The Legitimization of Spousal Surveillance – Law School Policy Review

*Sheetal Mahek Routray and Aastha Nayak 

(Source:Sarmient)

This article critically examines a recent Supreme Court of India (hereinafter, ‘SC’) ruling, permitting secretly recorded spousal conversations in matrimonial disputes, a significant intrusion into marital privacy. The judgment reinterprets Section 122 of the Indian Evidence Act (hereinafter, ‘IEA’), transforming this colonial provision from a shield of confidentiality into a tool for surveillance. This shift fundamentally alters the architecture of trust by treating marital doubt as a justification for surveillance. Drawing on Foucault’s ‘Panopticon,’ the article contends this creates a ‘Marital Panopticon’ where the possibility of being watched forces spousal behavior to recalibrate. The article warns this normalization disproportionately affects women and represents a shift in the ethical infrastructure of relationships. Ultimately, it calls for judicial scrutiny and a reinterpretation of Section 122 IEA.

Introduction: The SC’s Quiet Intrusion into Marital Privacy

The law rarely enters a marriage quietly. It arrives like an intruder: through petitions, affidavits, and now, perhaps, through the hum of a hidden microphone. The SC recently delivered a judgment that, on its face, appeared like a routine evidentiary clarification: secretly recorded conversation between spouses can be admitted as evidence in divorce proceedings.  The SC was unequivocal in saying: “…we do not think there is any breach of privacy in this…  Section 122 of the Evidence Act does not recognize any such right. On the other hand, it carves out an exception to right to marital privilege in suits between spouses.” Almost off-hand in tone, this sentence carries a jurisprudential weight far heavier than its syntax suggests. Section 122 of the IEA was a provision born in Victorian England and was designed to protect “spousal confidential privilege”. Its original purpose was to cushion matrimonial communications from forced disclosure to preserve harmony between spouses as compelled testimony could create discord in the domestic life. Yet, Section 122 of the IEA was never designed as a license for surveillance. It created a narrow exception which had a simple policy logic that if the marriage was beyond repair, protecting communication served no social purpose. Secret recordings invert this rationale. They occur not after, but before any formal rupture, at a time when trust,  however frayed, still constitutes the architecture of the relationship. The Supreme Court appears to reason that the very act of secretly recording a spouse reflects the breakdown of marital trust, and thus justifies the application of the exception under Section 122 of the IEA. But this framing collapses the distinction between suspicion and separation. It risks turning pre-litigation doubt into post-litigation admissibility. In ordinary civil proceedings, parties are presumed to be strangers or contractual equals; in matrimonial litigation, however, they arrive in court not as litigants first, but as former intimates. This pre-litigation intimacy, rooted in fiduciary and emotional entanglements, makes surveillance uniquely intrusive. The act of covertly recording a spouse while still in a functioning, or at least cohabiting, marriage is not simply evidence collection, but a transformation of the private sphere into a probative battleground. 

Moreover, what the SC has allowed is not consensual sharing of information but non-consensual interception, a unilateral act of surveillance that is void of both confidentiality and consent. If marriages no longer presume confidentiality, what remains of trust, and of the autonomy that the Constitution, in Justice K.S. Puttaswamy v. Union of India, declared to be “intrinsic to dignity”?

This paper argues that the ruling does not simply expand the scope of admissible evidence. It changes the ethical and psychological infrastructure of a marriage, constructing what might be called ‘Marital Panopticon’ – a Foucauldian system where intimacy exists under the shadow of potential surveillance and legitimization of such surveillance culture inside the home disproportionately harms women.  While spouses have always had the ability to testify against each other post-rupture, the act of secret recording introduces a qualitatively different kind of surveillance, one that predates formal legal separation and occurs without confrontation. Unlike testimony, which is retrospective and subject to cross-examination, covert recordings anticipate conflict and instantiate a continuous logic of monitoring. This is not simply an evidentiary evolution; it reconfigures the ethical and psychological infrastructure of marriage itself. In such a system, the presence of a recording device replaces the assumption of trust, and the legitimisation of surveillance within domestic space, particularly in patriarchal contexts, disproportionately harms women. At the centre of this transformation is Section 122 of the IEA, a colonial-era provision that was once a shield for marital confidence but has now been transposed into a sword.

