Law Web: Whether the husband can seek production of call details of third party to prove adultery of his wife?

In the case at hand, tower details of the petitioner is permitted

to be taken and produced. It is for

the first time, the petitioner comes into the picture merely

on an allegation of illicit relationship. He is a third party to

these proceedings. Third party’s privacy cannot be

permitted to be violated on the specious plea of the

husband that he wants to prove illicit relationship between

the petitioner and the wife. It is trite that right to privacy

is implicit in the right to life and liberty guaranteed to the

citizens of the Country under Article 21 of the Constitution

of India. It is a right to be ‘let alone’. A citizen has a right

to safeguard the privacy of his own, his family, marriage

and other incidental relationships. Informational privacy

also forms an integral part of right to privacy. Therefore,

the order which directs tower details of the petitioner to be

placed before the Court in a proceeding, which he is not

even a party, undoubtedly violates informational privacy.

{Para 11}

12. The acceptance of the order by the wife, by not

challenging it as of now, would have no bearing on the

right of the petitioner to seek quashment of the said order

insofar as, it concerns him, as he is a third party. Wife,

who is anyway party to the proceedings, has instituted

divorce case, her acceptance or otherwise, cannot bind the

petitioner. There is no warrant to permit tower details of

the petitioner to be summoned or brought before the

concerned Court to aid the plea of the husband who has

not even filed any case.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION No.13165 OF 2019

MR VISHWAS SHETTY Vs MRS. PREETHI K RAO W/O. VIKRAM SAMANTH.

BEFORE

MR. JUSTICE M. NAGAPRASANNA

DATED: 30TH DAY OF NOVEMBER, 2022

The petitioner is before this Court calling in question

order dated 23-02-2019 passed by the V Additional

Principal Judge, Family Court, Bangalore on I.A.No.8 in

M.C.No.556 of 2018 whereby the Court permits

summoning of mobile tower record details of the mobile

number of the petitioner.

2. Heard Sri P.N.Manmohan, learned counsel

appearing for the petitioner, Sri N.Gowtham Raghunath,

learned counsel appearing for respondent No.1 and

Sri Arun Govindraj, learned counsel appearing for

respondent No.2.

3. Brief facts that lead the petitioner to this Court, as

borne out from the pleadings, are as follows:-

The 1st respondent and the 2nd respondent are wife

and husband. After their marriage, the relationship turning

sore, the wife files a petition before the Family Court in

M.C.No.556 of 2018 seeking annulment of marriage with

the 2nd respondent on account of cruelty. Merit of the

claim of the wife or the defence of the 2nd

respondent/husband is not the issue in the present lis. In

the said proceedings, the husband files an application

seeking call record details of the wife and her alleged

paramour which the court allows by an order dated 24-11-

2018. That is challenged before this Court by the wife in

Writ Petition No. 1338 of 2019. In the said petition it was

the contention of the wife that none of the defense that

the wife had let in qua the said interlocutory application is

considered by the concerned Court. This Court, accepting

the said contention, sets aside the order and directed the

wife to prefer an application seeking review of the order

passed allowing I.A.No.5 of 2018. It is then the application

in I.A.No.8 was filed seeking review of the order dated

24.11.2018. Answering the said application for review, the

concerned Court refused to allow the said application but

grants summoning of tower location details only from the

concerned authority i.e., the mobile operator. The tower

location of the wife and the petitioner is sought to be

produced before the concerned Court. The petitioner is the

alleged paramour of the wife of the 2nd respondent as

alleged by the husband. The said paramour is before this

Court calling in question the said order on the ground that

he is a third party to the proceedings. This Court,

entertaining the petition, granted an interim order as

prayed for, by its order dated 05-04-2019. The said

interim order of stay is in operation as on date.

4. The learned counsel appearing for the petitioner

would contend with vehemence that he is a third party to

the proceedings and his call record details or tower details

which is one and the same, is directed to be produced by

the Court through the Manager of Mobile operator. It

violates his right to privacy, as not being a party to the

proceedings his call record details cannot be sought to be

summoned by the husband.

