# Vibhor Garg v. Neha

- **Citation:** 2025 INSC 829
- **Court:** Supreme Court of India
- **Decided:** 2025-07-14
- **Case number:** Civil Appeal No. 9489 of 2025
- **Bench:** B.V. Nagarathna, Satish Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vibhor-garg-v-neha-38576
- **Pages:** 44

## Headnote

Issue arose whether the conversation between spouses secretly
recorded by one of them could be permitted to be made admissible
in evidence; whether in light of the Evidence Act and the Family
Courts Act, 1984, a conversation between spouses can be permitted
to be given in evidence in a proceeding for divorce; whether such
a recorded evidence should be disallowed solely on the ground
that it is violative of the privacy of one of the spouses; and as to
the correctness of the order passed by the High Court, declining
permission to the husband to corroborate his evidence in the form
of recording on his mobile phone and by means of a compact disc
(CD) and transcription of the same containing the communication
made by the wife to the husband in order to prove his case for
seeking divorce.
Headnotes†
Hindu Marriage Act, 1955 - s.13 - Evidence Act, 1872 -
s.122 - Family Courts Act, 1984 - Constitution of India -
Art.21 - Divorce - Secretly recorded telephonic conversation
of spouse - Admissibility in evidence - Right to Privacy -
Husband sought 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 - Family Court allowed the application - However, in
the revision petition by the wife, the High Court held that the
CD cannot be accepted in view of the right to privacy of the
wife - Correctness:
Held: Order passed by the High Court set aside and that
by the Family Court restored - Three-fold test of relevance,
* Author
612
[2025] 7 S.C.R.
Supreme Court Reports
identification and accuracy has to be satisfied before a Court
admits a recorded conversation in evidence - 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 - Husband would have ordinarily been barred from
disclosing any form of communication that was disclosed by the
wife to him by virtue of being a privileged communication u/s.122
of the Evidence Act, however 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 is in a
divorce proceeding between the husband and the wife - Thus,
such privileged communication is not barred from being disclosed
and brought before the Court and the objection taken by the wife
with respect to s.122 is not acceptable - Adverting to s.14 of the
F.C. Act is not required in the instant facts when the Evidence Act
itself permits such a communication to be admitted in evidence by
way of an exception - Furthermore, the exception u/s.122 has to
be construed in light of right to a fair trial which is also an aspect
of Art.21 - When the respective rights of the parties in a trial are
weighed within the parameters of s.122, there is no breach of right
to privacy - Thus, as per procedure established by law, s.122
does not touch upon the aspect of right to privacy as envisaged
u/Art.21 of the Constitution, let alone invade upon such right
because s.122 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 - Rationale for s.122
was to protect the sanctity of marriage and not the right to privacy
of the individuals involved. [Paras 9.5, 10, 10.2, 12, 12.6, 13]
Evidence Act, 1872 - s.122 - Communications during
marriage - 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 - Principles and interpretations - Stated.
[Para 8.8]

