*Rudraksh Lakra and Nidhi Jha

(Source: CookieYes)

The Supreme Court’s ruling in Vibhor Garg v. Neha admits secretly recorded spousal conversations as evidence, disregarding Puttaswamy I and privacy jurisprudence. This critique argues the judgment undermines constitutional rights, legitimizes domestic surveillance, and disproportionately harms women, reinforcing patriarchal control under the guise of evidentiary necessity and fairness.

Introduction

The Supreme Court of India’s judgment (“Indian SC or Court”) in Vibhor Garg v. Neha (“Vibhor Garg”), delivered on July 14, 2025, permitting secretly recorded telephonic conversations between spouses as admissible evidence, sets a troubling precedent. The decision wields a sledgehammer against a complex and sensitive issue, reducing nuanced questions of privacy, consent, and power to a narrow evidentiary debate.

We structure the critique of the decision into three parts. First, we examine the Court’s treatment of the admissibility of illegally obtained evidence more broadly. Second, we consider the specific implications of admitting such evidence in matrimonial proceedings, arguing that the judgment marks a regression in the right to privacy jurisprudence in India. Third, we offer a feminist critique, exposing how the decision perpetuates a legal framework that structurally disadvantages women by intensifying domestic surveillance and eroding both decisional and informational autonomy within intimate relationships.

Admissibility of Illegally Obtained Evidence

The Court in Vibhor Garg cites Yusufalli Esmail Nagree v. State of Maharashtra 1968 (“Yusufalli Esmail Nagree”) and R.M. Malkani v. State of Maharashtra 1973 (“R.M. Malkani”) for the proposition that merely the fact that  evidence is illegally obtained does not make it inadmissible [Para 9.3-9.4]. The Court further observed that:

“During the years when this Court decided cases such as Yusufalli Nagree and R.M. Malkani, bugging, snooping, tapping were considered acts that had a clear element of invading the privacy of an individual for the purpose of gathering concrete evidence…..

Even in those times, the Courts have encouraged the need for having better evidence for adjudication than to close the doors of technology and refuse to accept the material in front of them on the mere ground that privacy would be breached” [Para 10.4].

On this basis, the Court held that even evidence obtained in violation of constitutional rights like privacy is admissible. Such as a conversation recorded without the knowledge or consent of the speaker, will be admissible. However, the legal basis for this conclusion is taken for granted in the judgment, with not even a reference to the landmark decision of the Court in Puttaswamy v. Union of India 2017 (“Puttaswamy I”). This omission is particularly troubling. As Bhandari and Lahiri have argued, Puttaswamy I directly or indirectly overruled several earlier cases such as R.M. Malkani, Yusufalli Esmail Nagree, M.P. Sharma v. Satish Chandra (“M.P. Sharma”) 1954, Pooran Mal v. Director of Inspection (Investigation) 1974 (Pooran Ma), and State v. Navjot Sandhu 2005, especially in relation to the admissibility of evidence obtained in violation of the right to privacy.

Crucially, these earlier cases were decided at a time when the right to privacy was not a fundamental right. In fact, in cases like Pooran Mal and M.P. Sharma, the Court explicitly held that India lacked any constitutional recognition of a right to privacy analogous to the Fourth Amendment of the U.S. Constitution, from which doctrines such as the “fruit of the poisonous tree” emerged.

However, Puttaswamy I overruled this line of thinking. It affirmed privacy including informational autonomy as a core fundamental right under Article 21 and adopted the proportionality test as the standard for evaluating privacy violations. The first limb of this test mandates a clear legal basis for any restriction on privacy. Hence, any evidence collected without a legal basis, which results in an infringement of the right to privacy, is inadmissible. Bhatia has drawn a distinction between illegally obtained (but potentially admissible) and unconstitutionally obtained (and thus inadmissible) evidence, based not only on Puttaswamy I but also on Selvi v. State of Karnataka 2010 (see here and here). Therefore, Puttaswamy I signals a doctrinal shift in Indian criminal jurisprudence from a “crime control” model focused on state power and enforcement to a “due process” model centered on individual rights, dignity, and constitutional accountability. This was shown in cases like Vinit Kumar v Central Burau of Investigation (2019),and Jatinder case v Central Bureau Of Investigation (2022).

