Delhi HC: Balancing Substantive Justice with Proportionality and Privacy Protections in Spousal Financial Disclosure

 

 A balanced scale symbolizing justice weighing financial documents against privacy protection

 The judgment from the High Court of Delhi concerns a matrimonial dispute where the Wife sought dissolution of marriage on grounds including adultery and cruelty. One key aspect of the judgment relates to the production of the Husband’s financial documents during the litigation process.

Context

·       The Wife applied under Order XI Rule 14 of the Code of Civil Procedure (CPC), seeking production of various financial documents of the Husband.

·       These documents included credit card statements, UPI transaction records, demat account statements, paytm transactions, Amazon purchase records, ESOP details, and statements from multiple years.

·       The Wife argued these documents were necessary not only to substantiate adultery but also to assess the Husband’s financial capacity for determining permanent alimony under Section 25 of the Hindu Marriage Act (HMA), 1955.

Family Court’s Approach

·       The Family Court partially allowed the application, permitting production of financial documents at Serial Nos. (i) to (viii), (x), (xii), and (xiii), essentially covering relevant bank and credit card statements, investment records, and documents evidencing income and assets.

·       It rejected other requests, including WhatsApp, Microsoft Teams, Facebook Messenger chats, FASTag records, leave records, hotel bookings, and travel details, on the ground that they amounted to fishing and roving inquiries beyond the scope of pleadings.

Husband’s Contentions

·       The Husband contended that the application for financial documents was premature since alimony claims arise only after the divorce decree.

·       He also argued the documents sought were irrelevant to the current stage, overly broad, and an invasion of privacy.

·       He claimed compliance with disclosure rules as per Rajneesh v. Neha (2021) and emphasized professional confidentiality concerns.

·       He further asserted some documents were not under his control and that the Wife’s requests were a fishing expedition unsupported by specific pleadings.

The High Court’s Findings on Financial Documents

·       The Court recognized the wide but not unlimited scope of discovery under Order XI Rule 14, emphasizing that documents sought must be relevant to the matters in dispute.

·       It stressed the need for a practical and flexible approach rather than a blanket rejection of discovery applications on grounds of speculation.

·       The Court held that the Wife is entitled to documents specifically related to her legally wedded Husband and the allegations—documents tied to a particular person, period, and issue.

·       It found the Family Court’s partial allowance appropriate and reasoned, permitting production of documents directly pertinent to the Wife’s claims and rejecting those beyond the pleadings or unrelated to financial standing or maintenance claims.

·       The judgment emphasized balancing the Wife’s right to evidence with the need to protect the Husband from undue fishing, harassment, or intrusion into unrelated private matters.

·       The Court allowed production of the financial documents at Serial Nos. (i) to (viii), (x), (xii), and (xiii) in a manner proportional to the issues in dispute.

·       It concluded that allowing these financial disclosures does not constitute an abuse of the discovery process and is justified for a fair adjudication of claims.

Conclusion

The judgment confirms that in matrimonial disputes:

·       Courts can order production of financial documents relevant to alimony, maintenance, and proving adultery.

·       Discovery must be specific, relevant, and proportionate to the pleaded issues.

·       Courts will reject irrelevant, speculative, or overly intrusive disclosure applications to protect privacy.

·       The court exercises a balanced discretion to ensure fair access to necessary evidence while preventing fishing expeditions.

·       The Husband was directed to produce the specified financial records to facilitate effective legal proceedings, subject to confidentiality safeguards.

This decision affirms the principle that evidence production in matrimonial cases must support substantive justice without violating proportionality and privacy protections.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 MAT.APP.(F.C.) 251/2025 and CM APPL. 50033/2025

MS. TANVI CHATURVEDI Vs MS. SMITA SHRIVASTAVA & ANR.

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN

SHANKAR

Author: ANIL KSHETARPAL, J.

Judgment pronounced on: 29.08.2025.

Citation: 2025 DHC 7474 DB.

