2025 INSC 829

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025

(Arising out of Special Leave Petition (Civil) No.21195 of 2021)

VIBHOR GARG … APPELLANT

VERSUS

NEHA … RESPONDENT

J U D G M E N T

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.

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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

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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

there is no bar on the admissibility of such a tape recording. The

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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.

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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:

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

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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.

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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 ha d 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 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.

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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

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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.

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

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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 Talr eja, 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

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

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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

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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.

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.

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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

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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 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.

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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

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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 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 69

th 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

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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

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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 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

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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

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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.

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?

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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

therein claimed that the respondent therein (Ponnan) had written

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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

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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

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

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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:

“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.

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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 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

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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 v s. 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

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

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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, 20

th 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

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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 (Nawab Howladar v s.

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

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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

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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

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

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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]

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(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.

(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

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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

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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. 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.

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(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 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

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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 v s. 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

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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

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.

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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

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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:

“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

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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

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

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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

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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

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

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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

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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.

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

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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.

Page 46 of 66

10.6 Section 65A deals with special provisions as to evidence

relating to electronic records. The contents of electronic 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;

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(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;

(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

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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,—

(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

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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.

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

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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,

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2024 SCC OnLine Kar 6368 decided on 19.06.2024 passed by 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

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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.

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:

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“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 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

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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

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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 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

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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:

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“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 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 Ramasubramania n, 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

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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

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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, 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

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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 violation of common law rights.

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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”.

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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

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 69

th 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,

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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

society 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 69

th

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

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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.

….……………………………………..J.

(B.V. NAGARATHNA)

….……………………………………..J.

(SATISH CHANDRA SHARMA)

NEW DELHI;

JULY 14, 2025.