Covertly-Recorded Spousal Conversations Held Admissible in Matrimonial Litigation – Commentary on Vibhor Garg v. Neha, 2025 INSC 829

1. Introduction

The Supreme Court’s decision in Vibhor Garg v. Neha addresses a question that has long divided Family Courts and High Courts across India: Can one spouse secretly record telephone conversations with the other and rely on those recordings as evidence in divorce proceedings? The appellant-husband sought divorce alleging cruelty and attempted to produce a CD/memory-card containing voice recordings of conversations with his wife. While the Family Court admitted the material, the Punjab & Haryana High Court reversed that order on privacy grounds. The Supreme Court, in allowing the appeal, has now laid down an authoritative precedent clarifying: (i) the scope of spousal privilege under Section 122 of the Indian Evidence Act, 1872 (IEA); (ii) the interface between the Evidence Act, the Family Courts Act, 1984 (FCA), and Article 21 privacy jurisprudence; and (iii) the evidentiary value of covertly-obtained electronic recordings in matrimonial disputes.

2. Summary of the Judgment

1. Family Court’s order (29-01-2020): permitted the husband to file a supplementary affidavit with memory-cards/CD and transcripts, invoking Sections 14 & 20 FCA.
2. High Court’s order (12-11-2021): set aside the Family Court’s order, holding that secretly recorded spousal conversations violate the wife’s right to privacy, relying on a line of High Court authorities that had barred such evidence.
3. Supreme Court’s holding (14-07-2025):

• The High Court erred; the evidence is prima facie admissible.
• Section 122 IEA creates a privilege protecting “communications during marriage”, but its own exception expressly removes that privilege in suits between the spouses (e.g., divorce).
• Right to privacy under Article 21 is not absolute and, in any event, Section 122 does not itself incorporate a privacy right; it balances marital confidence with a fair-trial exception.
• Covert recordings are not inadmissible merely because of the manner of procurement; admissibility hinges on the “three-fold test” – relevance, voice identification, and authenticity per Yusufalli Nagree and R.M. Malkani.
• Family Courts, endowed with evidentiary flexibility under Section 14 FCA, may admit such electronic evidence subject to Section 65B certification.

4. Result: High Court judgment set aside; Family Court’s order restored; recordings to be taken on record; proceedings to continue in camera.

3. Analysis

3.1 Precedents Cited & their Influence

• M.C. Verghese v. T.J. Ponnan (1970) – Apex Court dissected Section 122 into two limbs (compellability & permissibility) and recognised its express exception for “suits between married persons”. This case is the fulcrum of the present ruling.
• Ram Bharosey (1954), Appu v. State (1971) – clarified that Section 122 bars only disclosure by the spouse to whom the communication was made; third-party or documentary proof of the same communication is not hit by the privilege.
• Yusufalli Esmail Nagree (1968) & R.M. Malkani (1973) – laid down the three-fold admissibility test for tape recordings (relevance, identification, accuracy), and held that evidence is not excluded merely because gathered surreptitiously.
• K.S. Puttaswamy (2017) & Kaushal Kishor (2023) – landmark privacy cases. Court used them to emphasize that privacy, though fundamental, is subject to reasonable restrictions, and horizontal application is context-dependent.
• Divergent High Court views:
  • Allowed evidence: Deepti Kapur (Del 2020), Preeti Jain (Raj 2016) etc.
  • Disallowed evidence: Rayala Bhuvaneswari (AP 2008), Deepinder Singh Mann (P&H 2014) etc.
  The Supreme Court expressly endorsed the former line and overruled the latter to the extent inconsistent.

