Can Husband’s Right To Privacy Prevail Over Wife’s Right To Seek Evidence For Proving Her Allegations Of Adultery? Delhi High Court Answers

Can the husband's right to privacy be permitted to prevail over his wife's right to seek redressal under the provisions of the Hindu Marriage Act?

The Delhi High Court today ruled that since Hindu Marriage Act specifically recognises adultery as a ground for divorce, 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.

Justice Rekha Palli noted that Supreme Court in KS Puttuswamy v. Union of India has held that the right to privacy, though a constitutionally protected right, is not an absolute right.

What was the case?

In connection with divorce proceedings pending before the trial court, the husband moved the High Court challenging two orders passed by the family court which had allowed the wife’s applications for seeking preservation of CCTV footage of a hotel where he was allegedly indulging in adultery, and summoning the hotel room’s records.

The couple married in 1998. However, last year, the wife filed a divorce petition before the family court. She sought divorce on the ground of adultery and cruelty against the husband and alleged that he also has an illegitimate child from the adulterous relationship.

It was her case that unless the information as directed by family court is brought on record, she may not be able to prove the charge against her husband. On the other hand, the husband’s counsel opposed the allegations of adultery and cruelty levelled against him and contended that he merely met one of his friends, who along with her daughter, was at the same time, coincidently staying at the same hotel.

The husband submitted that the family court could not have directed a fishing and roving enquiry so as to collect evidence for the wife. He also took a plea that the divulgence of information sought by the wife would be violative of his right to privacy and also that of the lady and her minor child.

What did the court say?

The court dismissed the husband’s petition and said that a wife can seek production of evidence or documents to prove the charge of adultery levelled by her against the husband in a divorce petition before family court and same will be in consonance with section 14 of Family Courts Act.

Justice Palli also observed that the wife was able to make out a prima facie case against the husband and that the information which she was seeking would be relevant for proving the charge of adultery.

The impugned orders were upheld as they related only to the production of certain records and did not deal with the question as to whether the record would be sufficient to prove adultery against the husband.

What did the court say on husband’s right to privacy vis-à-vis wife’s right to seek evidence?

Justice Palli held that the wife’s right to seek evidence before the family court must prevail over the husband’s right to privacy and said that the court finds no reason to interfere with the impugned orders.

The court observed that it is not as if the wife was seeking information about any stranger staying in the hotel. It said that her plea was only for records pertaining to her legally wedded husband, who she was alleging to be indulged in adultery with a lady in a hotel room.

The court said that while the husband might be right in contending that even a legally wedded wife may not have a fundamental right to know every minor detail about her husband or to seek information as to with whom he talks, it observed that it cannot be ignored that the legally wedded wife has a reasonable apprehension that her husband was indulging in adultery for which she had filed a divorce petition under Section 13(1)(i) of the Hindu Marriage Act.

“I am therefore of the considered view 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 may be not admissible or relevant under the Indian Evidence Act,” the court said.

Noting that the husband, who was relying on his right to privacy, continued to be in a “subsisting marital relationship” with the wife, the court said that the right to privacy is not an absolute right and the court has to necessarily strike a balance between the conflicting rights of husband and wife.

"The petitioner’s claim is based solely on the right to privacy which, as held in K.S. Puttuswamy (supra) and Joseph Shine (supra) is not an absolute right; on the other hand, the respondent’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," said the court.

What did the court say on right to privacy of third person?

Justice Palli said that there was no question of violation of right to privacy of the other lady, with whom the husband was allegedly living in adultery, and her minor child as the family court had only sought records pertaining to the husband.

"The learned 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 court said.

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