From Secret Recordings to Private Surveillance: Where Should Matrimonial Evidence Stop?

*Khushi Bhati

What happens when the technology that once made it easier for a spouse to prove matrimonial allegations gradually becomes a tool of surveillance within marriage? Recently, in the case of Himanshu Chordia v. State of Rajasthan, the husband submitted 92 videos and 237 photos to prove adultery. The Supreme Court noted that the manner in which these were presented suggested they had been obtained through a private investigator, raising questions about who took the photos and the implications for the other spouse’s privacy. This shows the court’s concern over the method used to collect such evidence.

However, barely a year earlier, a similar issue was raised in Vibhor Garg v. Neha. There, the court restored the Family Court’s order permitting the husband’s non-consensually recorded phone calls with his wife to be taken on record and considered as evidence, in support of his allegations of mental cruelty. While this case focuses on the admissibility of covert evidence, Himanshu Chordia raised further questions about the collection of such evidence. Read together, these cases raise one important question: whether the relevance of the evidence is sufficient for its admission, or the manner in which it was obtained should also be considered. As not all methods of collecting covert evidence carry the same degree of intrusion into privacy, this article contends that while relevance may remain the threshold for admissibility of the covertly obtained evidence, the method used to obtain such evidence should shape the weight accorded to it, the safeguards governing its use and the liability of the person who collected it.

From Secret Conversations to Courtroom Evidence: What Vibhor Garg Settled

A husband secretly recorded phone calls with his wife and sought to use them as evidence to support his allegations of mental cruelty and seek a divorce on this ground under Section 13(1)(ia) of the Hindu Marriage Act. The family court permitted these memory cards and CDs to be taken on record, subject to proof of their accuracy and found them relevant under Section 14 of the Family Courts Act, 1984 (“FCA”). The Punjab and Haryana High Court set aside the order, stating that the recordings were made without her knowledge or consent and violated her right to privacy.

However, the Supreme Court took a different view and restored the Family Court’s decision, stating that “merely the fact that evidence was not obtained strictly in accordance with law does not absolutely bar the admissibility of such evidence”. The court’s reasoning was based on Section 122 of the Indian Evidence Act (now Section 128 of BSA), and its exception, as well as on Section 14 of FCA, which gives family courts the flexibility to receive evidence obtained in a way that might otherwise be inadmissible, reinforced by Section 20, which gives the Act overriding effect over other laws. The court explained that Section 122 exists to protect the sanctity and confidentiality of marriage rather than privacy under Article 21 of the Constitution, and this protection does not extend to cases where spouses are litigating against each other, finding no breach of the wife’s right to privacy in the present case. Its analysis also extended to the doctrine of illegally obtained evidence, the husband’s right to a fair trial, and the question of whether privacy rights operate horizontally between spouses. The court further relied upon Yusufalli Esmail Nagree and R. M. Malkani to say that a recorded conversation is admissible if it satisfies the three-fold test of relevance, identification and accuracy, and is not rendered inadmissible merely because it was recorded without the knowledge of the person whose conversation was recorded.

What this case settles is narrow in its factual reach, as it only talks about the admissibility of a secretly recorded conversation where the husband himself was a participant, whereas the Court’s reasoning was broader, touching on illegally obtained evidence, the right to fair trial and privacy. But this is not the only form of covert surveillance that can arise in matrimonial disputes, and it remains unclear how this extends to cases where the evidence is collected by a non-participant, which is exactly where Himanshu Chordia enters the discussion a year later.

When Evidence is Collected Through Surveillance: What Himanshu Chordia Exposes

A year later, a similar question appeared, but in a different form. In this case, the wife filed for maintenance under Section 125 of the Code of Criminal Procedure, 1973 (now Section 144 of the BNSS). To oppose this, the husband filed an application under Section 125(4) and submitted photos and videos to seek denial of the interim maintenance. The Trial Court held that it could not determine the authenticity and originality of the documents at the stage of granting interim maintenance, and the Rajasthan High Court upheld the view. However, the Supreme Court stated that where adultery can be proved ex facie from the documents produced before the court, through clear and cogent evidence, Section 125(4) can act as a bar on the interim maintenance. Therefore, the High Court’s order was set aside and remanded for reconsideration.

