Court has often had the occasion to deal with the issue
of using illegal and immoral ways to procure evidence against
a person without the knowledge of the person. It is often
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alleged by accused persons that the investigation authorities
did not follow legal methods and procedures to obtain the
evidence against them. Sometimes recording devices and
phone-tapping mechanisms are resorted to for the purpose
of collecting relevant evidentiary material. In such cases, the
view taken by this Court has been that merely the fact that an
evidence was not obtained strictly in accordance with law does
not absolutely bar the admissibility of such an evidence. The
Court, while appreciating such evidence, may have to tread
with caution and be assured about the accuracy and reliability
of such evidence but the said evidence cannot be said to be
irrelevant and/or inadmissible merely on the argument that it
was illegally obtained.
9.3 In the case of Yusufalli Esmail Nagree vs. The State Of
Maharashtra, AIR 1968 SC 147 (“Yusufalli Nagree”), a three-
judge bench of this Court was dealing with a case of corruption
wherein a conversation was secretly recorded by the police by
laying a trap and concealing a microphone in the room of the
accused. The conversation was recorded on a tape recorder.
The admissibility of this recorded conversation was objected
to on the ground that this was recorded without the knowledge
of the accused and the accuracy of the conversation recorded
on the tape recorded was challenged. This Court, speaking
through Bachawat, J., rejected these arguments made by the
accused. While this Court refused to lend its approval to the
police practice of tapping telephone wires and setting up hidden
microphones for the purpose of tape recording, it held that the
fact that the tape recording was done without the knowledge
of the accused is not in itself an objection to its admissibility
in evidence because the accused in this case was free to talk
or not to talk; his conversation was voluntary and there was
no element of duress, coercion or compulsion. It was further
observed that the imprint on the magnetic tape is the direct effect
of the relevant sounds. Like a photograph of a relevant incident,
a contemporaneous tape record of a relevant conversation is a
relevant fact and is admissible under Section 7 of the Evidence
Act. This Court further observed with respect to the balance
to be struck between the relevance and caution while dealing
with a tape-recorded conversation as follows:
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“6. … If a statement is relevant, an accurate
tape record of the statement is also relevant and
admissible. The time and place and accuracy of the
recording must be proved by a competent witness
and the voices must be properly identified. One of
the features of magnetic tape recording is the ability
to erase and re-use the recording medium. Because
of this facility of erasure and re-use, the evidence
must be received with caution. The court must be
satisfied beyond reasonable doubt that the record
has not been tampered with.”
(underlining by us)

9.4 In furtherance to the above view came the judgment of this
Court in the case of R. M. Malkani vs. State of Maharashtra,
(1973) 2 SCR 417 (“R.M. Malkani”), wherein the validity of a
tape-recorded conversation was in question. This Court, while
allowing the tape-recorded conversation to be admitted in
evidence, observed the following:
“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. It is
res gestae. It is also comparable to a photograph of
a relevant incident. The tape recorded conversation
is therefore a relevant fact and is admissible under
section 7 of the Evidence Act.”
9.5 The aforesaid test laid down by this Court has become a locus
classicus on the issue of determining the admissibility of a
tape-recorded conversation. 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
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admissibility of the evidence, as laid down by the Evidence Act
and read into the statutory provisions by this Court.

Applicability of Section 122 of the Evidence Act to a proceeding
for divorce:
10. As explained above, Section 122 of the Evidence Act deals with two
parts – compellability and permissibility. The facts of the present
case concern only the applicability of the second part of Section
122, i.e., the one dealing with permissibility. 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. Therefore, such a privileged
communication is not barred from being disclosed and brought before
the Court and the objection taken by the wife with respect to Section
122 of the Evidence Act is not acceptable.
10.1 Looking at it from another angle, under Section 122 of the
Evidence Act, what is barred in the present case is 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. However, the
overriding exception in the second part of the section with
regard to disclosure in a proceeding between the spouses
would apply; and under the exception, the doctrine of privileged
communication would not apply.
