Delhi High Court: In an appeal against an order dated 29-4-2025 (‘impugned order’), wherein the Family Court impleaded the alleged paramour of the husband (Respondent 2) as a party in divorce proceedings and allowed disclosure of Call Detail Records (‘CDRs’) of the husband and tower location details of the husband and Respondent 2, the Division Bench of Anil Kshetarpal* and Harish Vaidyanathan Shankar, JJ, affirmed the impugned order stating that the impleadment of Respondent 2 was statutorily mandated and that production of CDRs and tower location data was permitted.
Background
The petitioner (wife) and Respondent 1 (husband) had been married since 2002 and had two children out of wedlock. Subsequent marital discord led to institution of proceedings under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 (‘HMA’) for dissolution of marriage on grounds of adultery and cruelty.
In the petition before the Family Court, the wife had impleaded Respondent 2, alleging that the husband and Respondent 2 maintained an illicit relationship and travelled and stayed together on multiple occasions in specified hotels and guest houses.
The Family Court vide the impugned order had
-
Held that Respondent 2 was a necessary and proper party to the proceedings
-
Directed the Station House Officer and concerned telecom provider to produce the CDRs of the husband’s mobile number along with the tower location charts of the husband and Respondent 2 from January 2020 till date
-
Directed production of the husband’s bank/credit card statements, UPI transactions, demat accounts and ESOP details and rejected production of WhatsApp, Microsoft Teams and Facebook Messenger chats, FASTag records, leave records, hotel bookings and travel details stating that disclosure of such details amounted to ‘fishing and roving inquiries’.
The wife, husband and Respondent 2 had challenged the impugned order in the present appeal.
Analysis, Law and Decision
The Court framed 5 issues for determination and answered them accordingly.
i. Impleadment of Respondent 2
The Court noted that Order 1 Rule 10(2) of the Civil Procedure Code, 1908 (‘CPC’) grants the Court the discretion to implead or strike out a joined party at any stage of the proceedings. This discretion is circumscribed by Section 13(1)(i) of the HMA which recognizes adultery as a ground for divorce. The Court stated that the procedural framework under such petitions requires submission of full particulars of the alleged adultery, including identity of the person involved. The Court further stated that the rationale for impleadment of Respondent 2 was two-fold: Firstly, the allegations of adultery entail civil consequences and stigma and recording such findings without giving the alleged paramour a right of hearing would be contrary to the principles of audi alteram partem; Secondly, since the allegations of adultery touch upon the reputation and dignity of a third person, justice requires that such person be given a fair opportunity to defend themselves.
Thus, the Court upheld the Family Court order to the extent of impleadment of Respondent 2 stating that such impleadment was mandated by statutory rules and principles of natural justice.
ii. Production of CDRs and Tower location Data
Reading Section 151 of the CPC with Section 14 of the Family Courts Act, 1986 and Section 165 of the Evidence Act, 1872, the Court stated that the role of matrimonial courts is inquisitorial and tasked with actively eliciting the truth rather than being mere passive arbiters. The Court further stated that in cases where adultery is alleged, proof may often be circumstantial, and that evidence of association, stay at hotels, or patterns of communication may constitute relevant circumstances. CDRs and tower location data, if appropriately circumscribed to a defined period, serve as corroborative material to either establish or negate the charge of adulterous association. Such material cannot, therefore, be dismissed as a roving enquiry as it is directly relevant to the issue in controversy.
The Court noted that the wife in the present case had only sought production of evidence which she reasonably believed would prove her charge of adultery, which by its nature could only be inferred from circumstances.
Thus, the Court held that the direction to disclose CDRs and tower location data was not a speculative fishing exercise, but one directly tied to the pleadings. Being neutral business records maintained by telecom operators, such data could provide corroborative circumstantial evidence, without trenching upon the substantive content of private communications. The Court further noted that disclosure, being confined to the time-frame corresponding to the period alleged in the pleadings was fair and justified.
Hence, the Court upheld the order of the Family Court, directing disclosure of CDRs of the husband and tower location data of both husband and Respondent 2, and modified it to the extent that such disclosures remain confined to the specific period pleaded, and that the records be produced in sealed cover, subject to confidentiality safeguards.
iii. Production of messages exchanged on social media, financial records and hotel records
The Court noted that under Order 11 Rule 14 of the CPC, the applicant seeking discover of a document must demonstrate a prima facie link between the requested documents and the claim or defense. The Court stated in the present case the wife’s application clearly requested documents related to financial transaction, communications and associations relevant to allegations of adultery and a blanket refusal on the ground of ‘fishing inquiry’ would defeat the purpose of Order 11 Rule 14 of the CPC.
The Court held that the Family Court’s rejection of production of WhatsApp, Facebook messenger and Microsoft Teams messages was justified since they were speculative and unrelated to the matters in dispute. However, the Court allowed the production of hotel and guest house records where the husband and Respondent 2 stayed, subject to court-imposed safeguards such as inspection under Court supervision or production in sealed covers to prevent misuse.
The Court stated that in the present case, the wife was not seeking information about any stranger staying in the hotel, but rather her legally wedded husband, who she had a reason to believe is indulging in adultery with a particular woman. Since the wife sought specific information regarding her husband’s stay during a specific period at a specific hotel, it could not be said that the wife was indulging in any roving and fishing inquiry.
The Court opined that the Family Court’s approach in permitting production of only those hotel records and financial transactions that were relevant to the suit demonstrated a reasoned exercise of judicial discretion and was therefore held to be justified.
The Court, thus, directed the SHO to call for CDRs of the husband and tower location charts of the husband and Respondent 2 from January, 2020 till date from the concerned telecom providers, and place them in sealed covers before the Family Court.
The Court also directed the husband to furnish the relevant financial records and documents relating to hotel bookings subject to confidentiality safeguards.
[X v. Y., 2025 SCC OnLine Del 5712, decided on 29-8-2025]
*Judgement authored by- Justice Anil Kshetarpal
Advocates who appeared in this case :
For the Appellant: Prateek Chaudhary, Advocate
For the Respondent: Prashant Ghai, Prashant Singh, Advocates