## Text

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[2025] 7 S.C.R. 611 : 2025 INSC 829
Vibhor Garg
v.
Neha
(Civil Appeal No. 9489 of 2025)
14 July 2025
[B.V. Nagarathna* and Satish Chandra Sharma, JJ.]
Issue for Consideration
Issue arose whether the conversation between spouses secretly
recorded by one of them could be permitted to be made admissible
in evidence; whether in light of the Evidence Act and the Family
Courts Act, 1984, a conversation between spouses can be permitted
to be given in evidence in a proceeding for divorce; whether such
a recorded evidence should be disallowed solely on the ground
that it is violative of the privacy of one of the spouses; and as to
the correctness of the order passed by the High Court, declining
permission to the husband to corroborate his evidence in the form
of recording on his mobile phone and by means of a compact disc
(CD) and transcription of the same containing the communication
made by the wife to the husband in order to prove his case for
seeking divorce.
Headnotes†
Hindu Marriage Act, 1955 - s.13 - Evidence Act, 1872 -
s.122 - Family Courts Act, 1984 - Constitution of India -
Art.21 - Divorce - Secretly recorded telephonic conversation
of spouse - Admissibility in evidence - Right to Privacy -
Husband sought 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 - Family Court allowed the application - However, in
the revision petition by the wife, the High Court held that the
CD cannot be accepted in view of the right to privacy of the
wife - Correctness:
Held: Order passed by the High Court set aside and that
by the Family Court restored - Three-fold test of relevance,
* Author
612
[2025] 7 S.C.R.
Supreme Court Reports
identification and accuracy has to be satisfied before a Court
admits a recorded conversation in evidence - 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 - Husband would have ordinarily been barred from
disclosing any form of communication that was disclosed by the
wife to him by virtue of being a privileged communication u/s.122
of the Evidence Act, however 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 is in a
divorce proceeding between the husband and the wife - Thus,
such privileged communication is not barred from being disclosed
and brought before the Court and the objection taken by the wife
with respect to s.122 is not acceptable - Adverting to s.14 of the
F.C. Act is not required in the instant facts when the Evidence Act
itself permits such a communication to be admitted in evidence by
way of an exception - Furthermore, the exception u/s.122 has to
be construed in light of right to a fair trial which is also an aspect
of Art.21 - When the respective rights of the parties in a trial are
weighed within the parameters of s.122, there is no breach of right
to privacy - Thus, as per procedure established by law, s.122
does not touch upon the aspect of right to privacy as envisaged
u/Art.21 of the Constitution, let alone invade upon such right
because s.122 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 - Rationale for s.122
was to protect the sanctity of marriage and not the right to privacy
of the individuals involved. [Paras 9.5, 10, 10.2, 12, 12.6, 13]
Evidence Act, 1872 - s.122 - Communications during
marriage - 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 - Principles and interpretations - Stated.
[Para 8.8]
Case Law Cited
M.C. Verghese v. T.J. Poonan [1969] 2 SCR 692 : (1969) 1 SCC 37;
Ram Bharosey v. State of U.P. (1954) 1 SCC 284; Yusufalli Esmail
Nagree v. The State of Maharashtra [1967] 1 SCR 720 : AIR 1968
SC 147; Shankar v. State of T.N [1994] 3 SCR 298 : (1994) 4
SCC 478; R. M. Malkani v. State of Maharashtra (1973) 2 SCR
[2025] 7 S.C.R.
613
Vibhor Garg v. Neha
417 : (1973) 1 SCC 471; K.S. Puttaswamy (Privacy-9J.) v. Union
of India [2017] 10 SCR 569 : (2017) 10 SCC 1; Kaushal Kishor v.
State of U.P. [2023] 8 SCR 581 : (2023) 4 SCC 1; People's Union
for Civil Liberties (PUCL) v. Union of India [1996] Supp. 10 SCR
321 : (1997) 1 SCC 301; Maneka Gandhi v. Union of India [1978]
2 SCR 621 : (1978) 1 SCC 248 - referred to.
Deepinder Singh Mann v. Ranjit Kaur, 2014 SCC OnLine P&H
4826; Tripat Deep Singh v. Paviter Kaur, 2018 (3) RCR (Civil) 71;
Rayala M. Bhuvaneswari v. Nagaphanender Rayala, AIR 2008 AP
98; Anurima @ Abha Mehta v. Sunil Mehta s/o Chandmal (2016) 2
RCR (Civil) 773; Vishal Kaushik v. Family Court, 2016(1) RLW 693
(Raj.); Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672;
Preeti Jain v. Kunal Jain, AIR 2016 Raj 153; Kethana Lokesh v.
Rahul R. Bettakote, 2024 SCC OnLine Kar 6368; Jil v. State of
Gujarat, 2024 SCC OnLine Guj 4363; Essaki Ammal @ Chitra v.
Veerabhadra @ Kumar, 2012 (4) CTC 743; Havovi Kersi Sethna v.
Kersi Gustad Sethna, 2011 SCC OnLine Bom 120; Abhishek
Ranjan v. Hemlata Chaubey, Misc. Petition No. 1300/2023
decided on 29.08.2023; Saroj v. Aashish Yadav, Misc. Petition No.
1422/2024 decided on 02.08.2024; Ram Talraja v. Sapna Talreja,
Misc. Petition No. 949/2022 decided on 26.04.2022; Aasha Lata
Soni v. Durgesh Soni, 2023 SCC OnLine Chh 3959; Neha v. State
of Haryana, 2020 SCC OnLine P&H 4469; Dharmesh Sharma v.
Tanisha Sharma, 2024 SCC OnLine HP 5208; Deepali v. Praveen,
2023 : KHCD : 11968; Norendra Nath Mozumdar v. State, AIR
1951 Cal 140; Vilas Raghunath Kurhade v. State of Maharashtra,
2010 SCC OnLine Bom 1967; Appu Alias Ayyanar Padayachi v.