10.2 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
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admissibility while admitting any evidence which they think is
relevant for the adjudication of the dispute at hand. However,
we do not think that adverting to Section 14 of the F.C. Act
is required in the present facts when the Evidence Act itself
permits such a communication to be admitted in evidence
by way of an exception. The powers under Section 14 of the
F.C. Act would normally be resorted to in a scenario where
the Evidence Act creates some prohibition with respect to
relevance or admissibility of any evidence. But if the Family
Court is of the opinion that it is expedient to go beyond the
procedural technicalities of the Evidence Act for adjudicating
the dispute, in such a case, the Family Court is allowed to
take that evidence on record, notwithstanding what is stated
in the Evidence Act. But the exercise of this extraordinary
power under Section 14 of the F.C. Act is not warranted in
this case.
10.3 Some arguments have been made by the learned amicus about
the fact that permitting such an evidence would jeopardise
domestic harmony and matrimonial relationship inasmuch as
it would encourage snooping on the spouse, thereby fracturing
the very objective of Section 122 of the Evidence Act. We do
not think such an argument is tenable. 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 said snooping
cannot be said to be a consequence of the Court admitting
the evidence obtained by snooping. In fact, snooping between
partners is an effect and not a cause of marital disharmony.
The privacy of communication exists between spouses, as has
been recognised by Section 122, but the said right of privacy
cannot be absolute and has to be read also in light of the
exception provided in Section 122 of the Evidence Act. When
Section 122 itself recognises and protects spousal privacy
in the first part of the Section then, the said right has to be
construed in terms of Section 122 only and has to be subject
to the exception contained therein. In other words, when the
right to privacy of communication between spouses is the very
basis of Section 122 then the exceptions to these should also
flow only from Section 122 of the Evidence Act.
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10.4 During the years when this Court decided cases such as
Yusufalli Nagree and R.M. Malkani, bugging, snooping,
tapping were considered acts that had a clear element
of invading the privacy of an individual for the purpose of
gathering concrete evidence. Devices like tape-recorders
and microphones were carefully placed in a space wherein
the conversations could be secretly recorded and the entire
process was not as easy as clicking a button on a mobile phone.
Even in those times, the Courts have encouraged the need
for having better evidence for adjudication than to close the
doors of technology and refuse to accept the material in front
of them on the mere ground that privacy would be breached.
10.5 On the other hand, 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.
Yet, what the said legislation remarkably conveys is that the
purpose of the law of evidence is not to create barriers but to
break them to ensure that a clearer picture is created in the
mind of the judge so as to decide a dispute before it. This is
why when the evidence is not direct, the legislation allows a
judge to rely on circumstantial evidence; it allows presumptions
of fact and law and adverse inferences to be drawn from the
conduct of parties and witnesses so that a fair and reasonable
conclusion can be reached from the material on record. Now,
in today’s day and age, when the technological advancement
has made it easier to record and recreate moments of past
and present for reference in future, then to say that such better
forms of evidence and material would not be admissible on
the ground of they being in violation of the right to privacy
would amount to defeating the very object of the Evidence
Act. That was the reason for the Parliament to amend the
Evidence Act by incorporating Section 65B which specifically
deals with electronic evidence.
10.6 Section 65A deals with special provisions as to evidence
relating to electronic records. The contents of electronic
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records may be proved in accordance with the provisions of
Section 65B. Section 65B of the Evidence Act speaks of the
admissibility of the electronic records. Sections 65A and 65B
read as under:
“65-A. Special provisions as to evidence relating
to electronic record.—The contents of electronic
records may be proved in accordance with the
provisions of Section 65-B.
