Evidence in Divorce|Andhra Pradesh High Court|Kancheti Nageswara Rao V. Kancheti Hima Bindu (2025)|Can Your Spouse Use Recorded Calls & WhatsApp Chats in Divorce Proceedings?
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- Dec 10
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AP High Court – Civil Revision Petition (CRP) No: 2834/2024 - Date of Order : 09.10.2025
Justice V Sujatha
Kancheti Nageswara Rao (Petitioner) Vs. Kancheti Hima Bindu (Respondent)
Appeal: Petition under Article 227 of the Constitution of India before the High Court against Order of dismissing I.A.No.545/2024 and 596/2024 in H.M.O.P. No. 256/2021 on the Addl. Civil Judge (Senior Division) Narasaraopet, Andhra Pradesh, dated 21-10-2024.
Petition under Section 151 CPC praying the High Court to stay all further proceeding in H.M.O.P. No. 256/2021 on the file of the Court of the Addl. Civil Judge (Senior Division) : Narasaraopet, Andhra Pradesh.
Reason: The wife has filed the aforesaid original petition for dissolution of marriage against the husband. After recording the evidence of the husband, when the matter was posted for further evidence, the husband has filed I.A.No.545 of 2024, under Order VIII Rule 1 (3-A) and Section 151 of C.P.C., to condone the delay in filing the additional documents [hospital prescriptions of the husband dated 07.10.2019 and 17.09.2019; whatsapp copy dated 29.12.2020; C.D., containing CC footage dated 28.11.2019, phone call conversations between Bachupalli C.I. and wife dated 02.12.2019, phone call conversation between the parties about health issues and I.A.No.596 of 2024 to receive the electronic evidence to mark as exhibits. The Trial Court, having observed that the husband has infringed the rights of privacy of his wife, has dismissed applications vide a common order dated 21.10.2024. Aggrieved by the same, the husband has filed the present revision petitions.
Contentions of the husband before the Hon’ble High Court:
The husband contended that he has produced whatsapp and telephonic conversation of the husband with the wife, which would establish the case of the husband. In such a case, the Trial Court ought to have received the proposed documents by marking them as exhibits. He submitted that the Trial Court has denied to receive the proposed documents and mark the same as exhibits by observing that the husband has infringed the rights of privacy of the wife by recording the telephonic conversation and by disclosing the whatsapp chats. While relying upon a judgment of the Hon’ble Supreme Court of India in Vibhor Garg Vs. Neha, the husband contended that in suits between married persons, the right to privacy is not a relevant consideration since it is not the rationale under which spousal communications were privileged under Section 122 of the Indian Evidence Act, 1872 (hereinafter referred to as the “Act”).
He further contended that under Section 122 of the Act, the communication between married persons can be disclosed in matrimonial proceedings like divorce. The Right to privacy cannot be a defence to shun relevant evidence in the form of audio recordings or some other technologically collected private data. As such, the husband requested this Court to set-aside the common order passed by the Trial Court.
Contentions of the wife before the Hon’ble High Court:
The wife has contended that the unilateral and illegal recording of a private conversation by the husband without informing the wife cannot be said to be a “communication” at all and any such purported evidence of any such alleged conversations is not admissible in law. She further contended that the conditions set-forth under Section 65B of the Act were not complied with by the husband while filing the applications before the Trial Court. As there is no infirmity in the common order passed by the Trial Court, the wife requested this Court to dismiss the revision petitions.
Observations of the Hon’ble High Court:
Admittedly, the husband has filed I.A.Nos.545 and 596 of 2024 in H.M.O.P.No.256 of 2021 before the Court below, to receive aforementioned documents by condoning the delay in filing them out of which, a whatsapp copy and a compact disc containing cc footage and phone call conversations of the husband and the wife are also a part, which as per the wife shall be considered as privileged communication and shall not be disclosed. It is the contention of the husband that the protection under Section 122 of the Act does not apply, because the right to privacy is not a valid reason for granting spousal privilege in such situations. Hence, for proper adjudication, this Court deems it relevant to extract Section 122 of the Act, which reads as under:
“122. Communications during marriage: - No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”
It can be understood from the aforesaid provision that neither the husband nor his wife shall be forced to reveal any communication that took place between them during marriage privately, nor are they allowed to disclose such communication without consent. However, when both the spouses are before a Court in respect of a matrimonial dispute, the bar on such disclosure of communication would be lifted.
In the case on hand, the husband would be barred from disclosing any form of communication between him and the wife as it is a privileged communication under Section 122 of the Act, however, in view of the aforementioned exception, the bar on the disclosure of such communication between the parties would be lifted as the said communication is proposed to be disclosed in a proceeding between a wife and husband, i.e. in the present case the petition filed under Section 12 (i) (a) of Hindu Marriage Act by the wife. Undoubtedly, the husband has recorded his conversation with the wife without her consent and knowledge, but in view of the exception laid down in Section 122 of the Act, the said conversation can be disclosed by the husband in a petition filed by the wife under Section 12 (i) (a) of Hindu Marriage Act. As such, the principle of law laid down by the Hon’ble Supreme Court in the judgment relied upon by the husband in Vibhor Garg Vs. Neha (1st supra) is not in dispute, but, the question that arises now for consideration is whether the husband has adhered to the conditions laid down in Section 65B of the Act while producing the electronic evidence.
It can be seen that the husband proposes to mark whatsapp copy and a compact disk containing CC footage and phone call conversations of him with the wife, as exhibits, which admittedly falls under electronic device. Section 65A of the Act speaks of “contents” of electronic records being proved in accordance with the provisions of Section 65B of the Act. Section 65B speaks of “admissibility” of electronic records which deals with “existence” and “contents” of electronic records being proved once admissible into evidence. For better appreciation of the case, Sections 65A and 65B of the Act, are extracted hereunder:
“65A. Special provisions as to evidence relating to electronic record: - The contents of electronic records may be proved in accordance with the provisions of section 65B.
65B. Admissibility of electronic records: -
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: ––
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, ––
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, ––
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.”
A perusal of Section 65B (1) makes it clear that any information that is contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. Section 65B (2) then refers to the conditions that must be satisfied in respect of a computer output, and states that the test for being included in conditions 65B (2(a)) to 65B (2(d)) is that the computer be regularly used to store or process information for purposes of activities regularly carried on during the period in question. The conditions mentioned in subsections 2(a) to 2(d) must be satisfied cumulatively.
Under Sub-section (4), a certificate is to be produced that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities” – whichever is appropriate. In Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and ors, the Hon’ble Supreme Court, while relooking at Section 65 B of the Act, clarified that the required certificate under Section 65B (4) is unnecessary if the original document itself is produced; which can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and / or operated by him.
In the case on hand, though the husband was obligated to produce a certificate that identifies the electronic record, containing the whatsapp copy and the telephonic conversations, is operated or owned by him, the husband has failed to do so. Even otherwise, as clarified by the Hon’ble Supreme Court of India in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and ors (2nd supra) nothing prevented the husband from producing the original device i.e. his mobile phone from which the whatsapp copy and the telephonic conversations were extracted, by stepping into the witness box and proving that the said device on which the whatsapp copy and telephonic conversations were first stored, is owned or operated by him. Moreover, the husband, though has requested the Trial Court to mark hospital prescriptions dated 07.10.2019 and 17.09.2019 as exhibits, the same are Xerox copies without any attestation from the concerned hospital authorities, which cannot be admissible.
In view of the aforesaid discussion, this Court is of the opinion that the Trial Court has rightly dismissed the applications filed by the husband and the same need not be interfered by this Court.
Accordingly, these civil revision petitions are dismissed.