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Delhi HC: Court Can Seek Mobile Location of Spouse to Ascertain Adultery in Matrimonial Disputes: A Detailed Analysis

 

 Introduction

The intersection of digital privacy rights and matrimonial law has become a critical area of jurisprudence in contemporary India. The recent Delhi High Court judgment in Ms. Tanvi Chaturvedi v. Ms. Smita Shrivastava & Anr.Citation: 2025 DHC 7474 DB.  marks a significant milestone in establishing the legal framework for courts to seek mobile location data and Call Detail Records (CDRs) to ascertain adultery in matrimonial disputes. This comprehensive analysis examines the evolving legal position on courts' authority to collect digital evidence in matrimonial proceedings while balancing fundamental privacy rights with the imperative of fair trial.

Legal Framework for Mobile Location Data Collection

Constitutional Foundation

Read full judgment here: Click here.

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Bombay HC: Although Adultery Is Grounds For Divorce, It Can't Be A Ground To Deny Child's Custody

 The submission made on behalf of the petitioner/husband as regards the adulterous behavior of the respondent/wife, according to me, these are the allegations which are made in the marriage petition by Husband before Family Court, filed in the year 2020. The said allegation has to be proved by leading evidence before the Family Court. Therefore, based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt as held by the various judgments that not a good wife is not necessarily that she is not a good mother. {Para 45}

46. In the present case as regards, the allegations made by

Husband are still to be proved. In the judgment of Vineet Gupta

Vs. Mukta Aggarwal reported in 2024 SCC Online Del 678, it has

been held that even though the allegations are proved as regards

the wife’s extra martial affair, still as far as the custody of the

minor children is concerned, in a given case, the same can be

granted to the wife.

47. Adultery is in any case a ground for divorce, however

the same can’t be a ground for not granting custody.

48. Hence, this writ petition fails. No costs.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.4060 OF 2024

Petitioner  V/s.  S

CORAM : RAJESH S. PATIL, J.

Dated:  19 APRIL 2024.

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What are different types of traditional divorce under muslim law?

 In Islamic law, divorce is known as "Talaq," and there are different types of divorce recognized within the Sunni and Shia traditions. It's important to note that the details and interpretations of these concepts may vary among different schools of thought within Islam.

1. 1) Talaq:

   • Talaq-e-Ahsan: This is the most preferred and considered the most proper form of divorce. It involves a single pronouncement of divorce, followed by a waiting period (iddah) during which the wife cannot remarry. If the wife is not pregnant, the waiting period is three menstrual cycles; if she is pregnant, it lasts until the child is born.
   • 2)Talaq-e-Hasan:
   It consists of three pronouncements made during three consecutive menstrual cycles, with a waiting period (iddah) following the final pronouncement.

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Whether disciplinary inquiry can be initiated against any public servant for committing the offence of adultery after joseph shine Judgment?

 In fact, this Court posed the following question. In a given case, the authority is presented with the following set of facts. An officer is proceeded against Under Section 45 of the 1950 Act; the charge against him is adultery; it is alleged, in other words, that he has committed adultery within the meaning of Section 497 Indian Penal Code which has been struck down. Mr. Kaleeswaram Raj, learned Counsel for the original Petitioner, very fairly submits that, the fact that Section 497 Indian Penal Code has been struck down may not stand in the way of the authorities proceeding against the officer with the aid of the provisions contained in Section 45 of the 1950 Act. Of course, he adds that the decision must finally depend upon the play of facts.{Para 22}

23. This Court in the case in question was concerned only with the validity of Section 497 Indian Penal Code and Section 198(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity). This Court spoke through separate but concurrent judgments. Apart from the lead judgment of Hon'ble Mr. Justice Dipak Misra, former Chief Justice of this Court, and with whom, Hon'ble Mr. Justice A.M. Khanwilkar concurred, the other learned Judges wrote separate opinions. However, they agreed that Section 497 Indian Penal Code and Section 198 Code of Criminal Procedure were unconstitutional. The premise on which the provision was struck down was that it offended Articles 14, 15 and 21 of the Constitution.

In this case, this Court had no occasion, whatsoever, to consider the effect of the provisions of the Acts in question. In fact, we may notice that it is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon'ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong.

24. In view of the fact that the scheme of the Acts in the context, in particular, of Article 33 of the Constitution did not fall for the consideration of this Court, we must necessarily observe and clarify that the judgment of this Court in Joseph Shine v. Union of India MANU/SC/1074/2018 : (2019) 3 SCC 39 was not at all concerned with the effect and operation of the relevant provisions in the Acts which have been placed before us by the applicant. In other words, this Court was neither called upon nor has it ventured to pronounce on the effect of Sections 45 and 63 of the 1950 Act as also the corresponding provisions in other Acts or any other provisions of the Acts.

