Article By: Ms. Shivee Panndey Sinha, Managing Partner, Sinha & Partners, Advocates & Solicitor and Ms. Tanya Gangwar, 2nd Year Student at Gujrat National Law University, Gandhinagar.
The Right to Privacy was upheld in Puttuswamy v Union of India[1] as a fundamental right. However, though a constitutionally protected right, there exist reasonable restrictions and it is not an absolute right. The sanctity of marriage in India is absolute. Husbands and wives are lifelong companions on the basis of a spirit of mutual respect, love, and common progress. The relationship is built on trust and monogamy. A husband engaging in an extramarital affair with someone else outside of his marriage taints the relationship and becomes one of the grounds for divorce under the Hindu Marriage Act, 1955.
The divorce proceedings take a bitter turn when the wife tries to produce evidence which apparently invades the privacy of the husband. One such case was before the High Court of Delhi where the wife sought preservation of CCTV footage of a hotel where she alleged that her husband was engaging in adultery with another woman and sought to summon the hotel room’s records as evidence.
The couple entered into marriage in 1998 and welcomed a daughter in 2000. In 2022, the wife filed for divorce in the family court, citing cruelty and adultery as the grounds. She further alleged that her husband had fathered an illegitimate child as a result of the adulterous relationship. The wife emphasized that obtaining this information was crucial for her to substantiate the serious charges of adultery against her husband. On the other hand, the husband argued that his wife had failed to establish a preliminary case against him regarding adultery, and the documents requested by her were irrelevant in proving her “unfounded allegations of cruelty and adultery“.
Additionally, the husband contended that disclosing the requested information would violate not only his right to privacy but also the rights of his friend and her minor daughter, who are not involved in the case. He argued that the family court did not have the authority to conduct a broad and unfocused investigation to gather evidence for the wife. The husband emphasized that the court should not engage in a speculative search for evidence, but rather rely on relevant and specific information pertaining to the case at hand.
The High Court cited a previous decision from 2000, noting that direct evidence of adultery is rarely available. In light of this, the court observed that when a wife seeks the court’s assistance in obtaining evidence that would substantiate her claims of adultery against her husband, it is the court’s responsibility to intervene. The court justified this approach by referencing Section 14 of the Family Courts Act, which allows the court to consider evidence that may not be admissible or relevant under the Indian Evidence Act. In doing so, the court aims to facilitate the fair consideration of evidence and support the wife in her pursuit of establishing adultery allegations against her husband.
The proof required in a civil case of Divorce or Adultery is not as strong as in a criminal case of Adultery, hence it does not require proof beyond reasonable doubt. But to prove adultery for divorce requires fulfilment of circumstantial evidence such as the presence of two people in a hotel room, who are not so related to spend time in close confined walls, their time of checking in and out of the hotel in addition to the time duration both were present in the hotel room. Thus, residing in the same room or similar to that other than the spouse raises high suspense of adultery.
NO THREAT TO THE RIGHT TO PRIVACY
Under Article 21 of the Indian Constitution, individuals have the Right to privacy, which guarantees the right to live with dignity and integrity without interference or threats to their security. The Right to life includes the aspect of living with dignity and respect, and it prohibits the disclosure or exposure of information that could jeopardize an individual’s right to life or privacy. However, in cases involving allegations of adultery, corroborative circumstantial evidence is typically required to hold someone accountable for the charge of adultery. This means that while privacy is protected, the need for supporting evidence is recognized in order to establish liability in cases of adultery. The court acknowledged the husband’s argument that a legally wedded wife does not necessarily have a fundamental right to know every minor detail about her husband or to seek information about his interactions. However, the court also recognized that the legally wedded wife has a reasonable apprehension regarding her husband’s alleged adultery, which led her to file a divorce petition under Section 13(1) (i) of the Hindu Marriage Act. The court emphasized that this reasonable apprehension cannot be ignored, implying that it is relevant for the court to consider the wife’s concerns in the divorce proceedings.
[1] (2017) 10 SCC 1 Court