A question I get asked often in matrimonial consultations is: “Can I use a call recording as evidence against my spouse in court?” For years, the answer was murky, with High Courts across India taking divergent views. That uncertainty has now largely been settled, and family courts can no longer simply brush aside such evidence.
The Legal Position Has Shifted:
Traditionally, Section 122 of the Indian Evidence Act, 1872, protected communications between spouses, and several High Courts treated secretly recorded conversations as an invasion of the other spouse’s privacy — inadmissible on that ground alone. Courts in Punjab and Haryana, among others, took this restrictive view, holding that recordings made without a spouse’s knowledge or consent violated their right to privacy under Article 21.
That position has now been decisively clarified. The Supreme Court, in *Vibhor Garg v. Neha, held that Section 122’s marital privilege contains an explicit exception for legal proceedings *between spouses. In other words, the privilege that protects marital confidences from the outside world does not apply when the spouses are litigating against each other. The Court also made a candid observation worth remembering: when spouses are secretly recording one another, that itself is a symptom of a broken relationship, not a reason to shut out relevant evidence.
Why Family Courts Cannot Simply Ignore Such Evidence:
This reasoning is now filtering down into practical outcomes in cases involving adultery and maintenance claims — exactly the situation captured in a recent Madhya Pradesh High Court order, which held that a family court cannot ignore secretly recorded calls when adultery is raised as a defence to a maintenance claim under Section 125 CrPC (now Section 144 BNSS).
This matters because adultery, where established, can operate as a statutory bar to maintenance. If a spouse has probative material — including call recordings — bearing directly on that issue, a court cannot decline to even examine it merely because it was obtained without the other spouse’s knowledge.
For litigants, the takeaway is two fold:
- A recording is not disqualified simply because it was secret. Lack of consent, by itself, is no longer a good enough reason for a family court to refuse to look at it.
- Foundation still matters.* Courts will still scrutinise how the recording was obtained, whether it has been tampered with, and whether it genuinely relates to a fact in issue — such as adultery raised against a maintenance claim.
If you are considering relying on call recordings, or defending against them, in a matrimonial matter, the manner of collection, preservation of the original source, and a clean chain of custody can make the difference between evidence that is admitted and weighed, and evidence that is admitted but given little value.