25. We only make this position clear and dispose of the miscellaneous application.

 IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 2204 of 2020 in Writ Petition (Criminal) No. 194 of 2017 and Miscellaneous Application No. 1702 of 2021 in Writ Petition (Criminal) No. 194 of 2017

Decided On: 31.01.2023

Joseph Shine Vs. Union of India (UOI)

Hon'ble Judges/Coram:

K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ.

Author: K.M. Joseph, J.

Citation: MANU/SC/0133/2023.

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Can the family court direct, upon the wife's request, the production of hotel details and call details of her husband to prove his adultery, or can the husband claim the right to privacy?

 I have also considered the petitioner’s plea that the direction to produce the records sought by the respondent would amount to roving and fishing inquiry by the Court but do not find any merit in the same. At the cost of repetition, I may observe that it is not as if the respondent is seeking information about any stranger staying in the hotel, her plea is only for records pertaining to her legally wedded husband, who she has a reason to believe is indulging in adultery with a particular lady in a particular room. The respondent has sought details of her husband’s stay in a particular hotel during a specific time period and not of his friend or the friend’s daughter. Similarly she has also sought the call details of her husband alone, whose phone numbers she has provided. Once the respondent is seeking specific information regarding her husband’s stay during a specific period at a specific hotel, it cannot be said that the respondent is indulging in any roving and fishing inquiry. None of the respondent’s prayers, therefore, seek any information about any stranger or about any vague incident or period. The decision in Sharda (supra) relied upon by the petitioner is, therefore, not applicable to the facts of the case. {Para 35}

36. Now coming to the petitioner’s plea that the divulgence of this information to the respondent, even though, initially being sought in a sealed cover would be violative of his right to privacy or the right of his lady friend or that of her minor child. While Ms. Singh is correct in urging that even a legally wedded wife may not have a fundamental right to know every minor detail about her husband or to seek information as to with whom he talks on his mobile phone and therefore the production of information as directed under the impugned order may amount to infringement of privacy of the petitioner husband, what cannot be ignored is that the respondent is the legally wedded wife who has a reasonable apprehension that her husband is indulging in adultery for which she has filed a petition seeking divorce under Section 13(1)(i) of the Hindu Marriage Act. She has pleaded before the learned Family Court that she has no other means to prove except by securing information from the hotel and the mobile agencies, which plea has been accepted by the learned Family Court. Can it be said that the learned Family Court, in the light of the documents already placed on record, was unjustified in coming to her aid, is the question which needs to be answered by this Court. As held in Linda Constance Edwards (supra) rarely would there be direct evidence of adultery. I am therefore of the considered view that when in a case like the present, when a wife seeks the help of the Court for procuring evidence which would go a long way to prove adultery on the part of her husband, the Court must step in; this would be in consonance with Section 14 of the Family Courts Act which gives a leeway to the Court to consider evidence which may be not admissible or relevant under the Indian Evidence Act.

41. Having given my thoughtful consideration as to whose right should prevail in the facts of the present case, I am inclined to accept the respondent’s plea. The petitioner’s claim is based solely on the right to privacy which, as held in K.S. Puttuswamy (supra) and Joseph Shine (supra) is not an absolute right; on the other hand, the respondent’s prayer is based not only on morality but also on specific rights granted under the Hindu Marriage Act and the Family Courts Act. I, therefore, have no hesitation in holding that the respondent’s right must prevail and therefore, find no reason to interfere with the impugned orders. The learned Family Court by way of the impugned orders has sought records which pertain only to the respondent’s husband and not to his friend or her daughter. There is, therefore, no question of their right of privacy being violated in any manner.

 Neutral Citation No. 2023:DHC:3197

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

CM(M) 64/2023, CM APPL. 2082/2023 (stay) & CM APPL. 6247/2023 SACHIN ARORA  Vs MANJU ARORA .