65-B. Admissibility of electronic records.—
(1) Notwithstanding anything contained in this Act,
any information contained in an electronic record
which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a
computer (hereinafter referred to as the computer
output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied
in relation to the information and computer in
question and shall be admissible in any proceedings,
without further proof or production of the original, as
evidence of any contents of the original or of any
fact stated therein of which direct evidence would
be admissible.
(2) The conditions referred to in sub-section (1) in
respect of a computer output shall be the following,
namely—
(a) the computer output containing the information
was produced by the computer during the
period over which the computer was used
regularly to store or process information for
the purposes of any activities regularly carried
on over that period by the person having
lawful control over the use of the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the
kind from which the information so contained
is derived was regularly fed into the computer
in the ordinary course of the said activities;
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(c) throughout the material part of the said period,
the computer was operating properly or, if
not, then in respect of any period in which
it was not operating properly or was out of
operation during that part of the period, was
not such as to affect the electronic record or
the accuracy of its contents; and
(d) the information contained in the electronic
record reproduces or is derived from such
information fed into the computer in the
ordinary course of the said activities.
(3) Where over any period, the function of storing
or processing information for the purposes of any
activities regularly carried on over that period as
mentioned in clause (a) of sub-section (2) was
regularly performed by computers, whether—
(a) by a combination of computers operating over
that period; or
(b) by different computers operating in succession
over that period; or
(c) by different combinations of computers
operating in succession over that period; or
(d) in any other manner involving the successive
operation over that period, in whatever order,
of one or more computers and one or more
combinations of computers,
all the computers used for that purpose during
that period shall be treated for the purposes of
this section as constituting a single computer; and
references in this section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to give
a statement in evidence by virtue of this section,
a certificate doing any of the following things, that
is to say,—
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(a) identifying the electronic record containing
the statement and describing the manner in
which it was produced;
(b) giving such particulars of any device involved
in the production of that electronic record
as may be appropriate for the purpose
of showing that the electronic record was
produced by a computer;
(c) dealing with any of the matters to which the
conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a
responsible official position in relation to the operation
of the relevant device or the management of the
relevant activities (whichever is appropriate) shall
be evidence of any matter stated in the certificate;
and for the purposes of this sub-section it shall be
sufficient for a matter to be stated to the best of
the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to
a computer if it is supplied thereto in any
appropriate form and whether it is so supplied
directly or (with or without human intervention)
by means of any appropriate equipment;
(b) whether in the course of activities carried on
by any official, information is supplied with a
view to its being stored or processed for the
purposes of those activities by a computer
operated otherwise than in the course of those
activities, that information, if duly supplied to
that computer, shall be taken to be supplied
to it in the course of those activities;
(c) a computer output shall be taken to have
been produced by a computer whether
it was produced by it directly or (with or
without human intervention) by means of any
appropriate equipment.
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Explanation.—For the purposes of this section any
reference to information being derived from other
information shall be a reference to its being derived
therefrom by calculation, comparison or any other
process.”

Section 122 of the Evidence Act and Right to Privacy:
11. Learned amicus as well as learned counsel and learned senior
counsel for the respective parties have relied upon a number of
judgements of the High Courts in support of their rival contentions.
Having regard to the view which we have taken in the matter, we
find that the conclusions arrived at in the case of Preeti Jain vs.
Kunal Jain, AIR 2016 Raj 153; Jil vs. State of Gujarat, 2024 SCC
OnLine Guj 4363; Essaki Ammal @ Chitra vs. Veerabhadra @
Kumar, 2012 SCC OnLine Mad 2093; Havovi Kersi Sethna vs. Kersi
Gustad Sethna, 2011 SCC OnLine Bom 120; Deepti Kapur vs. Kunal
Julka, 2020 SCC OnLine Del 672 are just and proper inasmuch as
tape recorded/digitally recorded conversation between the spouses
was permitted to be let in as evidence in support of the contentions
raised by the parties, having regard to the parameters laid out under
Section 122 of the Evidence Act.
