Freedom To Have A Consensual Sexual Relationship Outside Marriage By A Married Person Does Not Warrant Protection Under Article 21 Of The Constitution Of India

Case title:

ABC v. XYZ

Date of Order:

10.05.2023

Bench:

Hon'ble Ms. Justice Rekha Palli

SUBJECT

Hindu law is the law governing the social obligations and relations of Hindus. Marriage is considered a sacramental union between two souls under Hindu law. The dissolution of marriage was a concept unknown during ancient times. However, this view has changed owing to our society's changing circumstances. The Hindu Marriage Act, 1955 was enacted to frame and regulate laws concerning marriage between Hindus. Section 13 of the Act provides for the dissolution of marriage. Section 2 of the HMA states who can be a Hindu. As per the section a Hindu can be:-

• Hindu by religion (followers of Hinduism, converts and re-converts).
• Hindu by birth.
• Any person who is a Buddhist, a Jain, or a Sikh.
• Anyone who is not a Muslim, Christian, Parsi, or Jew.

IMPORTANT PROVISIONS

1. The Constitution of India

• Article 226
• Article 21

1. The Hindu Marriage Act, 1955

• Section 13

OVERVIEW

• The parties to this case got married on 04.12.1998 under the Hindu Marriage Act, 1955.
• Later on in the marriage, disputes started to rise between the parties after which, the wife (respondent) issued a legal notice against the husband (petitioner), alleging cruelty and adultery.
• The respondent urged that the petitioner was residing with a lady and her daughter in the same room at Hotel Fairmont, Jaipur. This was between 29.04.2022 and 01.05.2022.
• The respondent approached the hotel and requested booking details for room 219, where the petitioner and the lady had stayed together. 
• Upon the denial of the request by the hotel authorities, the respondent applied to the family court to preserve the CCTV footage of room 219 of Hotel Fairmont.
• The family court allowed the application, thereby granting the respondent the right to access booking details and CCTV footage of the room.
• The respondent filed another application before the family court under Order XVI, CPC read with Section 14 of the Family Courts Act. This was to preserve the petitioner's call recordings. She also sought directions regarding the production of ID proof copies submitted to the hotel by the people who stayed in Room 219 from 29.04.2022 to 01.05.2022, along with payment and reservation details.
• The petitioner rejected the allegations of adultery and claimed that he had only met a friend who stayed at Hotel Fairmont at the same time.
• The photographs submitted by the respondent were said to be baseless as they merely showed the respondent and the lady in a public area of the hotel and hence don’t amount to adultery.
• The petitioner also stated that allowing the application would seriously violate his right to privacy.
• The family court allowed the application and held that the production of the documents required by the respondent is vital to prove the charge of adultery in this case.
• Aggrieved by this order, the petitioner approached the High Court of Delhi under Article 226 of the Indian Constitution.

ISSUE RAISED

• Can the husband claim the right to privacy against the wife seeking the production of records before the court to prove her charge of adultery against the husband in her petition seeking a divorce?

ARGUMENTS ADVANCED BY THE PETITIONER

• Ms. Preeti Singh appeared on behalf of the petitioner in the present case.
• It was submitted by the counsel that no prima facie adultery case was filed against the petitioner and that the family court failed to appreciate this fact.
• It was further submitted that the decision of the court was found on bald allegations made without any material to establish the same. The counsel contended that the petitioner sitting with another lady in a public area does not amount to adultery, and hence the allegations of the respondent are meritless
• The counsel relied on the case of Sharda v. Dharampal, [(2003) 4 SCC 3450] and held that the family court could not have allowed the application for the production of documents without an established prima facie case by the respondent.
• Ms. Singh next submitted that directions issued by the learned Family Court for preserving the CDRs would serve no useful purpose as the same cannot establish that the petitioner had indulged in acts of adultery and cruelty.
• The counsel cited Rayala M. Bhuvaneswari vs. Nagaphanender Rayala [(2007) SCC Online AP 892] and stated that an individual’s telephone calls are an essential aspect of his private life and therefore, the right to privacy would include telephone conversations.

 ARGUMENTS ADVANCED BY THE RESPONDENT

• Mr. Prabhjit Jauhar appeared on behalf of the respondents in the present case.
• Counsel contended that the respondent approached the family court based on conclusive proof that her husband was staying in another hotel with a lady.
• The counsel submitted that the allegations were not mere speculation by the respondent as the petitioner had deliberately booked the hotel room to indulge in the adulterous activity.
• It was further submitted that the call detail records would also be relevant to prove the proximity of the relationship between the petitioner and his female friend. This would help determine the degree of closeness between them.
• The counsel relied on the case Mr.X v. Hospital Z [(1998) 8 SCC 296] and stated that when there is a clash between the right to privacy and a right that advances public morality or public interests, the latter always prevails. Hence the summoning of reservation details and call records would not infringe on the right to privacy under Article 21.
• It was finally submitted by counsel that the respondent should be given a fair chance to seek the documents necessary for her to establish the charge of adultery against the petitioner.

JUDGEMENT ANALYSIS

• The Delhi High Court dismissed the petition.
• The quorum consisting of Hon'ble Ms. Justice Rekha Palli held that the court cannot act in favor of a married man alleged of adultery based on the right to privacy under Article 21.
• The court ruled that even though the photographs of the petitioner and his lady friend sitting close do not establish adultery, they do however point to a prima facie case.
• It was noted that the petitioner took contradictory stands regarding his lady friend's presence in the hotel. In his written statement, he stated that he was on an official trip to Jaipur, along with his female colleague. However, in his response to the application, he stated that he met the lady friend by chance in the hotel as she was also staying there at the same time.
• The court cited K.S. Puttuswamy vs. Union of India [(2017) 10 SCC 1], where it was held that the right to privacy is not absolute even though it is protected by the constitution. This right is subject to various reasonable restrictions.
• Justice Rekha Palli also cited the case, Joseph Shine vs. Union of India [(2019) 3 SCC 39], where the bench ruled that the freedom of any person to indulge in consensual sexual intercourse with another person outside of marriage does not guarantee protection under Article 21 of the constitution.

CONCLUSION

Article 21 of the Indian Constitution guarantees privacy. It gives individuals the ability to make decisions about their personal lives and feel secure in their decisions. Though the right to privacy is a basic human right, it is not absolute. The high court dismissed the plea in this case as the production of private documents concerning the petitioner was deemed necessary for the respondent to prove her husband's adultery charges, and it was the only way to establish a prima facie divorce case against him.

Click here to download the original copy of the judgement