 CORAM: HON'BLE MS. JUSTICE REKHA PALLI 

Date of Decision: 10.05.2023 

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Whether the court can direct DNA test in Criminal case U/S 498A of IPC?

 iii. In Inayath Ali v. State of Telangana, MANU/SC/1538/2022, the question before this Court was whether a DNA test of two minor children could be ordered by a Court, with a view to facilitate proof of allegations Under Sections 498A, 323, 354, 506 and 509 of Indian Penal Code, 1860. This Court speaking through Aniruddha Bose, J. at the outset took note of the fact that the dispute was essentially one relating to dowry related offences, and that paternity of the children of the complainant was not directly related to the allegations. The complainant therein sought for a direction to conduct DNA test of her two minor children, in order to establish that they were born as a result of her forced relationship with her brother-in-law. Rejecting the complainant's plea, this Court held as under as to the power of Courts to subject children to DNA testing, in proceedings in which their status is not required to be examined:

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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What is the test of eminent need?

 ii. In Bhabani Prasad Jena, this Court emphasised that a direction to use DNA profiling technology to determine the paternity of a child, is an extremely delicate and sensitive aspect. Therefore, such tests must be directed to be conducted only when the same are eminently needed. That DNA profiling in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption Under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. It was further declared that a Court may direct that a DNA test be conducted, to conclusively determine paternity, only when there is a strong prima-facie case in favour of the person seeking such a direction.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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Whether the court can order DNA test of child to prove adultery of wife?

 Use of DNA profiling technology as a means to prove adultery:

11. With the advancement of science, DNA profiling technology which is a tool of forensic science can, in case of disputed paternity of a child by mere comparison of DNA obtained from the body fluid or body tissues of the child with his parents, offer infallible evidence of biological parentage. But, it is not always necessary to conduct a DNA test to ascertain whether a particular child was born to a particular person, however, the burden of proof is on the husband who alleges illegitimacy. He has to establish the fact that he has not fathered the child born to his wife which is a negative plea by positive proof in accordance with Section 112 of the Evidence Act.

11.1. A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty Under Article 21 of the Constitution, vide Sharda. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise. Thus, an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case.

11.2. This Court has, while considering questions connected with Section 112 of the Evidence Act, consistently expressed the stand against DNA tests being ordered on a mere asking. Further, the law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity. The following decisions of this Court are highly instructive in determining the circumstances under which a DNA test may be ordered by a Court in matters involving disputed questions of paternity:

26. From the above discussion it emerges:

(1) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising Under Section 112 of the Evidence Act.

(4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) no one can be compelled to give sample of blood for analysis.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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Supreme Court: Children's Right Not To Have Their Legitimacy Questioned Frivolously is Part Of Their Privacy Right

 The first factor, which, in our opinion, is of significance, is that in the judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the Respondent No. 2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. {Para 7}

8. In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis. The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject-proceeding.

9.  Merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court's direction.

The right of children not to have their legitimacy questioned frivolously in Courts of Law:

17. Further, children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023

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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

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Whether the court can refuse to give custody of the child to the mother if the father fails to prove adultery by leading full-fledged evidence?

 Another fact, for which definitely objection will have to be taken in respect of the observations in para No.66 of the impugned Judgment, which are in respect of allegations of adultery. It appears that the opponent had produced on record the transcription of the mobile conversation between the applicant and the said person and the copies of their photos showing closeness along with his affidavit. That evidence has been considered by the

learned Trial Judge without it was proved in all legal aspects. For the mobile conversation it appears, as there is absolutely no discussion, there was no mandatory certificate under Section 65-B of the Indian Evidence Act. So also, as regards the photos are concerned, it appears that the concerned photographer was not examined and these documents have not been separately exhibited. There was no opportunity to the wife to cross-examine

the husband, and therefore, when, though the fact of adultery is alleged and it has not been proved by cogent and conclusive evidence by the husband, the Trial Judge ought not to have even considered it for a sentence also. Further, in para No.68 the learned Judge went on to observe that those allegations

regarding relationship of the wife and the said person were not without foundation or reckless. That was a factor, which has been taken by him for considering/deciding the custody of the children. This is totally illegal. When the full-fledged evidence was not led, the Court had not come to the conclusion that the allegations of adultery are proved, merely, because some

documents have been produced, it cannot be taken as supporting evidence and then a conclusion can be drawn that wife/mother is not entitled to get custody. It will have to be held that at this stage, in this matter, allegations of adultery are not proved by the husband. There was an opportunity for him to prove it by leading the appropriate evidence, which he has not availed.