11.1 However, in the cases of Anurima @ Abha Mehta vs. Sunil
Mehta s/o Chandmal, (2016) 2 RCR (Civil) 773; Abhishek
Ranjan vs. Hemlata Chaubey, Misc. Petition No. 1300/2023
decided on 29.08.2023 by High Court of Madhya Pradesh at
Jabalpur Bench; Saroj vs. Aashish Yadav, Misc. Petition No.
1422/2024 decided on 02.08.2024 by High Court of Madhya
Pradesh at Indore Bench; Ram Talraja vs. Sapna Talreja,
Misc. Petition No. 949/2022 decided on 26.04.2022 by High
Court of Madhya Pradesh at Indore Bench; Aasha Lata Soni
vs. Durgesh Soni, 2023 SCC OnLine Chh 3959; Rayala M.
Bhuvaneswari vs. Nagaphanender Rayala, AIR 2008 AP 98;
Deepinder Singh Mann vs. Ranjit Kaur, 2014 SCC OnLine
P&H 4826; Tripat Deep Singh vs. Paviter Kaur, 2018 (3) RCR
(Civil) 71; Neha vs. State of Haryana, 2020 SCC OnLine P&H
4469; Vishal Kaushik vs. Family Court, 2016(1) RLW 693 (Raj.);
Dharmesh Sharma vs. Tanisha Sharma, 2024 SCC OnLine
HP 5208; and Kethana Lokesh vs. Rahul R. Bettakote, 2024
SCC OnLine Kar 6368 decided on 19.06.2024 passed by
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the High Court of Karnataka at Bengaluru, the High Courts
declined to permit the conversation recorded by one of the
spouses to corroborate the contention as being in violation
of the right to privacy under Article 21 of the Constitution of
India. Hence, it is necessary to dilate upon the contours of the
right to privacy in the context of Article 21 of the Constitution
with reference to the recent dicta of this Court rendered by
Constitution benches.
11.2 In K.S. Puttaswamy (Privacy-9J.) vs. Union of India reported
in (2017) 10 SCC 1, (“Puttaswamy”), Chelameswar and
Bobde JJ. enunciated that the constitutional right to privacy
under Article 21 is limited to the relationship between the citizen
and the State. Bobde J. (as he then was) drew a distinction
between ‘common law rights’ and ‘fundamental rights’ by
observing thus:
“397.…we can dismantle a core assumption of
the Union’s argument: that a right must either be
a common law right or a fundamental right. The
only material distinctions between the two….lie
in the incidence of the duty to respect the right
and in the forum in which a failure to do so can
be redressed. Common law rights are horizontal
in their operation when they are violated by one’s
fellow man, he can be named and proceeded
against in an ordinary court of law. Constitutional
and fundamental rights, on the other hand,
provide remedy against the violation of a valued
interest by the “State”…It is perfectly possible for
an interest to simultaneously be recognised as
a common law right and a fundamental right”.
11.2.1 However, Nariman J. observed that Article 21 was
couched in a negative form in order to interdict
State action that fell afoul of its contours. But right
to privacy being a fundamental right could be both
against the government as well as private individuals.
The discussion in Puttaswamy was restricted to the
right to privacy under Article 21 primarily against
State action.
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11.2.2 Kaul J. suggested horizontal application of the right
to privacy by holding that:
“593...(in) today’s world, privacy is a limit
on the Government’s power as well as the
power of private sector entities”.
Later in the judgement, he concluded that the right to
privacy is a fundamental right, and that it:
“644...is a right which protects the inner
sphere of the individual from interference
from both State and non-State actors”.
Further, once again emphasising that technology has
made it possible for non-State actors to ‘enter citizens’
houses’, he held that:
“646...privacy is one of the most important
rights to be protected both against State
and non-State actors and be recognised as
a fundamental right”.
However, Kaul J began his judgement by
observing that:
“584...(the) right to privacy is claimed qua
the State and non-State actors. Recognition
and enforcement of claims qua non-State
actors may require legislative intervention
by the State”.
