Supreme Court: Conversation Recorded Without Consent & Knowledge Of Person Speaking Can Be Admitted As Evidence

The Supreme Court held that 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.

The Court held thus in a Civil Appeal filed against the Judgment of the Punjab and Haryana High Court, which allowed a Civil Revision Petition.

The two-Judge Bench comprising Justice B.V. Nagarathna and Justice Satish Chandra Sharma observed, “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.”

The Bench was of the view that Section 122 of the Indian Evidence Act, 1872 (IEA) 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.

AOR Ankit Swarup appeared on behalf of the Appellant while Senior Advocate Gagan Gupta appeared on behalf of the Respondent. Advocate Vrinda Grover was appointed as the Amicus Curiae.

Brief Facts

The marriage between the Appellant-husband and the Respondent-wife was solemnized in 2009 and a daughter was born out of the said wedlock in 2011. Due to marital discord between the two, the husband filed a Divorce Petition under Section 13 of the Hindu Marriage Act, 1995 (HMA) before the Family Court in 2017. The said Petition was subsequently amended and filed again in 2018. The husband submitted his affidavit of examination-in-chief and later, an Application was moved by him, seeking permission to submit his supplementary affidavit along with memory cards/chips of the mobile phones, compact disc (CD), and transcript of conversations recorded in the same. In his Application, he stated that various telephonic conversations happened which were recorded by him and stored. Hence, he prayed that he may be allowed to file his supplementary affidavit.

The wife opposed the said Application on the ground that the examination-in-chief was already completed and the admissibility of memory card/chips along with CD and transcripts is in dispute and these electronic instruments cannot be exhibited. She sought the dismissal of the husband’s Application. However, the Family Court allowed his Application 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. This was challenged by the wife before the High Court and her Civil Revision Petition was allowed. It was held by the High Court that the CD tendered in evidence by the Appellant 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. Being aggrieved, the husband was before the Apex Court.

Court’s Observations

The Supreme Court in view of the above facts, said, “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.”

The Court summarised the following points regarding the provisions of Section 122 of IEA –

(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.

(iii) The rule of privilege applies equally whether or not the witness or his or her spouse is a party to the proceeding.

(iv) The privilege extends to communications made to a spouse and not to those made by a spouse.

The Court further noted, “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.”

The Court, therefore, directed the Family Court to take on record the supplementary affidavit filed by way of examination-in-chief along with memory card/chip of the mobile phones, compact disc (CD) and transcript of the conversation recorded in memory card/chips of the mobile phones for the relevant period and consider the same as evidence, in accordance with law.

Accordingly, the Apex Court allowed the Appeal.

Cause Title- Vibhor Garg v. Neha (Neutral Citation: 2025 INSC 829)

Appearance:

Appellant: AORs Ankit Swarup, Yash S. Vijay, Advocates Neelmani Pant, Vidisha Swarup, Rishi Bhargava, Yashvi Aswani, Vrinda Grover (Amicus Curiae), Devika Tulsiani, and Soutim Banerjee.

Respondent: Senior Advocate Gagan Gupta and AOR Ananta Prasad Mishra.

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