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In a significant ruling, the Hon'ble Supreme Court in Vibhor Garg vs. Neha, 2025 INSC 829, held that secretly recorded phone calls between spouses are admissible as evidence in divorce proceedings, thereby settling the law amidst conflicting judgments by various High Courts.
In arriving at this conclusion, the Court observed that under Section 122 of the Indian Evidence Act, what is barred is the disclosure of a communication made by one spouse to the other through testimony in court. However, the communication itself as captured through other means is not inadmissible. The Court likened the recording device (such as a phone) to an eavesdropper, noting that the evidence obtained thereby does not fall within the scope of the statutory bar.
The Court further clarified that Section 122 contains an exception and it does not apply to litigation between the spouses. Thus, in matrimonial disputes, the protection ordinarily afforded to spousal communications is not available.
Additionally, the Court recognized that while the right to privacy may, in certain situations, be enforceable even against non-State actors, the statutory exception under Section 122 constitutes a valid legislative mechanism. In this context, the right to a fair trial also rooted in Article 21 of the Constitution, prevails over the right to privacy, which also emanates from Article 21.
The mere fact that a conversation was recorded without the consent or knowledge of the speaker does not, by itself, render the evidence inadmissible.
Notably, the Court remarked:
"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 Court clarified that a recorded conversation between spouses can be admitted into evidence in a divorce proceeding subject to the satisfaction of the three-fold test of relevance, identification and accuracy.
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