He thus recognised that in the status-quo, while
enforcing the right to privacy against private bodies
might be desirable, it was perhaps not yet possible.
11.2.3 The opinion by Chandrachud, J. (as he then was) was
authored on behalf of himself, Khehar J., Agrawal J.
and Nazeer J. Chandrachud J did not dilate as such
on the public-private aspect of the right to privacy as
was done by the other Judges on the Bench. He held
that the protection of privacy as a constitutional right
embodies both ‘negative’ and ‘positive’ freedoms. From
a negative perspective, it protects the individual from
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unwanted intrusions (note that here, Chandrachud J did
not limit it to intrusions by the State). From a positive
perspective, it ‘obliges’ the State to adopt measures
for protecting individuals’ privacy. He then quoted
the entry on the right to privacy in the Max Planck
Encyclopaedia of Comparative Constitutional Law as
an ‘apt’ description of this facet. The entry opined that
the ‘negative’ right to privacy entails protection against
unwanted intrusion by both State and private actors.
Chandrachud J, unlike Bobde J, did not separate
common law and fundamental rights in terms of their
enforceability against separate bodies. Instead, he
merely emphasised that simply because privacy was
a common law/statutory right, it was not proscribed
from also being recognised as a constitutional right.
11.3 Subsequently, in Kaushal Kishor vs. State of U.P. (2023) 4
SCC 1 (“Kaushal Kishore”), one of the questions that a five-
judge Constitution bench decided was whether a fundamental
right under Articles 19 or 21 could be claimed other than
against the State/State instrumentalities. Ramasubramanian,
J., writing for the majority, referred to ‘Horizontal Effect’ as a
constitutional concept, and proceeded to list a number of cases
where the Supreme Court had applied fundamental rights
obligations horizontally. He then opined that in Puttaswamy,
the Supreme Court had framed a ‘tool’ that establishes
guidelines for horizontal application. According to him, this
‘tool’ was expressed in Bobde J’s opinion, the relevant extract
of which has been reproduced above.
11.3.1 Ramasubramanian, J. relied on this separation of
common law rights and fundamental rights to support
his conclusion that Article 19/21 rights can indeed be
enforced against non-State entities. While considering
the question whether a fundamental right under Articles
19 and 21 can be claimed against anyone other than
the State or its instrumentalities, it was clarified that the
question is not about “claim” but about “enforceability”.
The further question whether Part III of the Constitution
has a “vertical” or “horizontal” effect was also considered
and it was observed that wherever constitutional
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rights impact the relations between private individuals,
they are said to have “a horizontal effect”. When a
constitutional right regulates the Government and State
actors in their dealings with private individuals, they
are said to have “a vertical effect”. After discussing the
approach of constitutional courts in overseas jurisdiction
on “verticality vs. horizontality”, reference was made
to Article 12 of the Constitution of India which defines
the expression “the State”. It was observed that there
are some Articles in Part III of the Constitution where
the mandate is directly to the State and there are other
Articles where without injuncting the State, certain rights
are recognised to be inherited, either in the citizens of
the country or in persons. Referring to Part III of the
Constitution, it was observed that the Articles therein
relate to citizens and persons. It was further observed
that the rights conferred by Articles 15(2)(a) and (b), 17,
20(2), 21, 23, 24, 29(2), etc. are enforceable against
non-State actors also. As already noted, Article 21
deals, inter alia, with the right to privacy.
11.3.2 While referring to Puttaswamy, it was observed that
the original thinking of this Court that the fundamental
rights can be enforced only against the State has
changed over a period of time and that such rights can
be enforced even against authorities, instrumentalities
of the State, agencies of the State, those entities
which enjoy monopoly status conferred by the State
or where there is “deep and pervasive control” by the
State with regard to the “nature of duties/functions
performed”. Therefore, Question No.2 was answered
by the majority as follows:
“A fundamental right under Articles 19/21
can be enforced even against persons other
than the State or its instrumentalities.”
