Jahanvi Agarwal
The Supreme Court has recently served notice in a special leave petition (SLP) which was filed by the husband. The SLP challenged the court’s direction wherein the court allowed the plea of the wife who had accused the husband of adultery.
Not only the husband was accused of adultery but also the wife had to get and keep track of his call detail records and information on hotel stays. The issue raised by the petitioner was 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, which was hearing an SLP against the judgment of the Delhi High Court, had upheld the orders given by a Family Court to a hotel in Jaipur to submit the details of booking and IDs of guests staying in a room on a particular date.
The Court also ordered the mobile service provider to submit the call detail records. The petitioner had visited his friend in a hotel in Jaipur, according to his wife, who claims he is having an adulterous relationship with him.
The petitioner claimed that the family court’s ruling violates the husband’s fundamental right i.e., right to privacy. In addition, he was of the opinion that the High Court had created a “regressive and draconian” precedent that has shifted the advancement of society backward and brought it to the period before Justice KS Puttaswamy (Retd.) v. Union of India[1].
The petitioner also argued that the matter at hand is civil in nature and the allegations are of private wrong. The impugned order is endangering not only his reputation and other incidental relationships but also allowing concerns to be raised about the character and chastity of his friend-
‘Adultery is a private wrong, the court cannot infringe on the fundamental right to privacy’
The petitioner argued that the observation made in Joseph Shine v. Union of India[2], that a married person’s right to engage in consensual sexual relationship outside of marriage did not justify protection under Article 21 had been accorded undue weightage.
The Petitioner cited Justice Indu Malhotra’s observation in which she had reiterated Justice KS Puttaswamy’s case and pronounced 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 further contended that the High Court upheld the Family Court’s decision to conduct a roving and fishing inquiry into the petitioner’s life despite holding that adultery is not a public wrong where the community as a whole is a victim, but rather it is merely a wrong qua the spouse and the family.
The NDOH for the said matter is on 07.08.2023.
Case Name: Sachin Arora v. Manju Arora
Diary Number: 11643/2023
Bench: Justice Krishna Murari and Justice Sanjay Kumar
Click here to Access the Order.
[1] AIR 2017 SC 4161
[2] (2019) 3 SCC 39