Authored By: Ananya Ghose
Shyambazar Law College, University of Calcutta
Abstract:
The rise of smartphones, cloud storage, messaging applications, and social media has transformed matrimonial litigation, shifting the evidentiary landscape from physical records to digital footprints. This development raises questions about authenticity, privacy, consent, and the risk of manipulation. The Supreme Court’s decision in Vibhor Garg v Neha (2025) marks a significant turning point by holding that secretly recorded spousal conversations are admissible, subject to statutory safeguards. This article analyses the evolution of digital evidence in Indian family law, evaluates the ethical and legal challenges it presents, and compares emerging global approaches. It argues for a calibrated doctrine of judicial discretion supported by strong procedural safeguards, forensic standards, and technological solutions to balance truth seeking with privacy and fairness.
Introduction
Matrimonial litigation in the twenty first century increasingly unfolds in a digital ecosystem. Smartphones, cloud storage, instant messaging applications, social media platforms, and portable memory devices have permeated every aspect of personal life, including intimate relationships. Consequently, the nature of evidence presented in family courts has undergone a profound transformation. Traditional forms of proof such as handwritten diaries, physical letters, oral testimonies, medical certificates, and witness statements now share space with electronic records including WhatsApp chats, call logs, messages on social networking sites, audio and video recordings, digital photographs, location data, and metadata extracted from devices.
This shift is not merely technological; it raises deep questions about authenticity, reliability, privacy, consent, and fairness. Electronic material is susceptible to manipulation, selective presentation, and contextual distortion. Family courts, which historically relied on the Indian Evidence Act 1872 (IEA), must now adapt evidentiary principles to align with the Bharatiya Sakshya Adhiniyam 2023 (BSA), while simultaneously ensuring that justice is not undermined by the misuse of technology. The challenge, therefore, is not simply the admission of digital records, but their proper evaluation within a framework that balances truth finding with protection of rights.
This article examines the historical shift from traditional evidence to the digital corpus now dominant in matrimonial disputes. It analyses how Indian courts, culminating in the Supreme Court’s landmark judgment in Vibhor Garg v Neha (2025), have responded to the dilemmas of secretly recorded conversations and covert surveillance. It evaluates the key risks created by digital evidence, compares India’s evolving jurisprudence with practices in foreign jurisdictions, and proposes procedural, forensic, and legislative safeguards to ensure that the promise of digital evidence does not eclipse privacy, autonomy, or dignity. Ultimately, the article argues for a doctrine of judicial discretion strengthened by rigorous safeguards and technological innovations that preserve integrity and fairness.
- From Diaries to Digital Recordings: What Changed
- Traditional Matrimonial Evidence and Its Characteristics
Historically, matrimonial disputes relied primarily on forms of evidence rooted in physicality: diaries, letters, notes, affidavits, medical reports, oral testimony, and witness accounts. Such material possessed certain inherent features. Physical custody could be traced, signatures were tangible indicators of authorship, alterations were usually detectable, and the context of communication was often preserved in its complete form. These forms of proof, though subjective and limited, were relatively resistant to large scale manipulation.
Even where disputes were emotionally charged, evidence was restricted by the practical limits of technology: spouses could not effortlessly record every conversation or capture daily interactions. As a result, the evidentiary record tended to be narrower but more stable.
The Advent of Digital Evidence
The proliferation of smartphones, cloud backups, encrypted messaging platforms, and social media has radically expanded the evidentiary field. Today, matrimonial petitions routinely include:
- WhatsApp chats, Telegram messages, and social media private messages,
- Email exchanges, posts, comments, and metadata,
- Audio and video recordings of conversations and events,
- GPS location data, call logs, and device logs,
- Digital banking transactions and alerts,
- Photographs and screen recordings stored locally or on cloud services.
These forms of evidence carry certain advantages. They frequently contain precise timestamps, capture conversations verbatim, reflect tone through audio or video components, and offer contemporaneous documentation that is often more reliable than retrospective recollection. In many cases involving cruelty, harassment, or domestic violence, digital footprints provide the only available record of behaviour within private spaces.
However, digital evidence brings with it a distinct set of challenges: ease of alteration, risks of misinterpretation, selective extraction, and the possibility of fabrication through tools that can edit images, alter audio, or splice video.
III. Statutory Framework: IEA to BSA
India’s shift from the IEA to the BSA reflects an attempt to respond to a digital era of communication.
Electronic Evidence under the Indian Evidence Act 1872
Electronic evidence was incorporated into the IEA through Sections 65A and 65B. Section 65B laid down stringent requirements for admitting electronic records, including mandatory certification by a person in lawful control of the device. The Supreme Court in Anvar PV v PK Basheer (2014) held that compliance with Section 65B was not a procedural formality but a mandatory condition for admissibility. This marked a significant departure from earlier practice, where courts often accepted printouts or screenshots without robust certification.
Subsequent cases, including Tomaso Bruno v State of Uttar Pradesh (2015), reinforced the importance of authentication, chain of custody, and reliability. However, family courts, empowered by the Family Courts Act 1984 to adopt a more flexible approach, sometimes admitted unauthenticated digital material subject to final evaluation at the stage of appreciation.