5. The learned counsel appearing for the 2nd

respondent would submit that the 2nd respondent is

entitled to place his defence in the proceedings and,

therefore, the Court has rightly summoned call record

details of the petitioner as the wife has extra-marital

relationship with the petitioner and would place reliance

upon the judgment of the Apex Court in the case of

HIRACHAND SRINIVAS MANAGAONKAR v. SUNANDA

– (2001) 4 SCC 125 and the judgment of the Delhi High

Court in the case of DEEPTI KAPUR v. KUNAL JULKA –

2020 SCC OnLine Del 672. He would further contend

that the wife has not even challenged the said order, the

petitioner has no locus to challenge, if the wife has not

challenged it. Therefore, the order is required to be

confirmed and the details as sought for are to be

summoned. It is his emphatic submission that he needs

the wife, there is a child and he cannot let go his wife and,

therefore, he wants to prove adultery against the wife and

retain her.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

have perused the material on record.

7. There are three protagonists to the lis – one the

husband, other the wife and third the petitioner, alleged

paramour of the wife. The husband and the wife have

dispute between them and the wife alleging cruelty by the

husband has preferred a matrimonial case in M.C.No.556

of 2018. The narration in the petition seeking annulment

of marriage is to certain allegations against the husband.

The said matter is pending consideration before the

concerned Court. In the proceedings i.e., M.C.No.556 of

2018, an application is filed by the husband in I.A.No.5 of

2018 seeking call record details of the wife and that of the

petitioner on the ground that the wife and the petitioner

have an illicit relationship between them, which was the

reason for the petition being filed by the wife alleging

cruelty. It was his case in the application that there was

no cruelty meted out whatsoever to the wife. It was only a

ruse to get over the marriage and continue to live with the

petitioner. This application was allowed, despite objections

filed by the wife. The wife then calls in question that order

which allowed the application in I.A.No.5 of 2018 in terms

of its order dated 24.11.2018 before this Court in Writ

Petition No.1338 of 2019. This Court, by its order dated

23-1-2019, allowed the petition by the following order:

“6. I have considered the submission made by

both side.

The Hon’ble Supreme Court in the case of

STATE OF MAHARASHTRA v. RAMDAS

SHRINIVAS NAYAK & ANR reported in AIR 1982

SC 1249, has held that if a particular contention

raised by a party is not considered by the trial Court,

then in such a situation the appropriate remedy for

the aggrieved party is to seek review of the order.

7. In view of the aforesaid enunciation of law

by the Hon’ble Supreme Court and in the facts of the

case, I deem it proper to dispose of this petition with

liberty that in case the petitioner files an application

for review of the order dated 24-11-2018, within a

period of one week from the date of receipt of

certified copy of the order passed to-day, the Family

Court shall decide the same by a speaking order,

after affording an opportunity of hearing to the

parties within a period of three weeks from the date

of filing of such an application by the petitioner,

before proceeding to implement the order dated 24-

11-2018./

It is made clear that this Court has not

expressed any opinion on the merits of the case.

With the aforesaid liberty, the writ petition is

disposed of.”

This Court permitted the wife to prefer a review petition

before the same Court seeking review of the order dated

24-11-2018. It is then the wife files detailed review

application seeking review of the earlier order by way of

filing I.A.No.8 of 2019. Objections were filed by the

husband to the said review contending that mobile number

and call record details were absolutely necessary to

demonstrate illicit relationship between the wife and the

petitioner which was coming in the way of a happy

marriage to the husband and the wife which in fact had

corrupted innocence and moral values of the minor child.

Therefore, he wanted to prove the said point. The

concerned Court, by its order dated 23.02.2019, does

something new. On a consideration of the review

application and the objections filed to it, the concerned

Court passed the following order:

“18. As stated supra, the respondent/husband

is not seeking for summoning of conversation

through calls, SMS chats, but only he is seeking

the tower location details for adjudication of

case in accordance with law. Therefore, if the

tower location details are summoned, it will

suffice justice. Hence in the light of the above,

without going to the other aspects and on

merits of the case, looking to the surrounding

circumstances, the nature of pleadings, the

allegations made against each other, the relief

sought by the petitioner, in the interest of

justice, this court do not hesitate to answer the

point No.1 partly in the negative.