{Para 13}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO.393 OF 2021

WITH

CIVIL APPLICATION NO.3803 OF 2021

Ratnamala  Pandurang Zate, Vs Pandurang Udhav Zate,

CORAM : SMT. VIBHA KANKANWADI, J.

PRONOUNCED ON : 03rd JULY, 2021

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Whether the court can direct wife to undergo DNA test in Divorce proceeding on the ground of adultery?

The only issue which has been canvassed as appears from

order dated 21.10.2019 is that whether a Court in a divorce

petition under Section 13 of the Hindu Marriage Act, 1955 filed

by the husband on the ground of adultery can direct that the

wife, either to undergo a D.N.A. test or refuse to undergo a

D.N.A. test, but in case she elects to undergo a D.N.A. test, then

findings of the D.N.A. test will determine conclusively the

veracity of accusation leveled by the petitioner-husband against

her. It is further mentioned that in case, wife refuses to undergo

a D.N.A. test, then whether a presumption can be drawn by the

Court against the wife that is to say whether report of D.N.A.

test is just a piece of expert evidence or a conclusive or a

substantive piece of evidence.

19. The husband's plea that he had no access to the wife when

the child was begotten stands proved by the DNA test report

and in the face of it, we cannot compel the Appellant to bear

the fatherhood of a child, when the scientific reports prove to

the contrary. We are conscious that an innocent child may not

be bastardized as the marriage between her mother and father

was subsisting at the time of her birth, but in view of the DNA

test reports and what we have observed above, we cannot

forestall the consequence. It is denying the truth. "Truth must

triumph" is the hallmark of justice. (emphasis is ours). This

Court has therefore clearly opined, that proof based on a DNA

test would be sufficient to dislodge, a presumption under

Section 112 of the Indian Evidence Act.

10. Thus, the crux of the matter is that even Supreme Court has

approved D.N.A. Test as the most legitimate and scientifically

perfect means, which the husband could use, to establish his

assertion of infidelity. This should simultaneously be taken as

the most authentic, rightful and correct means also with the

wife, for her to rebut the assertions made by the respondenthusband, and to establish that she had not been unfaithful, adulterous or disloyal.

ALLAHABAD HIGH COURT

Case :- MATTERS UNDER ARTICLE 227 No. - 7442 of 2019

 Smt. Neelam Vs Ram Asrey

Coram: Hon'ble Vivek Agarwal,J.

Order Date :- 21.10.2020

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Whether the court should give divorce on the ground of adultery if the husband alleges that the wife has committed adultery before Marriage?

It is thus clear that the learned Family Court had arrived at the right conclusion including observing that the accusations of adultery heaped by the appellant/husband on the respondent No.1/wife are without any proof whatsoever of the respondents living in adultery and having an illicit relationship either before or post the marriage of the parties and that the respondent No.1/wife had treated the appellant/husband with any cruelty. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 12.06.2020

 MAT.APP.(F.C.) 327/2019 & C.M. No.53990/2019

VISHAL SINGH  Vs  PRIYA @ PIHU 

CORAM:

HON’BLE MS. JUSTICE HIMA KOHLI

HON'BLE MS. JUSTICE ASHA MENON

ASHA MENON, J.

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Bombay HC: Wife is not entitled to maintenance if divorce is on ground of adultery

 Learned counsel for the Petitioner-wife would urge that,

even if the Petitioner is a divorcee, having regard to the provisions of

Sub-section (4) of Section 125 of the Code of Criminal Procedure,

1973 she is entitled for maintenance as she continues, to be a woman,

within the meaning of Sub-section (4) of Section 125 of the Act.

6. He would draw support from the Judgments of the Apex

Court in VANAMALA VS H.M.RANGANATHA BHATTA reported in 1995

DGLS (SC) 722 and ROHTAS SINGH VS RAMENDRI reported in 2000

DGLS (SC) 450 so as to support his aforesaid contentions. The sum

and substance of the submission is even if there is a decree of divorce

passed on the allegation of adultery, still bar under Sub-section (4) of

Section 125 of the Act, will not be attracted, as even after divorce, she

ceases to have the status of a wife but, she continues to be a woman.