In both the reporting and analysis of this case, the issue of admitting unconstitutionally obtained evidence received insufficient attention, despite being more significant and troubling than the specific legal question before the Court. The Indian Supreme Court was presented with a narrow question: whether such evidence is admissible in matrimonial proceedings, specifically in a divorce case. Yet, the Court went further, broadly rejecting the idea that evidence obtained through unconstitutional means should be excluded in any context. Particularly troubling is that this position was taken without any reference to Puttaswamy I the central case on the right to privacy or to various High Court decisions that have grappled with similar questions. In taking this approach, the Court effectively aligns itself with the crime control model, at the cost of eroding the transformative aspirations of Constitutionalism 3.0 in the post-Puttaswamy era.

Breaking the Marital Seal: Admitting Illicit Recordings in Divorce Litigation

In Vibhor Garg, the husband (the appellant) had secretly recorded a telephone call between himself and his wife, and he sought to admit this evidence into the record during divorce proceedings. Reliance was placed on Section 14 of the Family Courts Act, 1984, read with Section 122 of the Indian Evidence Act, 1872 (now Section 128 of the Bharatiya Sakshya Adhiniyam, 2023).. The former allows the Family Court to receive any evidence, statements, reports, documents, etc., that may assist in adjudicating the dispute between the parties, while the latter generally protects communications between spouses from disclosure but creates exceptions like in cases where there is litigation between them.

In this case, the wife (the respondent) opposed the admission of the evidence, arguing that the non-consensual recording whether explicitly or implicitly without her knowledge amounted to a violation of her right to privacy and, therefore, the evidence was not admissible. For this case law from various High Courts was relied upon which endorsed a Puttaswamy I exclusionary rule. Abhishek Ranjan v. Hemlata Chaubey (2023), Saroj v. Aashish Yadav (2024), Aasha Lata Soni v. Durgesh Soni (2022), Neha v. State of Haryana (2020), and Dharmesh Sharma v. Tanisha Sharma (2024)

The case turned on the Indian SC’s interpretation of Section 122 of the Indian Evidence Act. The Court noted that “privacy of communication exists between spouses, as has been recognised by Section 122” [Para 10.3]. However, it crucially drew a distinction that the privacy protected under Section 122 is a common law version, rather than the constitutional version of privacy recognised in Puttaswamy I. It remarked that:

“Section 122 of the Evidence Act does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution, let alone invade upon such right. The reason is because Section 122 of the Evidence Act 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” [Para 12].

The Court’s interpretation of the constitutional and statutory conception of privacy as existing in siloes is unpersuasive. As a matter of constitutional principle, Section 122 of the Evidence Act must be consistent with the privacy framework established in Puttaswamy I. To the extent that Section 122 enables the admission of illegally obtained evidence between spouses, it violates the constitutional conception of privacy. Therefore, the statutory versions of privacy must be interpreted in a manner including being read down or stuck down to ensure compliance with the constitutional formulation.

Moreover, the Court’s reasoning tethered the common law privacy under Section 122 to the Victorian-era ideal of the “sanctity of marriage” [Para 12.2-12.6]. The Court clearly stated “the founding rationale for Section 122 of the said Act….was to protect the sanctity of marriage and not the right to privacy of the individuals involved” and “thus the right to privacy is not a relevant consideration” [Para 12.6]. By this logic, once marital harmony breaks down, so too does the privilege reduce privacy to a derivative, rather than an independent, right. This judicial stance inherently undermines  privacy by tying it to the           preservation of traditional social institutions rather than recognizing it as inherent and inalienable.

Second, the right to a fair trial is treated as a magic wand to wave away the constitutional right to privacy. There is no meaningful reasoning offered for why the right to a fair trial should override the constitutional right to privacy in this context. The Court made no effort to balance these rights (through a “double proportionality” analysis), nor did it apply the standard of proportionality to assess whether the privacy violation caused by the admission of such evidence could be justified. One could even argue that the exclusionary rule based on Puttaswamy I actually promotes the right to a fair trial particularly for the person whose privacy was violated by the secretly recorded conversations. An objection might be raised that applying the exclusionary rule to illegal recordings between spouses could disadvantage women, who often lack other reliable means of documenting abuse. Yet, as we explain in the following section, such a rule ultimately safeguards women, given that men are more likely to create and misuse such recordings due to unequal access to technology and women’s generally lower levels of digital literacy. In this light, the exclusionary rule functions as a check against the disproportionate gendered harms that would arise from admitting such evidence. Moreover, while we acknowledge that in certain cases the rule may appear to operate against women’s interests, we contend that its preservation remains vital not only because it protects the privacy rights of both spouses. But also because, from the broader perspective of privacy jurisprudence, the exclusionary rule whether in criminal cases or civil matrimonial disputes work to the overall greater advantage of those who are structurally vulnerable to abuse of power.