Historical Context and Judicial Divergence: Section 122 IEA

To understand how we arrived here, we must return to Section 122 of the IEA. When James Fitzjames Stephen drafted this statute under colonial rule, he imported the English concept of spousal privilege, albeit with distinctive modifications. In England, the privilege rested with the witness-spouse yet in India, it vested in the other spouse, who could block disclosure of confidential communications. Its objective was simple: to prevent compelled testimony that might destroy conjugal harmony. This policy was a trade-off between administration of justice and preservation of domestic peace – arguably two competing public interests. The framers chose the latter. But the law did not guard every fact a spouse might know. Narrow exceptions were carved out,  when the spouse who witnessed consented, when one spouse was prosecuted for a crime against the other, and when the spouses were litigating against each other. The baseline being, once the harmony is ruptured, protection was no longer merited. The SC ruling makes Section 122 “a Trojan horse”, smuggling in a practice it never intended to authorise. This interpretation becomes even starker when contrasted with earlier judicial reasoning. In Rayala M. Bhuvaneswari v. Nagaphanender Rayala, the Andhra Pradesh High Court dealt with a divorce proceeding where the husband sought to introduce recordings of his wife’s private telephone conversations with her parents and friends, captured secretly while they were living in the United States. He even moved an application under Section 45 of the IEA to send the hard drive to a forensic expert for voice comparison. The court was, understandably, alarmed by the method of evidence gathering, noting that the husband had recorded these conversations without his wife’s knowledge and sought to use them against her in matrimonial litigation. Holding that such conduct violated her right to privacy under Article 21, the court declared it both unconstitutional and immoral, observing:

“If the husband is of such a nature and has no faith in the wife even about her conversations to her parents, then the institution of marriage itself becomes redundant. There should be some trust between husband and wife and in any case, in my view, the right of privacy of the wife is infringed by her husband by recording her conversation.” The court ruled the tapes inadmissible, reasoning that personal liberty under Article 21 extends to telephone conversations in the home, as affirmed in PUCL v. Union of India and R.M. Malkani v. State of Maharashtra. This position is diametrically opposed to the SC’s recent ruling. By treating the existence of marital discord as retroactive justification for surveillance, even when it occurred years before formal litigation was initiated, collapses the protective barrier between marital intimacy and forensic strategy. That the communication in Vibhor Garg (supra) was inter-spousal does not immunise it from scrutiny; on the contrary, the legitimisation of pre-litigation recording between spouses marks a deeper erosion of mutual trust than in Rayala (supra), since it transforms routine marital dialogue into potential evidence. Where the latter saw surveillance as symptomatic of marital collapse, the former normalises it as evidentiary prudence, a shift with grave implications for how we legally interpret privacy, autonomy, and good faith inside marriage.

Foucault and the Micro-Physics of Marital Power

This evidentiary development is not an isolated development. In Shafhi Mohammad v. State of Himachal Pradesh, the SC relaxed procedural safeguards for electronic devices under Section 65B of the IEA, holding that the absence of a certificate should not defeat admissibility if authenticity is established. Videography and other technological tools were validated to be “order of the day” for finding the truth. The SC even suggested their institutionalization in criminal investigation. With the present ruling, it echoes a judicial trend of constitutional jurisprudence of privacy coexisting uneasily with an evidentiary jurisprudence inclined toward surveillance. 

To name this reality, we turn to Michel Foucault. His idea of a ‘Panopticon’, a system where the possibility of constant observation induces self regulation perfectly captures the invisible violence in the act of surveillance. Panopticon is not merely a structure but also a technology of power. Bentham imagined the Panopticon as a prison of perfect vision: a single watchtower at the centre, cells arranged in a circle, and the prisoner never knowing if the eye was on him. It was not brute force that kept the inmates in line but the possibility of being seen, which worked its way under the skin until obedience became instinct. Foucault expanded this carceral context to modern governance, arguing that surveillance, in this sense, is effective not because it is constant but because it is conceivable. Transposing this effect to the domain of marriage, it presents itself as an anticipatory self-regulation within relationships. This does not require guilt or concealment. But it might produce behavioral modification because the stakes of misinterpretation are high. The possibility that a part of speech might be severed from context and repurposed in court recalibrates conduct of spouses. In this sense, the judgment does not simply expand the rules of admissibility, it transforms the phenomenology of trust, converting the marital home into what Foucault theorized as a micro-physics of power.

The Flawed Justification: Hard Cases and Proportionality

This transformation can be defended by invoking “hard cases”, such as the battered wife whose hidden recordings expose years of cruelty, the husband protecting himself from fabricated charges. But these scenarios hinge on intuition, and rights exist for such hard cases. Privacy, post-Puttaswamy, is not a negotiable luxury; it’s a structural condition for autonomy.  The SC skips the proportionality test it prescribed for itself, that any infringement of a fundamental right must satisfy legality, necessity, and least-restrictive means. Covert recording fails all three. There is no statutory mandate authorizing such acts; less intrusive options such as mediation and judicially sanctioned discovery exist although they have remained unexplored, and necessity cannot be presumed simply because there is a lawsuit at hand.