11.3.4 In the aforesaid judgment, Question No.3 was
formulated thus:
“Whether the State is under a duty to
affirmatively protect the rights of a citizen
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under Article 21 of the Constitution of India
even against a threat to the liberty of a
citizen by the acts or omissions of another
citizen or private agency?”
It was clarified by Ramasubramanian, J. that the word “citizen” ought
to be read as “person” as Article 21 states that “no person shall be
deprived of his life or personal liberty”. In the context of personal
liberty, it was observed that technological eavesdropping except
in accordance with the procedure established by law was frowned
upon by this Court in People’s Union for Civil Liberties (PUCL)
vs. Union of India, (1997) 1 SCC 301. Earlier mobile phones were
not in vogue and the State monopoly in communication was yet
to be replaced by private players such as intermediaries/service
providers. The infringement of the right to privacy by private players
is now rampant and therefore, fundamental right to privacy can
be enforced against non-State actors. In this regard, reliance was
placed on the judgment of this Court in Maneka Gandhi vs. Union
of India, (1978) 1 SCC 248 wherein it was observed that any law
interfering with personal liberty of a person must satisfy a triple test :
(i) it must prescribe a procedure; (ii) the procedure must withstand
the test of one or more of the fundamental rights conferred under
Article 19 which may be applicable in a given situation; and (iii) it
must also be liable to be tested with reference to Article 14. As the
test propounded by Article 14 pervades Article 21 as well, the law
and procedure authorising interference with personal liberty and
right of privacy must also be right and just and fair and not arbitrary,
fanciful or oppressive. If the procedure prescribed does not satisfy
the requirement of Article 14, it would be no procedure at all within
the meaning of Article 21.
12. 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,
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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”.
12.2 However, in Kaushal Kishore, one of us (Nagarathna, J.)
authored a partly dissenting opinion by observing thus –
“260.3. While the content of a certain common law
right, may be identical to a fundamental right, the two
rights would be distinct in two respects : first, incidence
of the duty to respect such right; and second, the
forum which would be called upon to adjudicate on
the failure to respect such right. While the content
of the right violated may be identical, the status of
the violator, is what is relevant”.
xxx
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“263. Therefore, the primary object of Part III of the
Constitution was to forge a new relationship between
the citizens and the State, which was the new site of
Governmental power. The realm of interaction between
citizens inter se, was governed by common law prior
to the enactment of the Constitution and continued
to be so governed even after the commencement of
the Constitution because as recognised hereinabove,
the common rights and remedies were not obliterated
even after the Constitution was enacted. These
inalienable rights, although subsequently placed in
Part III of the Constitution, retained their identity in
the arena of common law and continued to regulate
relationships between citizens and entities, other
than the State or its instrumentalities. It is therefore
observed that the incidence of the duty to respect
Constitutional and fundamental rights of citizens is
on the State and the Constitution provides remedies
against violation of fundamental rights by the State.
These observations are in consonance with the
recognition by this Court in People›s Union for
Civil Liberties v. Union of India [People›s Union for
Civil Liberties v. Union of India, (2005) 2 SCC 436]
(“People›s Union for Civil Liberties”) that the objective
of Part III is to place citizens at centre stage and
make the State accountable to them”.
“264. On the other hand, common law rights regulate
the relationship between citizens inter se. Although
the content of a common law right may be similar to
a fundamental right, the two rights are distinct insofar
as, the incidence of duty to respect a common law
right is on citizens or entities other than State or
its instrumentalities; while the incidence of duty to
respect a fundamental right, except where expressly
otherwise provided, is on the State. Remedies
against violation of fundamental rights by the State
are constitutionally prescribed under Articles 32 and
226; while common law remedies, some of which
are statutorily recognised, are available against
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violation of common law rights. Such remedies are
available even as against fellow citizens or entities
other than State or its instrumentalities. To this
extent, horizontality is recognised in common law.