State, AIR 1971 Mad 194; Nawab Howladar v. Emperor, 1913
SCC OnLine Cal 447; RIT Foundation v. Union of India, 2022 SCC
OnLine Del 1404; S.J. Choudhary v. State, 1984 SCC OnLine
Del 185; Essaki Ammal @ Chitra v. Veerabhadra @ Kumar, 2012
SCC OnLine Mad 2093 - referred to.
Doker v. Hasler (1824) 171 E.M. 992 - referred to.
Books and Periodicals Cited
Sarkar's Law of Evidence, 20th Edition, Volume 2 - referred to.
List of Acts
Constitution of India; Evidence Act, 1872; Hindu Marriage Act,
1955; Family Courts Act, 1984; Delhi Family Courts Rules, 1996;
Delhi Family Courts (Amendment) Rules, 2024.
614
[2025] 7 S.C.R.
Supreme Court Reports
List of Keywords
Marital discord; Memory cards/chips of the mobile phones;
Compact disc (CD); Transcript of conversations recorded; Electronic
instruments; Admissibility of tape recordings; Conversations
between husband and wife; Right to privacy; Facet of right to
life; Communications during marriage; Doctrine of privileged
communications; Compellability and permissibility; Secretly
obtained evidence; Best evidence available; 'Common law rights';
Fundamental rights; Relationship between citizen and State; Right
to privacy against private bodies; 'Negative' and 'positive' freedoms;
Vertical or horizontal effect; Divorce; Secretly recorded telephonic
conversation of spouse; Admissibility in evidence.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9489 of 2025
From the Judgment and Order dated 12.11.2021 of the High Court
of Punjab & Haryana at Chandigarh in CR No. 1616 of 2020
Appearances for Parties
Ms. Vrinda Grover (Amicus Curie), Ms. Devika Tulsiani, Soutik
Banerjee, Yash S.Vijay, Afeef Mohammed.
Advs. for the Appellant:
Ankit Swarup, Nitin Sood, Neelmani Pant, Ms. Vidisha Swarup,
Rishi Bhargava.
Advs. for the Respondent:
Gagan Gupta, Sr. Adv., Ananta Prasad Mishra, Jasbir Singh,
Saurabh Gupta.
Judgment / Order of the Supreme Court
Judgment
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.
[2025] 7 S.C.R.
615
Vibhor Garg v. Neha
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 appellanthusband 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 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
616
[2025] 7 S.C.R.
Supreme Court Reports
there is no bar on the admissibility of such a tape recording.
The 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 respondentwife 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.
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:
[2025] 7 S.C.R.
617
Vibhor Garg v. Neha
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
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.
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 had 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
618
[2025] 7 S.C.R.
Supreme Court Reports
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.
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 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.
[2025] 7 S.C.R.
619
Vibhor Garg v. Neha
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
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 Talreja, 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
620
[2025] 7 S.C.R.
Supreme Court Reports
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
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
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.
[2025] 7 S.C.R.
621
Vibhor Garg v. Neha
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.
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
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
622
[2025] 7 S.C.R.
Supreme Court Reports
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.
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 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
[2025] 7 S.C.R.
623
Vibhor Garg v. Neha
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 69th
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 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 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
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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 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 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.
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625
Vibhor Garg v. Neha
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?
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
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therein claimed that the respondent therein (Ponnan) had written
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
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
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627
Vibhor Garg v. Neha
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 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:
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"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.
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
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629
Vibhor Garg v. Neha
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 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 vs. 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
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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 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.