 In the aforesaid background, both these Judgments will be

hardly of any assistance to the Petitioner. Considering the expressed

embargo on the right of the Petitioner, to claim maintenance

particularly, divorce was ordered on 27.4.2000 based on the allegation

of adultery, the Court below has rightly held that the Petitioner-wife is

not entitled for maintenance.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2547 OF 2016

Sanjivani Ramchandra Kondalkar vs.  Ramchandra Bhimrao Kondalkar & anr 

CORAM : NITIN W.SAMBRE,J

DATED : 18th DECEMBER, 2019

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Whether Court should permit DNA test against wish of grown up children?

If the major children are not co-operating with the DNA test on the ground of privacy, reputation and dignity, what will be the consequence in the appreciation of evidence of the case has to be kept in mind while any order is passed. No adverse inference can be drawn in the given case as the contesting parties are the husband and wife and not the children. When the children are major, surely they cannot be compelled to give blood sample in a civil proceeding where they were not parties. The case projected by the petitioner seems to be that if DNA test proves the petitioner is not the biological father of the said three children, the corollary is that the wife committed infidelity and there is adultery.

6. Thus the second aspect to be considered in this matter is whether for a just decision, DNA test is eminently needed. Here, it can be said that a DNA test is not a direct evidence but a fact from which an inference can be drawn. This is not a case where the test is the only safe route to reach the truth. If the paternity of the children is the issue in the proceeding, DNA test may be the only safe method. It is not so in this case. In the case of the three major children, after the passage of a long time, the DNA test cannot be used as a short cut to establish infidelity that might have occurred decades ago. Even an order to undergo DNA test itself may its own effect on the reputation of the children in the society and it is also to be considered that they are major children born during the existence of a valid marriage, who are not party to the original proceeding. They are also not party in this proceeding.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 556 of 2017

Decided On: 12.06.2018

E.C. Ramakrishnan  Vs.  Mrinalini and Ors.

Hon'ble Judges/Coram:

V. Chitambaresh and K.P. Jyothindranath, JJ.

Citation: AIR 2019 (NOC) 255 Ker

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Latest Supreme Court and Bombay HC Judgments

Whether Adultery Judgment passed by Supreme Court will operate retrospectively?

Hon'ble Apex Court in Maj. Genl. A.S Gauraya v. S.N Thakur (supra) has held that law laid down by the Supreme Court applies to all pending proceedings even with retrospective effect.

8. There is no dispute about the decision of the Supreme Court in the above cited decisions. In view of the decision of Hon'ble Apex Court holding Section 497 of Indian Penal Code is not an offence, the punishment awarded by the Judicial Magistrate First Class, Bhiwapur in Summary Criminal Case No. 41/2010 is liable to be quashed and set aside. Hence, following order.

In the High Court of Bombay

(Before M.G Giratkar, J.)

Rupesh  Haribhau Mundle, v. Shri Charandas  Fulchand Chandanbawane

Criminal Revision Application No. 2 of 2018

Decided on December 14, 2018

Citation:2018 SCC OnLine Bom 6292

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Supreme Court Judgment upholding sexual autonomy of married woman(Adultery Judgment)

 The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim.

To criminalize a certain conduct is to declare that it is a public wrong which would justify  public censure, and warrant the use of criminal sanction against such harm and wrong doing.

The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the „best interest‟ of the individual.

Andrew Ashworth and Jeremy Horder in their commentary titled „Principles of Criminal Law‟59 have stated that the traditional starting point of criminalization is the „harm principle‟ the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be 59 Oxford University Press, (7th Edn.) May 2013  proved before the State can classify a wrongful act as a criminal offence.

John Stuart Mill states that ―the only purpose for which power can be rightly exercised over the member of a civilized community against his will is The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong.61 That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.

17. In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.

60 Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman, Roberts, & Green Co. 1869, 4th Edn.

61 A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles Of Criminalisation, Oxford: Hart Publishing (2011)  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 element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.

The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a  civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

18. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V.

Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 194 of 2017 (Under Article 32 of the Constitution of India)

Decided On: 27.09.2018

Joseph Shine Vs. Union of India (UOI)

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