Electronic Evidence under the Bharatiya Sakshya Adhiniyam 2023
The BSA consolidates and modernises the framework for electronic evidence. Provisions such as Sections 61 and 63 continue the insistence on certification and lawful control. While the substantive principles remain like the IEA, the BSA aims for a technologically neutral framework that recognises digital records as documents, provided statutory conditions are satisfied. According to Section 63 BSA the conditions are:
- The computer or communication device was regularly used by a person having lawful control during the relevant period.
- Information of the same kind was regularly entered into the device in the ordinary course of activity.
- The device was operating properly, or any malfunction did not affect the accuracy of the record.
- The electronic record accurately reproduces or is derived from the information so entered.
The BSA therefore maintains the core philosophy: digital records are admissible, but only through safeguards ensuring integrity and trustworthiness.
- Recent Jurisprudence: From Resistance to Acceptance
- Foundational Judicial Approach
Before 2025, Indian courts approached digital evidence with caution. Concerns about manipulation, lack of context, and privacy violations shaped judicial attitudes. Many judgments admitted digital evidence only as corroborative material. Courts were aware that screenshots can be altered, conversations can be selectively extracted, and audio clips can be edited.
The 2025 Turning Point: Vibhor Garg v Neha
In Vibhor Garg v Neha (2025), the Supreme Court confronted one of the most contentious questions in matrimonial law: Whether secretly recorded spousal conversations are admissible in divorce proceedings?
Facts
The husband sought to introduce covertly recorded phone conversations to establish cruelty under Section 13 (grounds for divorce available to both husband and wife) of the Hindu Marriage Act 1955. The Family Court admitted the recordings, but the High Court reversed, holding that such evidence violated the wife’s right to privacy. The Supreme Court overturned the High Court.
Holding
The Supreme Court held that covert recordings between spouses are admissible in matrimonial proceedings, provided they satisfy statutory requirements of relevance, identification, and accuracy, along with the procedural conditions for electronic evidence under the IEA or BSA. According to Supreme Court rules Right to Privacy not above Right to Fair Trial.
Rationale
- Spousal privilege under Section 122 of the IEA does not apply to proceedings between spouses –
The Court underscored that the privilege exists to preserve marital harmony, not to shield communications in litigation between spouses. - No absolute right to privacy within matrimonial litigation –
The Court held that the fundamental right to privacy is not violated merely because one spouse records another for evidentiary purposes, especially where the marriage has already deteriorated. - The act of secret recording itself may indicate a breakdown of trust –
The Court reasoned that excluding such evidence may undermine truth finding. - Procedural safeguards remain essential –
Compliance with conditions for electronic evidence remains mandatory.
Significance
The ruling marks a watershed moment. It clarifies that covert evidence, though ethically contentious, can be judicially admissible. It also aligns Indian practice with several foreign jurisdictions that admit covert recordings subject to safeguards.
- Challenges and Risks in the Digital Age
- Authenticity, Forgeries, and Tampering
Digital records are vulnerable to alteration. Audio and video editing software can splice segments, change voices, remove context, or fabricate events. Screenshots may be manipulated. Without a proper chain of custody, even genuine files may lose integrity.
The Supreme Court has repeatedly emphasised the importance of:
- Source identification,
- Hash value verification,
- Forensic extraction from original devices,
- Proper certification.
Without these safeguards, digital evidence risks being unreliable.
Consent, Privacy, and Surveillance
Covert recordings raise moral and constitutional concerns. Even though Vibhor Garg holds them admissible, the ethical tension remains. Routine acceptance of covert evidence may incentivise domestic surveillance, erode marital intimacy, and normalise distrust. There is also a risk of parties weaponizing private conversations for leverage or harassment.
Impact on Marital Privilege
Section 122 of the IEA (and the corresponding BSA provision) historically protected confidential spousal communications. The exception for proceedings between spouses, though statutorily grounded, must be applied cautiously or it may render the privilege hollow.
Admissibility vs Probative Value
Courts may admit digital evidence, but admission does not guarantee weight. Judges frequently treat digital material as corroborative because:
- Context may be missing,
- Conversations may be selectively recorded,
- Parties may present only favourable excerpts,
- Metadata may be incomplete.
Therefore, a gap persists between admissibility and persuasive value.
Addressing the Challenges: Pathways Forward
Forensic and Procedural Safeguards
- Mandatory forensic preservation:
Courts should require forensic extraction of digital files, maintenance of hash values, and secure chain of custody. - Preference for original devices:
Printouts, PDFs, or screenshots should be considered secondary evidence. Primary devices, memory cards, or cloud logs should be produced wherever possible. - Strict statutory compliance:
Certification under the BSA must be treated as indispensable. - In camera proceedings:
Sensitive material should be examined in private to avoid humiliation or misuse. - Opportunity for cross examination:
Parties must be allowed to challenge authenticity and context, including through forensic experts. - Relevance and proportionality:
Courts should limit admission to what is strictly necessary for fair adjudication.
