The Supreme Court has ruled that secretly recorded conversations between squabbling couples can be used as evidence in matrimonial disputes and cannot be held to be violating their fundamental right to privacy.

A bench of Justices B.V. Nagarathna and Satish Chandra Sharma passed the judgment while setting aside an order passed by Punjab and Haryana High Court, which had taken a contrary view that such privileged communication between husband and wife cannot be used by one against the other in matters relating to divorce and other matrimonial disputes.

The apex court passed the verdict while interpreting Section 122 of the Indian Evidence Act and Article 21 of the Constitution, relating to the fundamental right to life and personal liberty.

Section 122 of the Evidence Act says: “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."

Justice Nagarathna, who authored the judgment, observed: “Under Section 122 of the said Act (Indian Evidence Act), privileged communication between spouses is protected in the context of fostering intimate relationships. However, the exception under Section 122 of the Evidence Act has to be construed in the 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 the present case, the husband, Vibhor Garg, had filed the appeal aggrieved by the high court judgment of November 12, 2021, wherein it allowed the plea of his estranged wife Neha that secretly recorded mutual conversation cannot be used by him against her in the ongoing matrimonial dispute between them before the family court in Bhatinda.

The family court had allowed Garg to use the telephone conversations between the spouses recorded by him and stored in the memory cards of his mobile phone as evidence.