The Supreme Court has agreed to examine a plea on whether seeking details of hotel stays and call records to prove allegations of adultery are violative of the fundamental right to privacy under Article 21 of the Constitution.
A bench of justices Krishna Murari and Sanjay Kumar issued notice to a woman after her husband challenged an order of the Delhi high court on the issue.
The high court on May 10 had said the law recognises adultery as a ground for divorce and it will not be in public interest for the court to come to the aid of a married man, who indulged in alleged sexual relationships outside the wedlock, on the premise of right to privacy.
It had referred to the Supreme Court's decision holding that though the right to privacy is a constitutionally protected right, it is not an absolute right and it has to be necessarily subject to reasonable restrictions, especially when the restrictions are in public interest.
The high court made the observations while dismissing a man's plea challenging a family court's December 14 last year order to preserve the documents related to reservation, payment details and ID proofs of a particular room in a hotel for the period between April 29 and May 1 last year and send it to the court in a sealed cover.
Justice Rekha Palli of the high court had said when a wife seeks the court's help 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 may be not admissible or relevant under the Indian Evidence Act, the high court had said.
Section 14 of the Family Courts Act states that the family court may receive as evidence any report, statement, documents, information or any other matter which it thinks may assist the court to deal with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act.
The court was deciding the question as to whether the husband, represented through advocate Preeti Singh, can claim right to privacy vis-a-vis his wife's prayer to seek assistance of the court for production of records to substantiate her charge of adultery levelled against him in her petition for divorce.
"There can therefore be no gainsaying that direct evidence of adultery can rarely be available. I am therefore of the considered opinion that the respondent (wife) has not only been able to make out a prima facie case against the petitioner (husband) but also that the information which she is seeking would definitely be relevant for proving the charge of adultery which she has levelled against her husband, the judge had said.
Justice Palli had said the payment and reservation details along with the ID proof of the occupants of the room will surely throw light on this crucial issue as to whether the man was indeed staying with a lady other than his wife in the same room.
Similarly, the call details will surely be indicative of the fact as to whether the conversations of the petitioner with the lady were of such duration and frequency as is not expected between colleagues. The respondent is seeking to prove the charge of adultery against the petitioner and therefore, it cannot be said that this information would not be relevant, the high court had said.
It had said the man, who is harping on his right to privacy, as on date, continues to be in a subsisting marital relationship with his wife, having a grown-up daughter out of wedlock.
The Hindu Marriage Act specifically recognises 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, is alleged to have indulged in sexual relationships outside his marriage, the high court had said.
Regarding the issue as to whose right should prevail in the facts of the present case, the judge had said she was inclined to accept the plea of the wife, who was represented through Prabhjit Jauhar.
The high court said the man's claim is based solely on the right to privacy which is not an absolute right, and on the other hand, the woman's prayer is based not only on morality but also on specific rights granted under the Hindu Marriage Act and the Family Courts Act.
"I, therefore, have no hesitation in holding that the respondent's right must prevail and therefore, find no reason to interfere with the impugned orders. The family court by way of the impugned orders has sought records which pertain only to the respondent's husband and not to his friend or her daughter. There is, therefore, no question of their right of privacy being violated in any manner," the judge had said.
The high court had said the family court's order only pertained to the production of records and did not in any manner deal with the question as to whether the record would in itself be sufficient to prove the charge of adultery against the man.
The family court was dealing with the divorce petition of the wife who alleged that her husband was involved in an illegitimate relationship with another woman and has a daughter from that relationship.
The wife also alleged before the family court that the man and the other woman had stayed in a hotel. She argued that the hotel and call detail records were necessary to establish her contention.