19. Point No.2: For the reasons stated on

Point No.1, this Court proceed to pass the following:

ORDER

I.A.No.VIII under Order 47 Rule 1 r/w Section

114 and 151 of CPC filed by the petitioner/wife is

hereby dismissed partly.

Consequently, instead of summoning the

Regional Manager, Bharthi Airtel Limited to place the

call details, conversation and SMS logs, the

respondent/husband is entitled to get tower

location details only, from the concerned

authority. Thus the Regional Manager, instead

of appearing before the Court, can transmit the

Tower Location details only with regard to the

concerned phone numbers before the Court.

Keeping the fact of relationship between the

parties, there is no order as to costs.”

(Emphasis added)

The Court observes that the husband is not seeking

summoning of conversation through calls, SMS chats but

he is only seeking tower location details for adjudication of

the case in accordance with law. Therefore, the reasoning

of the concerned Court is that it would not violate privacy.

It directs the Regional Manager, Bharthi Airtel Limited to

place the tower location details only. Of whom is the

question – of the wife or the petitioner herein. The

petitioner is a third party as he is not a party to the

proceedings. Therefore, he rushes to this Court contending

that his right to privacy is violated by the order.

8. The issue would now be whether the order would

violate the right to privacy of the petitioner. As stated

earlier, the petitioner is not a party to the proceedings.

The allegation of the husband is that the wife has illicit

relationship with the petitioner. The petition for divorce is

not filed by the husband. It is the wife who initiates

Matrimonial Case No.556 of 2018 against the husband

seeking annulment of marriage on the ground of cruelty.

9. The submission of the learned counsel appearing

for the 2nd respondent is that he wants his wife, there is a

child born from the wedlock and child’s future is in

jeopardy due to the act of the wife in having relationship

with the petitioner. If this was the intention of the

husband, he would not have waited for four long years as

on date, in preferring a petition seeking restitution of

conjugal rights. He wants to fight the matrimonial case

instituted by the wife for divorce and does not want to file

a case for restitution of conjugal rights. Therefore, the

intention of the husband is only to prove alleged adultery

on the part of the wife for which reason the tower details

of the third party cannot be permitted to be divulged. It

would undoubtedly violate the right to privacy of the

petitioner who is not a party, who is not put on notice and

whose defence is not permitted to be projected even.

Therefore, permitting tower details of the petitioner would

be contrary to law without him being in the know of any

proceedings between the husband and the wife, but only

on an allegation of the husband that the wife is in illicit

relationship with the petitioner.

10. Insofar as the judgments relied on by the

learned counsel appearing for the 2nd respondent/husband

are concerned, in the case of HIRACHAND SRINIVAS

MANAGAONKAR (supra), the issue was whether the wife

who had committed a wrong can take advantage of her

own wrong. The learned counsel for the husband seeks to

press this judgment into service for the reason, that the

wife having had relationship with the petitioner has

committed a wrong and if she has committed a wrong can

she be permitted to take advantage of her own wrong.

The judgment is inapplicable on the face of it. The facts of

the case at hand and what is challenged before this Court

has nothing to do with the findings in the judgment supra.

The next judgment rendered by the High Court of Delhi in

the case of DEEPTI KAPUR though refers to the judgment

in the case of JUSTICE K.S.PUTTASWAMY, holds that

call details between the wife and her friend were necessary

for a resolution of the dispute, and permits the same,

would again be inapplicable to the facts of the case at

hand. In the case therein the husband had clandestinely

recorded conversation between the wife and her friend in

which the husband had alleged that she has spoken highly

derogatory about the family of the husband. This was

permitted to be placed on record as electronic evidence,

notwithstanding the fact that the conversation was with

the friend, a third party. The inapplicability of the said

case, to the case at hand is that the conversation between

the wife and her friend had already been recorded by the

husband and it was a relevant fact to be brought in, in a

case instituted by the husband seeking annulment of

marriage, on the ground that the wife and her friend have

been speaking in the manner which would not be

conducive to continue the family relationship. Therefore,

the said production of the compact disc was permitted as it

was relevant for divorce proceedings. The said judgment

is again, on the face of it, inapplicable to the facts of the

case.

11. In the case at hand, tower details of the

petitioner is permitted to be taken and produced. It is for