Further to some extent certain fundamental rights are
recognised statutorily and some others are expressly
recognised in the Constitution as being applicable as
horizontal rights between citizens inter se such as
Articles 15(2), 17, 23 and 24”.
xxx
“268.7. Thus, recognising a horizontal approach of
fundamental rights between citizens inter se would
set at naught and render redundant, all the tests and
doctrines forged by this Court to identify “State” for
the purpose of entertaining claims of fundamental
rights violations. Had the intention of this Court been
to allow fundamental rights, including the rights under
Articles 19 and 21, to operate horizontally, this Court
would not have engaged in evolving and refining
tests to determine the true meaning and scope
of “State” as defined under Article 12. This Court
would have simply entertained claims of fundamental
rights violations against all persons and entities,
without deliberating on fundamental questions as
to maintainability of the writ petitions. Although
this Court has significantly expanded the scope of
“State” as defined under Article 12, such expansion
is based on considerations such as the nature of
functions performed by the entity in question and the
degree of control exercised over it by the State as
such. This is significantly different from recognising
horizontality of the fundamental rights under Articles
19 and 21, except while seeking a writ in the nature of
habeas corpus. Such a recognition would amount to
disregarding the jurisprudence evolved by this Court
as to the scope of Article 12 of the Constitution”.
12.3 It must be reiterated that the content of a common law right
may be similar to that of a fundamental right, but they are
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distinguished by the incidence of their duties on private entities
and the State respectively. Therefore, one can foist similar
obligations on private bodies and the State, while separating
the avenues by which these obligations are enforced.
12.4 In our view, Section 122 of 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. The 69th report of the Law Commission of India
in 1977 observed that the section is “based on the abiding
communication between the husband and wife, which is of such
a nature that their mutual communications are not always to
be regarded on the same footing as communications between
person who have no such intimate tie”. It prefaced this by
noting that the law of evidence has generally demonstrated
a “degree of solicitude towards the sanctity of marriage”, and
also referred to Best CJ’s opinion in Doker vs. Hasler, (1824)
171 E.M. 992, that “the happiness of the marriage…requires
that the confidence between man and his wife should be kept
for ever inviolable”. Similarly, the 1853 report of the English
Commission on Common Law Procedure had observed that
the ‘happiness’ of human life depends on a large part upon
the “inviolability” of domestic confidence, and that the “alarm
and unhappiness” caused to so ciety by the disclosure of
confidential communications outweighs the disadvantage in
terms of a loss of evidence during trials.1
12.5 Therefore, the Delhi High Court observed in RIT Foundation vs.
Union of India, 2022 SCC OnLine Del 1404, that the Law
Commission Report makes it clear that the “raison d’etre for
the spousal privilege (is) the “higher degree of confidence
that goes with a marriage”. This was also the view taken by
the Delhi High Court in an earlier case – S.J. Choudhary vs.
State 1984 SCC OnLine Del 185 – where it held that the
“prohibition under Section 122 of the Evidence Act is based
on the ground that the admission of such testimony is likely
to disturb the peace of the family and weaken the feeling of
mutual confidence”.

1 Report of the 69th Law Commission of India on the Indian Evidence Act, 1872, page 636.
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12.6 Clearly therefore, the founding rationale for Section 122 of
the said Act, as has been recognised by the Law Commission
and subsequently by certain High Courts, was to protect the
sanctity of marriage and not the right to privacy of the individuals
involved. Therefore, in adjudicating situations where the
privilege under Section 122 of the Act is not granted, as in suits
between a couple (an exception provided for in Section 122
itself), the right to privacy is not a relevant consideration, since
it is not the rationale under which spousal communications
were deemed privileged under Section 122 of the Act.

Conclusion:
13. 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.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Nidhi Jain