Can Spouse's Right To Privacy Be Breached To Prove Adultery Allegations? Supreme Court To Consider

The Supreme Court has issued notice in a special leave petition filed by a husband challenging a Court direction which allowed the plea of his wife - who is alleging adultery by him - to obtain and preserve his call detail records and details relating to hotel stay.

The petitioner raised the issue whether the fundamental right to privacy of a spouse can be breached in case of an allegation of adultery in divorce proceedings.

The bench comprising Justice Krishna Murari and Justice Sanjay Kumar was hearing an SLP against the impugned judgment of the Delhi High Court which had upheld the directions issued by a Family Court to a hotel in Jaipur to submit the details of booking, IDs of occupants of a room on a particular date and also to the mobile service provider to submit the call detail records.

The wife is alleging that the petitioner is having an adulterous relationship with his friend, who he met at a hotel in Jaipur.

The petitioner contended that the decision of the family court infringes his fundamental right to privacy. He further submitted that the High Court had set a "regressive and draconian" precedent turning the clock behind and taking the society back to the era prior to Justice KS Puttaswamy (Retd.) v. Union of India, (2017).

The petitioner contended that the matter concerned is civil in nature and the allegations are that of private wrong and the impugned order is endangering not only the reputation and other incidental relationships of the Petitioner but also allowing questions to be raised over the character and chastity of his friend.  

'Adultery is a private wrong, the court cannot infringe on the fundamental right to privacy'

The petitioner contended that undue weightage had been given to a part of the observation made in Joseph Shine v. Union of India, (2019) 3 SCC 39, to claim that the freedom to have a consensual sexual relationship outside marriage by a married person does not warrant protection under Article 21.

The petitioner referred to the observation made by Justice Indu Malhotra where she reiterated Justice KS Puttaswamy's case and observed that “Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law? The State must follow the minimalist approach in the criminalization of offenses, keeping in view the respect for the autonomy of the individual to make his/her personal choices.”

The petitioner argued that despite holding that adultery is not a public wrong where the community as a whole is a victim, rather it is merely a wrong qua the spouse and the family, the High Court, in the impugned judgment, upheld the decision of the Family Court to conduct a roving and fishing inquiry into the life of the petitione

Matter to be listed on 07.08.2023

Case title- Sachin Arora v. Manju Arora, Petition(s) for Special Leave to Appeal (C) No(s). 11643/2023

The petitioner was represented by Ms. Preeti Singh, AOR along with advocates Mr. Sunklan Porwal, Adv. Ms. Saumya Dwivedi, Adv. Ms. Kumkum Mandhanya, Adv. Ms. Simranjeet Kaur, Adv. Mr. Rishabh Munjal, Adv.

The respondents were represented by Mr. S. S. Jauhar, AOR along with advocates Mr. Prabhjit Jauhar, Adv. Mr. Bhanu Thakur, Adv. Ms. Gauri Rajput, Adv.

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