3.2 Legal Reasoning of the Court

1. Statutory construction of Section 122 IEA
   • First limb – Compellability: a spouse cannot be forced to disclose communications.
   • Second limb – Permissibility: even voluntary disclosure needs consent of the communicating spouse unless the proceeding is (a) a suit between the spouses or (b) prosecution for an offence by one against the other.
   • Hence, in a divorce suit, the bar is lifted; the spouse may disclose the communication; no separate consent is required.
2. Nature of the right protected – The privilege seeks to foster marital confidence, not to constitutionalise privacy within marriage. Where the marriage has itself broken down and litigation ensues, the law prioritises a fair adjudication over confidentiality.
3. Privacy Objection Answered
   • Article 21 privacy is not absolute; it yields to legitimate State interest (here, a fair trial) if authorised by law, proportionate and reasonable.
   • Section 122 IEA is a law enacted by Parliament which itself calibrates the balance; hence using its exception does not violate Article 21.
   • A spouse’s clandestine recording is an effect of marital discord, not a cause; admitting the product does not “incentivise surveillance” in healthy marriages.
4. Electronic evidence framework
   • Section 65A–65B IEA govern admissibility; certificate requirement applies unless the original device is produced (Anvar P.V., Arjun Panditrao Khotkar).
   • Family Courts may relax evidentiary formalities under Section 14 FCA; nevertheless, best practice is to furnish a compliant 65B certificate.
5. Precedential coherence – By harmonising spousal privilege cases with privacy jurisprudence, the Court has given a doctrinally consistent reading of Section 122, thereby resolving conflicting High Court rulings.

3.3 Potential Impact on Future Litigation

• Uniform admissibility standard: Family Courts nation-wide must now entertain covertly recorded spousal conversations subject to relevance & authenticity; High Courts’ contrary precedents stand diluted.
• Increase in digital evidence: Litigants may proactively preserve electronic communications (WhatsApp chats, emails, call recordings) knowing they are admissible, provided Section 65B conditions are met.
• Privacy balancing framework: The judgment clarifies that statutory balancing (here, Section 122 exception) itself satisfies Puttaswamy’s proportionality test—important for all statutes balancing privacy with other interests.
• Procedural directions: Though not laid down as binding guidelines, the Court endorsed factors suggested by the Amicus (context, proportionality, authenticity, socio-economic asymmetry) which lower courts may assimilate when assigning probative value to such recordings.
• Legislative dialogue: Parliament may revisit Section 122 and FCA Rules to incorporate data-protection safeguards (sealed covers, restricted inspection) similar to Delhi Family Courts (Amendment) Rules, 2024, referred to by the Court.

4. Complex Concepts Simplified

• Spousal Privilege (Section 122 IEA): A rule that generally bars one spouse from testifying to private communications made by the other during marriage, unless the case is directly between them or one is prosecuted for a crime against the other.
• Compellability vs Permissibility: “Compellability” means whether the court can force a witness to testify; “permissibility” means whether the court may allow testimony even if the witness is willing.
• Section 65B Certificate: A written declaration – usually by someone in control of the computer/device – outlining how an electronic record was produced, thereby authenticating it for court use.
• Horizontal Application of Rights: Applying fundamental rights against private individuals, not just the State. The Court held privacy may have limited horizontal effect, but Section 122 already resolves the conflict.
• Three-fold Test for Tape Recordings: (i) Relevance to issues; (ii) Proper voice identification; (iii) Proof of accuracy & no tampering. Only then is the recording admissible.
• Family Courts Act, 1984 – Section 14: Allows Family Courts to receive “any evidence” that may assist in decision-making, relaxing strict Evidence Act rules, though constitutional/statutory privileges still apply.

5. Conclusion

Vibhor Garg v. Neha decisively clarifies that the law’s concern for marital confidence does not override the pursuit of truth when the marriage itself is in litigation. By reading Section 122’s exception plainly and layering it over contemporary privacy doctrine, the Supreme Court has struck a calibrated balance between personal autonomy and procedural justice. The ruling harmonises conflicting authorities, charts clear evidentiary pathways for electronic material, and reassures litigants that a fair trial will not be sacrificed at the altar of an over-extended privacy claim. Going forward, Family Courts must vigilantly examine authenticity and context, but the door to relevant covert recordings is now firmly open.