Judicial Discretion
Family courts possess broad discretion to admit or limit evidence. Such discretion must be exercised to balance privacy rights against truth seeking. Courts may:
- Exclude irrelevant recordings,
- Strike out portions violating dignity,
- Seal sensitive content,
- Prohibit dissemination.
Legislative or Regulatory Guidelines
Parliament or relevant authorities could consider:
- A statutory code on digital evidence in matrimonial disputes,
- Guidelines on preservation, authentication, and privacy,
- Obligations on lawyers to avoid unethical surveillance,
- Mechanisms for redaction (hiding or deleting certain parts of a text so others cannot see them) and sealing,
- Penalties for fabrication or unlawful recording.
Technological Solutions
Emerging scholarship suggests using:
- Blockchain-based evidence chains,
- Tamper-proof digital repositories,
- Court supervised electronic vaults.
Such innovations could ensure integrity by creating immutable records of evidence submission. However, privacy concerns must be considered, and access must be carefully controlled.
VII. Comparative Perspectives
United Kingdom
UK family courts occasionally admit covert recordings but apply a balancing test considering:
- Relevance,
- Fairness,
- Impact on children,
- Privacy,
- Ethical implications.
In a landmark UK Court of Appeal Case – Re B (Children) [2017] EWCA Civ 1579, the Court expressed concerns about parents recording each other, noting the corrosive effect on relationships.
United States
The admissibility of covert recordings varies by state. Some states require two party consent; others permit one party consent. Illegally obtained recordings may attract criminal liability even if admissible in family proceedings. Courts emphasise authenticity and proportionality.
Australia
Australian courts admit covert recordings under the Evidence Act 1995, subject to conditions, but may impose costs or sanctions for inappropriate recording. Privacy legislation also plays a role.
Relevance for India
India’s evolving jurisprudence mirrors global trends: cautious acceptance of covert recordings, strong emphasis on authenticity, and concern for privacy. The absence of a dedicated statutory code, however, leaves key questions unresolved.
VIII. Critical Analysis
While digital evidence increases access to truth, it also risks weaponisation. The ease of recording may lead to:
- Surveillance within marriages,
- Harassment,
- Distorted narratives through selective clips,
- Excessive litigation over authenticity,
- Emotional harm due to exposure of intimate conversations.
The forensic burden is significant. Family courts, often understaffed and overburdened, may not have access to digital forensics laboratories or technical expertise. This can undermine fair adjudication.
The Vibhor Garg judgment, though progressive, must be accompanied by institutional safeguards to prevent misuse.
Conclusion and Recommendations
The transformation from diaries to digital recordings represents a structural shift in matrimonial evidence. The Supreme Court’s judgment in Vibhor Garg v Neha confirms that Indian courts are willing to adapt to technological realities. Digital evidence offers richer and more contemporaneous proof, empowering victims of cruelty or harassment who may otherwise lack documentation.
Yet, the proliferation of digital evidence raises profound concerns. Covert recordings can erode trust, encourage surveillance, and compromise privacy. Manipulated or selectively edited material can distort truth, and the forensic burden on courts may impede justice.
To ensure that digital evidence strengthens rather than undermines matrimonial adjudication, this article recommends:
- Robust procedural and forensic safeguards,
- Strict statutory compliance with the BSA,
- Careful judicial discretion, especially in family courts,
- Legislative guidelines to regulate digital evidence,
Technological systems to preserve integrity.
Ultimately, digital evidence must be integrated into matrimonial law in a manner that upholds fairness, dignity, and truth. The goal is not to allow technology to invade intimacy, but to ensure that justice in the digital age reflects both the realities of communication and the foundational principles of privacy and autonomy.
Bibliography
Cases
Anvar PV v PK Basheer (2014) 10 SCC 473.
Tomaso Bruno v State of Uttar Pradesh (2015) 7 SCC 178.
Vibhor Garg v Neha (2025) INSC 829.
Landmark UK Court of Appeal: Re B (Children) [2017] EWCA Civ 1579.
Legislation
Bharatiya Sakshya Adhiniyam 2023 – Sections 61 and 63.
Family Courts Act 1984.
Hindu Marriage Act 1955 – Section 13 (Grounds for Divorce).
Indian Evidence Act 1872 – Sections 65A, 65B, 122.
Books and Articles
P Casey and M Smith, Digital Evidence, and the Courts (Oxford University Press 2020).
S Sengupta, ‘Privacy, Surveillance and Family Law’ (2021) 43 Journal of Indian Law and Society 112.
R Subramanian, ‘Authenticating Electronic Evidence in India’ (2020) 12 National Law School Journal 45.
Reports and Other Sources
K Sahay, ‘Blockchain and the Future of Evidence Integrity’ (2022) SSRN.
Ministry of Home Affairs, Report on Digital Evidence Management in India (Government of India 2021).
Supreme Court Observer, Case Analysis: ‘Vibhor Garg v Neha’ (2025).
