In an important decision issued on 14 July 2025, the Supreme Court has put an end to a longstanding legal debate on the admissibility of secretly recorded conversations between married couples in family divorce cases. The Court determined that such recordings could be presented in a divorce court and their usage did not violate the right to privacy contained in Article 21 of the Constitution. The decision was given in Vibhor Garg v. Neha, decided by a Bench of Justice B.V Nagarathna and Justice Satish Chandra Sharma. The Court was confronted with a conflict between two values competing with each other: the right to privacy in marriage, and the right to a fair trial, especially in such cases where the allegations of cruelty are brought to the fore when the doors are closed. Finally, the Court decided that where spouses are suing each other the truth and fair play should be the rule rather than the claim of marital privilege. Facts of the Case:The appellant-husband and the respondent-wife got married in February 2009, and the daughter was born in May 2011. Due to growing matrimonial discord, the husband, in 2017, applied to the Family Court at Bathinda to get a divorce under Section 13 of the Hindu Marriage Act in 2017 due to increasing matrimonial disharmony. In the trial process, the husband attempted to introduce on record the audio recordings of telephone conversations between him and his wife, and they were recorded at different levels of marriage. He generated memory cards, mini disks, and written transcripts, contending that the conversations were relevant to prove cruelty.The wife was much against this step and said that the talks were recorded without her knowing or consent, and allowing such contents would amount to a grave intrusion into her privacy. The Family Court however accepted the evidence on the ground that the conversation between the parties was relevant for the controversy in question between the parties and there is no bar on the admissibility of such a recording. The Family Court observed that the appellant was 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.Being aggrieved by the Family Courts decision, the respondent-wife filed a revision petition in the Punjab & Haryana High Court. The Punjab & Haryana High Court, allowed the revision and set aside the order of the Family Court, and held that accepting such recordings would infringe the right of privacy of the wife under Article 21. This resulted in the case in the Supreme Court. What Was the Legal Issue? The main issue under the Supreme Court was to determine whether conversations between spouses documented secretly could be admitted as an evidence in the divorce process, or whether such evidence should be precluded in the name of the spousal privilege under Section 122 of the Indian Evidence Act or the right to privacy.Submissions on behalf of the parties:The counsel for the husband argued that matrimonial disputes involving allegations of cruelty often arise from events that take place entirely within the privacy of the home. He submitted that such incidences are hardly witnessed by independent persons and never recorded. Under these conditions, one of the possible methods to present the truth to the court can be the electronic evidence, i.e., the recorded conversations. He argued that denying such a spouse the right to a fair trial would amount to denying him/her the right to such material.He further argued that the right to privacy is not absolute and should be struck against the right to justice which is also vital. Using the exception to the law in Section 122 of the Indian Evidence Act, he submitted that communications between husband and wife are explicitly allowed to be presented in trials involving them even in divorce cases. He says that once litigation is initiated, the law gives both spouses an opportunity to have their case heard to the full extent including putting on record private communications.The counsel for the husband also argued that the Family Courts Act, 1984 was specifically designed to enable elasticity of evidence and enable the courts to unearth the truth in delicate marriage disputes. The provisions of the Act, section 14 and section 20 are a technical rule of evidence, which must be overridden to achieve fairness. Opposing the appeal, the counsel for the wife, strongly objected to the admissibility of the recorded conversations. He argued that tape recordings had been done without the knowledge or permission of the wife and allowing the use of the tapes in a court of law would be tantamount to condoning a grave breach on the marital trust. In his view, this was a clear violation of the article 21 of the constitution that defined the basic right to the privacy of the wife.The wife’s counsel cautioned that courts would be ill-equipped to assess the circumstances in which such conversations were recorded. He submitted that it would be impossible to determine whether responses were provoked, manipulated, or selectively captured, especially when the recordings surfaced years after they were allegedly made. Allowing such evidence, he warned, would open the floodgates to misuse and encourage spouses to secretly monitor each other. Admission of such evidence, he cautioned, would simply open the gates to abuse and would be an incentive to spouses to spy on each other.He also argued that marriage is a bond of trust and confidence and legalizing undercover tapings would destroy family peace. Using a sequence of High Court decisions, such as Deepinder Singh Mann and Rayala M Bhuvaneswari the counsel of the wife claimed that covert videotaping between married couples had always been considered invalid and against the marital law ethos.Observations of Supreme Court:Having heard both parties, the Supreme Court set aside the rationale taken by the Punjab and Haryana High Court. The Bench that included Justice B.V. Nagarathna and Justice Satish Chandra Sharma believed that the statutory framework on marital communications was disregarded as the High Court gave an undue focus on the right to privacy.The Court had a thorough look at Section 122 of the Indian Evidence Act concerning communications in marriage. The Court made it clear that the provision is mistakenly understood and applied, as it does not constitute an absolute bar. It noted that the section is separated into two parts one of which is compulsion and the other permission. Although it is impossible to force a spouse to reveal marital communications, there is a legal exception in situations where spouses are suing each other. The bar of disclosure is inapplicable in such proceedings.Rejecting the privacy argument, the Bench made a significant observation:“We do not think there is any breach of privacy in this case. In fact, Section 122 of the Evidence Act does not recognize any such right.”The Court further explained that the purpose of the enactment of the Section 122 was to safeguard the sanctity of marriage and not to provide an absolute safeguard of privacy once the marriage is brought to the court. In cases where a marriage is already broken and parties are in a court seeking legal help, the right to fair trial must succeed.The Court further noted that Section 122 of the Evidence Act is not founded on the constitutional right to privacy at all. The provision was enacted to preserve marital confidence and protect the sanctity of marriage. Once that sanctity has already broken down and spouses are before a court of law, the statute itself lifts the protection. In such cases, the question is no longer about privacy, but about allowing both sides a fair opportunity to prove their case.The Supreme Court also took the opportunity to clarify an important constitutional misunderstanding that had crept into several High Court decisions after the landmark privacy ruling in K.S. Puttaswamy v. Union of India. The Bench explained that while the right to privacy is a fundamental right under Article 21, it primarily operates as a safeguard against State intrusion, not as an absolute barrier in private disputes between individuals.The Court put a stop to this argument to deal with the fear that could have been raised that since such evidence is legalized, it would encourage snooping amongst married couples. It noted that secret recording does not break marriages, but is a symptom of the same.The bench commented: “If the marriage has reached a stage where spouses are actively snooping on each other, that is in itself a sign of a broken relationship and denotes lack of trust between them,”The Court observed that the omission of the relevant evidence on the basis of privacy would be tantamount to averting the entire objective of matrimonial adjudication through the process of establishing the truth and dispensing justice. It also revisited previous decisions that evidence that is illicitly or covertly obtained is not necessarily inadmissible, so long as its relevance, authenticity, and accuracy or otherwise have been proven.In conclusion, the Supreme Court reversed the decision of Punjab and Haryana High Court and reinstated the order of Family Court authorizing the recordings to be recorded. It instructed that the evidence should be considered in line with the law where it should face test on authenticity and relevance. This appeal was therefore granted.Appearances: Adv Ankit Swarup and AoR Rishi Bhargava for the appellant; Sr Adv Gagan Gupta for the respondent.Case no. – SLP(C) No. 21195/2021Case Title – Vibhor Garg v. Neha(Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)