The Supreme Court has issued notice in a special leave petition (SLP) filed by a husband challenging a court direction that allowed his wife, who accused him of adultery, to obtain and preserve his call detail records and hotel stay details.
The petitioner raised the question of whether a spouse’s fundamental right to privacy can be breached in cases involving allegations of adultery in divorce proceedings.
A bench comprising Justice Krishna Murari and Justice Sanjay Kumar heard the SLP against the Delhi High Court’s impugned judgment, which upheld the directions issued by a Family Court to a hotel in Jaipur to provide booking details, occupants’ identification, and call detail records from the mobile service provider.
The wife alleges that the petitioner engaged in an adulterous relationship with a friend whom he met at a hotel in Jaipur.
The petitioner argued that the family court’s decision violates his fundamental right to privacy. He further contended that the High Court set a “regressive and draconian” precedent, regressing society to a time prior to the landmark case of Justice KS Puttaswamy (Retd.) v. Union of India, (2017).
The petitioner asserted that the matter is civil in nature, involving allegations of a private wrong, and that the impugned order endangers not only his reputation and other incidental relationships but also allows questions to be raised about the character and chastity of his friend.
The petitioner argued that undue weightage was given to a part of the observation in Joseph Shine v. Union of India, (2019) 3 SCC 39, which claimed that the freedom to engage in consensual sexual relationships outside marriage by a married person does not warrant protection under Article 21.
The petitioner referred to Justice Indu Malhotra’s observation in the same case, stating 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 recognizing that adultery is not a public wrong affecting the community as a whole, but rather a wrong only with respect to the spouse and the family, the High Court upheld the Family Court’s decision to conduct an intrusive inquiry into the petitioner’s life.
The matter is scheduled to be listed on August 7, 2023.