The Family Court’s reliance on Sections 14 and 20 of the Family Courts Act, 1984 (hereinafter, ‘FC Act’), to admit covert recordings as evidence may appear statutorily permissible on the surface, but it is constitutionally unmoored. Section 14 empowers Family Courts to admit evidence beyond the technical confines of the IEA, a provision aimed at reducing procedural rigidity, not dismantling substantive rights. Section 20 merely provides that the FC Act prevails over inconsistent laws, it does not, and cannot, override the Constitution. Yet, in this case, the Court treats these provisions as a license to circumvent the fundamental right to privacy under Article 21 of the Constitution, established in Puttaswamy. Here, no law authorizes private surveillance in matrimonial contexts. No evidentiary necessity was demonstrated, the husband could have relied on testimony, cross-examination, or judicially sanctioned discovery. And certainly, covert, retrospective recording of years-old conversations is not the least restrictive method. Instead, the Court allowed the evidentiary flexibility of Section 14 to become a proxy for constitutional dilution.

The logic that a memory card or phone can act as an “eavesdropper” sidesteps the fact that those devices are deployed by a spouse within an ongoing intimate relationship, often without the knowledge, consent, or power to resist. This cannot be equated with third-party overhearing or forensic discovery. Such conflation effectively normalizes marital surveillance, producing what one might call an evidentiary culture of distrust, antithetical to both the institution of marriage and the spirit of constitutional adjudication.

Moreover, privacy under Puttaswamy operates horizontally, it binds not only the state but private actors. By validating secret recordings, the SC does not merely neglect this horizontality; it erodes it.

Other jurisdictions take the opposite route. UK family courts admit covert recordings sparingly and they often rebuke the practice as corrosive to trust. Canada follows a “one-party consent” rule under Section 183 of the Criminal Code: an individual may legally record a conversation if they are a participant in it. Such recordings are admissible in court. But the law draws a hard line at surveillance – recording a communication you are not part of is a criminal offence, punishable by up to five years’ imprisonment. Australia goes further. Under the federal Telecommunications (Interception and Access) Act 1979, it is generally illegal to intercept calls without the knowledge of the speaker, save in warrant-based exceptions. Organizations must disclose recording at the start of a call, enabling the other party to refuse, even state-level variations, like Queensland’s allowance for one-party recording, remain tethered to notice norms.

It may be argued that foreign examples are cherry-picked. True, global legal regimes vary, some are vague, and many adopt one-party consent standards. But the point is not uniformity; it is caution. Even in one-party consent jurisdictions, courts have grown wary of covert surveillance in family law.

Against this backdrop, the SC’s stance appears anomalous as it is rooted in a 19th-century statute but turbocharged by 21st-century technologies. 

Surveillance, Patriarchy, and the Home

When the Court validates covert recordings, they assume equal technological agency between spouses. This ruling, thus, threatens women’ s right to a fair trial, a concern amplified by India’s significant gender gap in smartphone ownership and technological access. The Mobile Gender Gap Report 2025 highlights a 39% disparity in smartphone ownership between women and men. When evidence can be effortlessly collected using a smartphone, the party with greater access to technology inherently gains an unfair advantage. It’s true that evidentiary imbalances exist across legal systems, including in criminal law where the State enjoys superior investigative capacity. But matrimonial litigation is not adversarial in the same way. Unlike criminal law, family law regulates relationships between co-equal private citizens, embedded in networks of emotional, social, and economic dependency. The use of covert recordings in such contexts cannot be evaluated solely on utility grounds. The means of obtaining evidence matter because the very relationship being adjudicated depends on consent, trust, and personal autonomy.

Rather than excluding all such evidence outright, a more defensible approach, especially in light of Puttaswamy, might be to impose stringent disclosure obligations, demand affirmative judicial scrutiny of proportionality, and establish procedural safeguards to ensure that covertly collected material is not weaponized disproportionately by the more technologically or economically empowered spouse. In this sense, the question is not whether to exclude unequal evidence, but whether to admit it without recognizing the inequality it embeds.

Conclusion

The implications of this ruling extend far beyond the immediate case, setting a dangerous precedent for the future of privacy within the marital home. Today it is an audio clip, tomorrow a keystroke logger and sometime down the line spyware synced to WhatsApp. Each will find legitimacy under the same evidentiary logic. The SC’s ruling, for all its brevity, is epochal. It begins as a footnote in evidence law and ends up as a chapter in the sociology of surveillance. The law need not choose between truth and trust. Covert recordings should pass the proportionality test. Are they indispensable? Is there no less intrusive alternative? Were they judicially authorized? Section 122 must be rewritten, not stretched. Its privilege should attach only during marriage and only against compelled disclosure, not voluntary testimony post-breakdown.

*The authors are second-year undergraduate students at the National Law School of India University, Bengaluru.