Supreme Court on Admissibility of Secret Recordings in Matrimonial cases as Evidence

“In a decision weighing marital privacy against the pursuit of truth in court, the Supreme Court has ruled that sometimes, the quest for justice in a broken marriage requires listening to what was never meant to be heard.”

This Supreme Court judgment given by the bench B.V. Nagarathna, J. & Satish Chandra Sharma, J. deals with the admissibility of secretly recorded conversations between spouses as evidence in matrimonial proceedings.

Facts of the Case:

• The husband (appellant) filed for divorce, alleging cruelty.
• During proceedings, he sought to submit a supplementary affidavit along with audio recordings (on memory cards/CD) of conversations with his wife (respondent) from 2010 and 2016, made without her knowledge.
• The Family Court allowed the evidence, citing relevance and the evidence rules under the Family Courts Act.
• The High Court reversed this, holding that admitting such evidence violated the wife’s right to privacy under Article 21 of the Constitution.

At the Supreme Court:

The Supreme Court directed the Family Court to continue the evidence though as a matter of safeguard, to record the evidence and subsequent cross-examination and to be carried out in-camera. The transcription of the said recording of the evidence and cross-examination was directed to be placed in a sealed cover.

The Apex Court appointed Ms. Vrinda Grover, learned Advocate, as an amicus curiae to assist this Court in the case. The learned Amicus submitted to the court the divergent views of various High Courts on the issue of admissibility of evidence with respect to the recording of conversations in proceedings between a husband and wife. A compilation of case laws that allowed and not allowed covert recordings as evidence was submitted by the amicus curiae for the perusal of the Court. Some factors suggested by the learned amicus for providing guidance in the exercise of judicial discretion are enumerated as follows:

Upon hearing both the Counsels and amicus the Supreme Court allowed the husband’s appeal, setting aside the High Court’s order and restoring the Family Court’s decision. The secretly recorded conversations are admissible as evidence.

Key Legal Reasoning

1. Validity of Secretly Recorded Evidence

• Illegally obtained evidence is not automatically inadmissible. The Court relied on precedents (Yusufalli Esmail Nagree v. State of Maharashtra, 1967 (SLT SOFT) 91=AIR 1968 SC 147, R.M. Malkani v. State of Maharashtra, 1972 (SLT SOFT) 640=(1973) 2 SCR 417 ) where covertly recorded conversations were admitted if relevant.
• Three-fold test for admissibility:
  1. Relevance to the issues in the case.
  2. Voice identification of the speakers.
  3. Accuracy and authenticity of the recording (no tampering).
• The fact that recording was without consent does not bar admissibility, provided it was voluntary (no coercion).

2. Section 122 of the Evidence Act (Spousal Privilege)

• Section 122 of the Evidence Act deals with Compellability and Permissibility. The facts of this case deal with the Permissibility. 
• Section 122 protects private communications between spouses during marriage from being disclosed in court.
• However, an exception exists: it does not apply in suits between married persons (like divorce proceedings).
• Here, the divorce case falls under the exception, so the husband is not barred from disclosing the wife’s communications.
• The Court clarified:
  • Section 122 protects communications made to a spouse, not those made by them.
  • The bar is on the spouse as a witness disclosing the communication, not on the communication itself being proved by other means (e.g., a recording device).
  • The provision aims to protect marital confidence, not privacy as a constitutional right.

3. Section 122 of the Evidence Act and Right to Privacy

• The right to privacy (Article 21) is not absolute and must be balanced with the right to a fair trial.
• In matrimonial disputes, evidence is often scarce; excluding relevant evidence (like recordings) could deny justice.
• Snooping is a symptom, not a cause, of marital breakdown; admitting such evidence does not encourage surveillance.
• The exception under Section 122 itself recognizes that in spouse-versus-spouse cases, the need for evidence outweighs marital privacy.

4. Family Courts Act, 1984

• Section 14 gives Family Courts flexibility to admit evidence that may be relevant, even if strict evidence rules would exclude it.
• This supports admitting the recordings if they help resolve the dispute.

5. Horizontal Application of Fundamental Rights

• While privacy can be invoked against private parties (horizontal effect), Section 122 of the Evidence Act is a statutory exception tailored for matrimonial communications.
• Its objective is to preserve marital harmony, not to create a privacy right against a spouse in litigation.

Conclusion

• The Supreme Court held that covertly recorded conversations between spouses are admissible in divorce cases, subject to authenticity and relevance.
• The right to privacy does not override the right to present relevant evidence in matrimonial disputes.
• The Family Court must examine the recordings following the three-fold test of relevance, identification and accuracy and ensure proper procedures (e.g., in-camera hearings, sealed transcripts) to minimize privacy concerns.

Final Order

• The High Court’s order was set aside.
• The Family Court’s order allowing the evidence was restored.
• The Family Court will now consider the recordings as evidence in the divorce proceedings.

Significance: This judgment clarifies that in marital litigation, the need for evidence can justify admitting secretly recorded conversations, balancing privacy concerns with the demands of a fair trial.

For the detailed and complete judgment click here.