Just because it’s admissible does not mean it’s advisable – the role of covert recordings in marriages

In family law litigation, establishing facts can be a formidable challenge. Allegations are often met with outright denials, witnesses are few, and memories are imperfect. Against that backdrop, many litigants believe they have found the ultimate evidentiary trump card: the covert recording.

For litigants, these recordings promise to end the familiar “her word against mine” dilemma with, what is in their eyes, the recorded truth. In reality, the court’s reception is rarely as conclusive or as satisfying as anticipated. Admissibility (getting the recording considered as evidence) is just the first hurdle; questions of fairness, proportionality, and even the recorder’s own conduct quickly follow.

Interestingly, both India and England have recently grappled with the issue of covert recordings.  In India, the Supreme Court recently delivered a landmark judgment in Vibhor Garg v. Neha (2025), holding that covert recordings may be admissible in matrimonial disputes including divorce proceedings. Meanwhile, in England, the Family Justice Council (FJC) published comprehensive guidance (summary available here) in May 2025 that adopts a more restrained approach, warning litigants against the casual use of secret recordings and highlighting the risks – legal (at times, criminal), ethical, and evidential - of relying on them.

The Indian Perspective

In Vibhor Garg v. Neha, the Supreme Court of India considered whether a husband could rely on phone conversations he had secretly recorded with his wife as evidence of cruelty in his petition for divorce.

The wife objected, citing:

• Section 122 of the Indian Evidence Act, 1872, which protects communications made between spouses during marriage;
• Her right to privacy under Article 21 of the Constitution of India; and
• The general impropriety of covert surveillance in intimate relationships.

The Supreme Court, however, permitted the recordings and undertook a comprehensive analysis of the legal position - resolving years of inconsistent case law across various Indian High Courts.

Key Legal findings

1. Spousal communication privilege with a built-in exception
   The Court held that Section 122 does not prohibit disclosure of marital communications when the litigation is between the spouses themselves - including divorce proceedings. This exception applied squarely in the case at hand.
2. Privacy vs fair trial 
   While affirming that privacy is a fundamental right under Article 21, the Court reiterated that it is not absolute. Where the right to privacy comes into conflict with another party’s right to a fair trial, including the right to present relevant evidence, a balance must be struck and, in matrimonial proceedings, the scales may tip toward discovery of the truth.
3. Electronic evidence and relaxed rules in Family Courts
   The Court reaffirmed the admissibility of electronic evidence under Section 65B of the Evidence Act, and invoked Section 14 of the Family Courts Act 1984, which allows family courts to admit any evidence - including covert recordings - that, in their view, aids the adjudication of the case.

But this clarity raises a larger question: why are Indian litigants going to such lengths in the first place, and why are scarce court resources being used to listen to the conversations had in a marriage?

The answer lies in the fault-based nature of Indian divorce law. Unlike in England, divorce in India requires proving grounds such as cruelty, adultery, or desertion. And when one’s ability to leave a marriage depends on proving the other party’s misconduct, every recorded word - angry, dismissive, or threatening - becomes potential ammunition.

As a result, parties often find themselves not only litigating the existence of cruelty but also recording their way out of a marriage.

The English Approach

England approaches the matter from a very different starting point. In May 2025, the Family Justice Council published long-awaited guidance on covert recordings in family proceedings. While acknowledging that such recordings may be admissible as evidence, the guidance takes pains to discourage its use as a matter of course. This guidance sets out a framework for practitioners and those involved in family proceedings to consider rather than a set of concrete rules. 

At its core, the English position is rooted in proportionality, fairness, and child welfare and it is explicitly not an encouragement to engage in covert surveillance.

The FJC’s Message

1. Proceed with caution or not at all
   Covert recordings are not automatically excluded, but their use may raise conduct concerns, especially where the act of recording suggests intimidation, manipulation, or breach of trust. Courts are reminded that such conduct may result in costs orders, and in extreme cases, criminal or civil liability.
2. Particular risks with children and professionals
   Secretly recording children is especially ill-advised. The evidential value is often minimal, while the potential harm to the child’s welfare and trust is significant. Similarly, covertly recording professionals (e.g. social workers or CAFCASS officers) may undermine expert assessments and disrupt proceedings.
3. Admissibility depends on context and conduct
   Courts are advised to examine:
   • The lawfulness of the recording (the covert recording of court proceedings, for example, is always unlawful);
   • Its relevance and probative value;
   • Whether it has been edited or manipulated;
   • The motivation behind the recording; and
   • Its impact on fairness and welfare.

As Peter Jackson J, in M v F (Covert Recording of Children) [2016] EWFC 29 observed, “such activities normally say more about the recorder than the recorded.”

Proof, but at what price? 

When viewed side-by-side, the divergence between the two jurisdictions is striking. Both systems are prepared, in principle, to admit covert recordings. But in India, the structure of the divorce regime generates an arguable demand for such evidence; in England, the absence of fault as a gateway to divorce - and the limited relevance of conduct in related proceedings - removes much of that incentive.

In England, the move to no-fault divorce, the irrelevance of conduct in most financial disputes, and the focus on child welfare means that such recordings are rarely decisive and often counterproductive. The FJC’s guidance reflects this: its primary concern is not the admissibility of the evidence, but the wider consequences of obtaining it. The system is designed to de-escalate, to minimise the adversarial, and to keep the focus on welfare over wrongdoing. As a result, while covert recordings may technically be admissible, in particular cases, they are rarely welcomed - and often discouraged.

In India, covert recordings remain a practical, if ethically uncomfortable, tool for litigants seeking to meet the evidentiary burden imposed by fault-based divorce laws. Until the legal framework evolves, such recordings may remain a feature and a flashpoint of matrimonial litigation.

For practitioners in either jurisdiction, the key takeaway is not simply whether the evidence is legally permissible. It is whether it is strategically wise, morally defensible, and in the client’s best long-term interest.

After all, the court may hear what was recorded but it will also pay close attention to who pressed “record,” and why.