[Adultery v. Right to Privacy] Seeking hotel stay and call record details to prove the charge of adultery will not violate right to privacy: Delhi High Court

Delhi High Court: In a case wherein the petitioner challenged the orders passed by the Family Court wherein the application preferred by the respondent for summoning the CCTV footage, booking details and reservation records of the said room in Hotel Fairmont, a Single Judge Bench of Rekha Palli, J.* observed that the respondent was the estranged wife of the petitioner who had no direct evidence of her husband indulging in acts of adultery and by resort to Section 14 of the Family Courts Act, 1984 (‘FCA’), she was, only trying to seek production of evidence which she reasonably believed would prove her charge of adultery which by its very nature could be inferred only from circumstances. The Court further opined that the Family Court by way of the impugned orders had sought records which pertained only to the respondent’s husband and not to his friend or her daughter. Therefore, there was no question about their right of privacy being violated in any manner.

Background

In the present case, the parties being husband-petitioner and wife-respondent, resided in the same house, but disputes used to arise between them and therefore, the respondent served a legal notice upon the petitioner wherein she besides alleging cruelty and domestic violence on the part of the petitioner, stated that he had indulged in adulterous acts with a woman outside their marriage. The respondent thereafter filed a petition seeking divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955 (‘HMA’) on the ground of adultery and cruelty on the part of the petitioner. The respondent submitted that the petitioner was staying with a lady along with her daughter in the same room at Hotel Fairmont, Jaipur. The respondent approached Hotel Fairmont with a request to provide her with the booking details of room where the respondent claimed that the petitioner was residing with the lady whose particulars were not known to her, along with the identity proofs (‘ID proofs’) of persons who stayed therein. The respondent’s request was denied; therefore, she preferred an application before the Family Court seeking preservation of the CCTV footage of the room by the hotel authority.

The Family Court, while allowing the said application, granted liberty to the respondent to move a fresh application for summoning the CCTV footage, booking details and reservation records of the said room in Hotel Fairmont. The petitioner submitted that the application preferred by the respondent, if allowed, would amount to infringement of the right to privacy not only of the petitioner but also of the lady, who was happily married to a third party and of her minor daughter who were both not connected to the disputes between the parties. The Family Court passed the impugned order directing Hotel Fairmont to preserve the documents relating to the reservation details, payment details and ID proof of room. The Family Court opined that the documents being sought by the respondent were necessary to prove the charges of adultery and cruelty levelled against the petitioner by her. Being aggrieved, the petitioner had approached this Court by way of the present petition.

Analysis, Law, and Decision

The issues for consideration before this Court were:

a. Whether the respondent had been able to make out a prima facie case and the information sought by her could be said to be relevant for determining the lis between the parties?

The Court observed that the respondent was the estranged wife of the petitioner who had no direct evidence of her husband indulging in acts of adultery and by resort to Section 14 of the FCA, she was, only trying to seek production of evidence which she reasonably believed would prove her charge of adultery which by its very nature could be inferred only from circumstances. Therefore, the Court opined that the respondent had not only been able to make out a prima facie case against the petitioner but also that the information which she was seeking would be relevant for proving the charge of adultery which she had levelled against her husband. The Court observed that the payment and reservations details along with the ID proofs of the occupants of the room would surely throw light on this crucial issue as to whether the petitioner was indeed staying with a lady other than his wife in the same room and similarly, the call details would surely be indicative of the fact as to whether the conversations of the petitioner with the lady were of such duration and frequency as was not expected between colleagues. The Court therefore opined that it could not be said that the information sought by the respondent would not be relevant.

The Court opined that “Section 14 of the FCA was carved in a slightly different manner giving very wide powers to the Family Court in matters of receiving evidence. It was, therefore, open for the Family Court to receive any evidence which might assist the Court to effectively deal with the dispute irrespective of whether the said evidence was relevant or admissible under the Indian Evidence Act, 1872”. The Court further opined that once the Family Court was satisfied that the respondent had been able to make out a prima facie case, it was justified in directing the production of the records sought by her which would assist the Court in coming to a correct conclusion as to whether the petitioner, as alleged by the respondent, had indulged in adultery.

b. Whether the information sought by the respondent would amount to infringement of the right to privacy of the petitioner or of his lady friend or that of the minor child?

The Court relied on Linda Constance Edwards v. William Edwards, 2000 SCC OnLine Del 933, wherein it was held that “rarely would there be direct evidence of adultery”. Therefore, the Court opined that “when in a case like the present, when a wife seeks the help of the Court for procuring evidence which would go a long way to prove adultery on the part of her husband, the Court must step in; this would be in consonance with Section 14 of the Family Courts Act which gives a leeway to the Court to consider evidence which might be not admissible or relevant under the Indian Evidence Act”.

The Court relied on K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1 (‘K.S. Puttuswamy’), wherein it was held that “the right to privacy, though a constitutionally protected right, was not an absolute right”. This right of privacy under Article 21 of the Constitution, had to be necessarily subject to reasonable restrictions especially when the restrictions were in public interest. The Court opined that HMA specifically recognized adultery as a ground for divorce and therefore, it would not at all be in public interest that the Court should on the ground of right to privacy, come to the aid of a married man who, during the subsistence of his marriage, was alleged to have indulged in sexual relationships outside his marriage. The Court also relied on Joseph Shine v. Union of India, (2019) 3 SCC 39 (‘Joseph Shine’), wherein it was emphasized that the freedom to have a consensual sexual relationship outside marriage by a married person did not warrant protection under Article 21 of the Constitution.

The Court opined that it was inclined to accept the respondent’s plea as the petitioner’s claim was based solely on the right to privacy which, as held in K.S. Puttuswamy and Joseph Shine was not an absolute right; on the other hand, the respondent’s prayer was based not only on morality but also on specific rights granted under HMA and FCA. Thus, the Court opined that the respondent’s right must prevail and therefore, there was no reason to interfere with the impugned orders of the Family Court.

The Court also opined that the Family Court by way of the impugned orders had sought records which pertained only to the respondent’s husband and not to his friend or her daughter. Therefore, there was no question about their right of privacy being violated in any manner. Thus, the Court dismissed the petition.

[Sachin Arora v. Manju Arora, 2023 SCC OnLine Del 2692, decided on 10-5-2023]

Advocates who appeared in this case:

For the Petitioner: Preeti Singh, Sunklan Porwal, Saumya Dwivedi, Ks. Kmkum Mandhanya, Rishabh Munjal, Advocates

For the Respondent: Prabhjit Jauhar, Rosemary Raju, Ajune v x //.e Singh, Ranveer Talwar, Advocates

*Judgment authored by: Justice Rekha Palli