Sajjad Husain LawSajjad Husain Law Associates

Introduction

Can a spouse secretly record their partner's private conversations and use the recording in divorce court? In July 2025, the Supreme Court answered — and in doing so, clarified that this 150-year-old privilege was never really about privacy at all.

Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) continues this run through the closing sections of Chapter IX ("Of Witnesses"), following Section 129 on state-affairs privilege examined in the previous article. This piece explains the privilege's two-part structure, its two narrow exceptions, why a third party who simply overhears a spousal conversation is never bound by it, and the Supreme Court's fresh ruling on secretly recorded conversations between spouses.

Section 128 BSA and Section 122 IEA: Unchanged

Section 128 carries over Section 122 of the Indian Evidence Act, 1872 without any change to its wording, confirmed across independent bare-act sources — the full sentence, both exceptions, and the "is or has been married" language survive intact into the new Act.

Two Separate Bars in One Sentence

The Supreme Court's 2025 ruling, discussed below, drew out a distinction that is easy to miss on a first read: Section 128 actually contains two separate bars, not one.

Both bars give way together, but only in the two situations the section itself names: a suit between the married persons themselves, or a proceeding where one spouse is being prosecuted for a crime against the other.

The 2025 Clarification: Vibhor Garg v. Neha

In Vibhor Garg v. Neha, 2025 SCC OnLine SC 1421 (14 July 2025), a bench of Justices B.V. Nagarathna and Satish Chandra Sharma addressed whether secretly recorded conversations between spouses could be used as evidence in a divorce proceeding. The Court held that they could — because a divorce petition is precisely a "suit between married persons," the statutory exception applied directly. In reaching this conclusion, the Court made a point with consequences well beyond the facts of that case: Section 122's privilege protects the sanctity of the marital relationship, not a constitutional right to individual privacy. The provision is not, and was never designed to be, a privacy shield — it is a narrower rule about who may be compelled or permitted to repeat what was said in confidence between spouses, and that narrower rule simply does not apply once the spouses are litigating against each other.

Worked Example One: The Privilege Applies in Full

A husband is called as a witness in an unrelated criminal trial involving a third party and is asked what his wife told him, in confidence, about a matter connected to the case. Neither spouse is a party to this proceeding, and the wife has not consented to disclosure. Under Section 128, the husband cannot be compelled to answer, and even if he wished to volunteer the information, he would not be permitted to without his wife's consent — both bars operate at full strength here.

Worked Example Two: The Exception Opens the Door

The same husband and wife are now litigating their own divorce, and the wife seeks to introduce a recording of a private conversation in which the husband made admissions relevant to a cruelty allegation. Because this is a suit between married persons — the exact exception named in the text and applied in Vibhor Garg — Section 128's bar does not apply, and the recording can be considered as evidence, subject to ordinary rules about authenticity and reliability.

Privilege Is Not the Same Question as Competency

Section 128 is often confused with a related but distinct question addressed elsewhere in this chapter: whether a spouse is even competent to testify against their partner at all. Section 126, covered later in this run, governs that separate question of competency in criminal proceedings. Section 128 assumes competency and asks a narrower follow-up question — even where a spouse is allowed to take the stand, what specific confidential communications can they be compelled or permitted to reveal? A spouse can be a fully competent witness in a case and still be barred by Section 128 from disclosing a particular communication made to them in confidence during the marriage, unless one of the two exceptions applies.

The "representative in interest" language in the text also deserves attention: where the spouse who originally made the communication has died, their legal representative — typically an heir or executor administering the estate — can give the consent that would otherwise be required from the deceased spouse personally, allowing the surviving spouse's disclosure to proceed if that representative agrees.

What the Privilege Never Covered: Third Parties

A long-standing rule, confirmed in Appu alias Ayyanar Padayachi v. State, AIR 1971 Mad 194, limits the privilege to the spouses themselves. In that case, a husband's confession to his wife was made in the presence of other people; while the wife herself could not be compelled to disclose the communication, the other witnesses who overheard it were free to testify about what they heard. Section 128 binds only the spouse who received the communication — it has never extended to family members, bystanders, or anyone else who happens to overhear a spousal conversation, and there has been no change to that position under the BSA.

Why This Matters in Practice

For family law practitioners, Vibhor Garg is now the controlling authority for using recorded spousal conversations in matrimonial litigation — the recording's admissibility under Section 128 turns on whether the proceeding is between the spouses themselves, not on how sympathetically the recording was obtained. For litigants outside a matrimonial dispute, the privilege remains a real and current protection — a spouse cannot be made to testify about, or volunteer, confidential marital communications in unrelated proceedings without the other spouse's consent. For anyone assessing whether a piece of evidence is protected at all, the first question is always whether a spouse is doing the disclosing — a third party's testimony about an overheard conversation was never covered, under either the old Act or the new one.

Key Takeaways

1. Section 128 BSA carries over Section 122 IEA unchanged, including its "is or has been married" language, which means the privilege survives divorce.
2. The section contains two separate bars — compelled disclosure and voluntary disclosure without consent — both lifted together only by the two named exceptions.
3. Vibhor Garg v. Neha, 2025 SCC OnLine SC 1421, confirms secretly recorded spousal conversations are admissible in a suit between the spouses themselves, and clarifies the privilege protects marital sanctity, not constitutional privacy.
4. Appu v. State, AIR 1971 Mad 194, confirms the privilege binds only the spouse who received the communication — third parties who overhear it are free to testify.
5. The Law Commission's recommendation to extend protection to intercepted or overheard communications has not been adopted in the BSA.

Conclusion

Section 128 protects a narrower thing than most people assume — not privacy in the constitutional sense, but the specific confidence spouses place in each other, and only outside their own disputes with one another. Vibhor Garg v. Neha makes that narrower purpose explicit, and in doing so opens the door to secretly recorded evidence in exactly the kind of case where it is now most often sought: divorce and matrimonial litigation. The next article in this run turns to a different question of competency entirely — whether, and when, a judge or magistrate can be compelled to testify about their own conduct in a case, under Section 127.