Seeking CDR, hotel stay details to prove adultery does not violate privacy: Delhi HC

Justice Rekha Palli, who was dealing with the husband’s plea, dismissed it saying that 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 him, the court must step in and that the section concerned of the FCA gives a leeway to the court to consider evidence which may be not admissible or relevant under the Indian Evidence Act.

The husband’s plea challenged two orders passed by the family court allowing the wife’s applications for seeking preservation of CCTV footage of a hotel where he was allegedly indulging in adultery with a woman, and summoning of the hotel’s room records.

The wife filed a divorce petition with the family court, stating that her husband had an illicit relationship with a different woman and that the two had a daughter.

She had further contended that the hotel records and call detail records were required to support her claim that they had both stayed in a hotel.

The court had approved the wife’s application, and directions were issued to retain the hotel and Call Detail Record (CDR) and to present it to the court in a sealed cover.

During the last hearing, before the high court, the man’s counsel had argued that keeping and requesting the hotel information and CDR as ordered by the family court constitutes a violation of his right to privacy.

“It was not the job of the court to collect evidence and conduct roving inquiries in private matters. If such summoning order becomes a routine, then it would create havoc in the society,” counsel had said.

However, it was the wife’s 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.

Opposing the allegations of adultery and cruelty levelled against him, the man had 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.

Counsel further contended that the family court could not have directed a fishing and roving enquiry so as to collect evidence for the wife.

Regarding the husband’s contention over divulgence of information by the wife and being violative of his, the woman and her minor child’s right to privacy, Justice Palli said that the wife not only placed various photographs on record showing the husband in “close proximity” with the lady friend but also provided details of the room and dates on which according to her, the legally wedded husband was staying with the woman.

Denying relief to the man, the court said: “The respondent is the estranged wife of the petitioner who obviously does not have any direct evidence of her husband indulging in acts of adultery. By resort to Section 14 of the Family Courts Act, she is only trying to seek production of evidence which she reasonably believes will prove her charge of adultery which by its very nature can be inferred only from circumstances.”

Furthermore, it 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.

In order to strike a balance between the rights of the wife and husband, the court said: “I am inclined to accept the respondent’s plea. 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.”

The impugned orders passed by the Family Court are only related to the production of records and have nothing to do with whether the record would in itself be sufficient to prove the charge of adultery against the husband.

The court noted that the stage to determine the sufficiency of evidence has not arrived yet.

“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,” Justice Palli said.