But before sending it back, the Court turned to the provenance and evidentiary value of the documents, consisting of around 92 videos and 237 photos. The manner in which they were presented suggested that they had been taken by a private investigator, so the court raised questions as to “Who took these pictures? Did they have any authorisation to do so? What is the procedure for storing these pictures once taken? What are the implications for the right of privacy of individuals, protection of their personal data, etc.?” The court also questioned whether the material was genuine, doctored or morphed. The court further questioned the lack of adequate regulation for private investigative agencies, and noted that the provisions governing the admissibility of electronic evidence do not by themselves govern the broader concern of its collection method. Importantly, the Court directed that the judgment be sent to the Secretary, Ministry of Law and Justice, and the Chairman of the Law Commission of India, for their consideration.

Unlike the Vibhor Garg, which concerned a participant’s own reading, here the court questioned the authenticity, authorisation and manner of collection of the documents submitted by the husband, as well as their implications for the privacy of the spouse. But neither case answers the larger question that the right to prove a matrimonial claim cannot automatically become a right to use every method of surveillance to obtain that proof.

Drawing a Line Between Proof and Surveillance

Should two ways of secretly obtaining evidence be treated in the same way merely because both are used to prove matrimonial wrong? A spouse can secretly audio-record conversations, record telephonic conversations, use pinhole cameras, install CCTV cameras in private spaces, use a spy app, or even hire a private investigator. All of these methods may produce relevant evidence, but the degree of intrusion into the privacy of the other spouse is not the same. This distinction becomes important because Vibhor Garg, while referring to the time when Yusufalli and R.M. Malkani were decided, noted that recording devices had to be “carefully placed” and that the process was not as easy as “clicking a button on a mobile phone”.  But the question of whether the method used to collect evidence should itself matter remained unanswered.

Although Vibhor Garg leaves this broader question unanswered, the judgment provides a starting point for considering it, as the amicus curiae in this case proposed that the Court should consider several factors, including the nexus, intent, and intrusiveness of the recording method, along with access, technological inequality between spouses, and the evidence’s authenticity and accuracy. These were, however, submissions made by the amicus curiae, and the Court did not adopt them as a general framework for covert evidence. One thing to note is that these proposed factors were based on the particular case in which the husband himself recorded the phone calls, so they can be adapted to cases like Himanshu Chordia, but need additional considerations like the identity of the collector, the location and duration of the surveillance, and how the material was stored and whether it was subsequently disclosed or shared.

This does not mean that the intrusive method should be outrightly excluded from the purview of evidence. Matrimonial allegations are often related to the private sphere of a relationship, where conventional evidence is usually difficult to obtain; for that reason, family courts are provided with discretionary power under Section 14 of FCA to receive evidence that may otherwise be inadmissible under the ordinary rules of evidence. But this discretion should not mean the family courts can treat every method of obtaining evidence alike, as the right of one spouse to prove matrimonial wrong or to have a fair trial must be balanced against the right to privacy of the other spouse. The method of collection should instead inform the evidentiary weight and reliance placed on the material, the protective procedures governing its use, such as in-camera hearings or sealed access, and any independent civil, criminal or data-protection liability arising from unlawful collection.

In K.S. Puttaswamy v. Union of India, the Supreme Court recognised privacy as an aspect of dignity and autonomy and as protecting the private sphere of an individual’s life, including family and marriage, making the extent of intrusion particularly relevant where that sphere is entered to obtain matrimonial evidence. The factors proposed by the amicus can therefore provide a starting point for extending this inquiry beyond covert recordings to third-party surveillance more broadly, even though Vibhor Garg itself held that privacy was not a relevant basis for excluding spousal communications within the Section 122 exception. The more intrusive the method of collection, the stronger the justification that should be required before the material is acted upon.

Conclusion

The central concern is therefore not whether courts deciding matrimonial and maintenance disputes should have access to covert evidence, but how that access should be exercised when obtaining the evidence itself intrudes into the private sphere of a spouse. Restricting such evidence altogether could undermine a spouse's ability to establish a matrimonial wrong, and the concern instead is ensuring that the pursuit of proof does not make increasingly intrusive methods of surveillance routine. A method-of-collection inquiry can preserve the evidentiary flexibility of courts while affecting the weight and reliance placed on the evidence, requiring appropriate protective safeguards, and leaving open any independent civil, criminal or data-protection liability arising from unlawful collection.

*Khushi Bhati is a third-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.