Digital Panopticon at Home: A Feminist Critique

The Indian SC decision in Vibhor Garg fails to reckon with the gendered realities of surveillance within intimate relationships. By allowing the admissibility of secretly recorded conversations between spouses in matrimonial litigation, the Court legitimizes a form of technological abuse that disproportionately affects women, effectively reinforcing the architecture of patriarchal control within the home. This judgment not only misreads the privacy guarantees affirmed in Puttaswamy I but also disregards the extensive body of feminist scholarship that highlights how the private sphere often serves as a site of domination masked by romanticized ideals of family and marital harmony.

Feminist scholars such as MacKinnon (see here and here) and Allen have long argued that privacy, without attention to power dynamics, can shield abuse rather than protect autonomy. Yet the Court’s reasoning in Vibhor Garg does the opposite: it strips women of their privacy rights precisely where they are vulnerable to coercion and control. By tethering the scope of Section 122 of the Indian Evidence Act to a narrow, common-law privilege rooted in the “sanctity of marriage,” the Court effectively resurrects a Victorian-era ideal that positions privacy as a derivative of marital harmony, rather than an independent constitutional right. This understanding collapses once the marriage breaks down, thereby revoking a woman’s entitlement to privacy at the very moment she is likely to be most exposed to manipulation, surveillance, and legal disadvantage.

The implications of this ruling are particularly grave when considering the possibility of technological abuse. The rise of inexpensive, accessible surveillance tools has made it easier for abusers to monitor, record, and control their intimate partners under the guise of evidence gathering. These secret recordings, when admitted in court, become not just tools of legal strategy but instruments of domination used to discredit, humiliate, or blackmail women. The Court’s judgment fails to engage with this reality. Its silence on the gendered dynamics of digital surveillance mirrors a broader pattern of institutional disregard for how women’s autonomy is eroded through informational control.

The Court also ignores the deeply unequal terrain upon which Indian matrimonial relationships often operate. Many women face severe economic dependence, lack of access to technology, and lower levels of digital literacy factors that intensify their vulnerability to surveillance. The ability of a husband to secretly record conversations and later introduce them as evidence in divorce proceedings becomes a potent tool of coercion, especially in contexts where women may be pressured into remaining silent or withdrawing legitimate claims out of fear that private conversations will be weaponized against them. As Cohen has argued, privacy is not merely about secrecy, but about the capacity for self-development free from domination (see here, here and here). By validating secret recordings, the Court extinguishes that capacity within the marital sphere.

From a feminist perspective, the decision reifies the public/private divide that constitutional jurisprudence had begun to dismantle. It enables a panoptic domestic regime in which women must navigate their most intimate relationships under the threat of surveillance and exposure. This not only chills free expression within the home but reinforces the idea that women’s rights are conditional dependent on the status of their marriage

The Vibhor Garg judgment therefore exemplifies what Reva Siegel has called “preservation through transformation” where old hierarchies are preserved through new legal justifications. In validating secret recordings under the guise of evidentiary necessity, the Court affirms male power in the private sphere through the language of neutrality and fairness. But fairness devoid of context is injustice by another name. In failing to recognize the feminist dimensions of privacy, autonomy, and technological harm, the Court has not only weakened constitutional protections but also sanctioned a deeply gendered form of control that will have enduring consequences for women’s safety and dignity in India.

Conclusion

The Court’s judgment in Vibhor Garg marks a significant moment in Indian constitutional jurisprudence, one that unfortunately moves against the grain of progressive privacy jurisprudence. By giving a blank cheque for admitting secretly recorded conversations between spouses as evidence, the Court has not only overlooked the transformative constitutional vision established in Puttaswamy I regarding the fundamental right to privacy but has also failed to engage with the profound gendered realities of surveillance within intimate relationships.

In effect, the judgment entrenches a crime control model even within family law, one that prioritizes evidentiary completeness over constitutional fidelity. The judgment’s reliance on outdated gender assumptions and its unsubstantiated prioritization of evidentiary completeness over constitutional fidelity effectively legitimize a form of technological abuse that disproportionately targets women. Rather than advancing the transformative promise of constitutionalism, Vibhor Garg reaffirms patriarchal control cloaked in procedural neutrality. It is imperative that future bench that revisit this precedent and center the realities of privacy, autonomy, and power in their analysis of evidence and rights.

*Nidhi Jha is an LL.M. graduate from Central European University (2024–25) and Jindal Global Law School, India (2024).

*Rudraksh Lakra is a technology law advocate and policy analyst. He holds a B.A., LL.B. (Hons.) degree from Jindal Global Law School, India (2023).