"Right to Privacy under Personal Laws: An Analysis"

3.3 Family Law I

Submitted by:
AARYA KHOPKAR
UID no. UG2021-01
BA.LL. B (HONS.)
SEMESTER III

Submitted to:
Prof. (Dr.) Vijender Kumar
Professor of Law
Ms. Ashwini Kelkar
Assistant Professor of Law

1
 Table of Cases

Sr. Name of Parties Citations

No.
1. Preeti Jain v. Kunal Jain MANU/RH/0335/2016
2. Col. S.J. Choudhary v. The State MANU/SC/0094/1984
3. Mr. 'X' v. Hospital 'Z’ 21 September, 1998
4. MP Sharma v. Satish Chandra 1954 AIR 300
5. Govind v. State of Madhya Pradesh (AIR 1975) SC 1378
6. R. Rajagopal v. State of Tamil Nadu (1994) SCC (6) 632
7. Union for Civil Liberties (PUCL) v. Union of India. (AIR 1997) SCC 568
8. Justice K. S. Puttaswamy (Retd.) v. Union of India (AIR 2017) SCC4161
9. Griswold v. State of Connecticut 381 US 479 (1965)
10. Trammel v. United States 445 U.S. 40 (1980)
11. Nawab Howaldar v. Emperor (1913) ILR 40 Cal 891
12. Ram Bharosey v. State of Uttar Pradesh MANU/SC/0175/1954
13. Verghese vs T.J. Ponnon (1969) 1 SCC 37, 41
14. Fatima v. Emperor AIR 1914 Lah. 380
15. Rayala M. Bhuvaneswari v. Nagaphanender Rayala AIR 2008 AP 98, 2008
16. Sharda v. Dharmpal AIR 2003 SC 3450
17. Sareetha vs T. Venkata Subbaiah AIR 1983 AP 356
18. Saroj Rani v. Sudarshan Kumar Chandha 9 AIR 1984 SC 1562

Table of statutes
Indian Evidence Act, 1872
Family Court Act of 1984
The Hindu Marriage Act, 1955

2
Sr. No. Table of content Page No.
1. Abstract 4
2. Introduction 4
3. Research Methodology 5
4. Research objective 5
5. Research question 6
6. Right to privacy 6
7. Analysis of Marital Rights and the Right to Privacy 7
8. An Analysis of Section 122 of Evidence act and Marital 8
Communication Privilege
9. Conversations Tapped Illegally: Protecting Marital Privacy 11
10. Is it Possible to Force a Party to a Divorce Process to Attend a 12
Medical Examination?
11. Legal Challenges to Section 9 of the Hindu Marriage Act: Asserting 12
Sexual Autonomy
12. Conclusion 13

3
 Abstract
This paper examines the relationship between India's family law and the right to privacy,
examining how the field is developing without focusing only on any one legislative provision.
It explores how family law has been shaped historically and how it has been reflected in
Christian, Sharia, and Hindu laws.
This paper analyses the impact of British colonialism on Indian family law by analysing
significant instances such as Preeti Jain v. Kunal Jain1 and Choudhary v. The State2. The
review covers problems with privacy in marriage, including controversies around marital
rape and topics like reproductive rights, health exams, and marriage rights.
All faiths recognise marriage as a voluntary, contractual partnership that grants rights to
spouses. Using current legal patterns, the paper assesses the effect of the Right to Privacy on
marriage relationships following its recognition. The careful examination seeks to clarify the
fine line that must be drawn between the legal requirements of marriage and the right to
privacy.

Introduction
Marriage, which is celebrated across the world in a variety of religious rituals, is the joining
of two people. This hallowed establishment, common to all religions, has a constant aim:
cultivating a deep bond founded on shared confidence and collaboration. The legal status and
inheritance rights of children born within the boundaries of a legitimate union are guaranteed
by the sanctity of marriage, which legitimises the close relationships between spouses.
Marriage is fundamentally based on love and trust, which represent the married pair as two
halves of a coin or two wheels of a chariot.
Couples get certain rights when they are married; these rights are referred to as marital rights.
These include basic elements including the right to upkeep, cohabitation, and property rights.
Notwithstanding the institution's perceived purity, its intrinsic flaws—marital rape, invasions
of privacy, and coercive behaviours like pressing a woman to have a male child—come to
light. When this happens, spouses who want to take legal action frequently run into problems
because of society expectations and the idea that marriage is unbreakable.
The confluence of individual liberty and legal limits has long been the subject of discussions,
none more so than the one pertaining to the Right to Privacy under Personal Laws. As a
fundamental aspect of personal autonomy, privacy takes on even more importance in the
close quarters of interpersonal interactions, especially marriage and family.
Moreover, determining the limits of marital rights and investigating the degree to which
partners may invade one another's privacy become crucial. The idea of spousal privilege is
introduced in Section 122 of the Indian Evidence Act, 1872, which forbids the revelation of
conversations between spouses while they are still married. The sanctity of married
partnerships is upheld by this provision; nonetheless, this research acknowledges and
addresses exceptions to this rule.

1
MANU/RH/0335/2016
2
MANU/SC/0094/1984

4
Beyond the standards established by Trial Courts, recent jurisprudential developments have
highlighted the discretion granted to Family Courts with respect to the acceptance or rejection
of evidence. The Preeti Jain v. Kunal Jain 3 case demonstrated the increased discretion that
Family Courts have in this area. Furthermore, a growing conundrum concerns the meeting
point between the Indian Constitution's Article 21 right to privacy and the safeguarding of
communications in the course of criminal trials. The intricacies resulting from family
legislation, namely the Family Court Act of 1984, add to the difficulties and ambiguities
pertaining to the admission and exclusion of evidence derived from conversations between
spouses. The goal of this research is to break down these complexities and offer a
comprehensive grasp of the legal framework pertaining to the right to privacy under personal
laws.

Research Methodology
The author uses secondary data sources, such as diverse legal texts and documents, to delve
into the many facets of the subject of "Right to Privacy under Personal Laws: An Analysis."
The author employs the doctrinal method of study to investigate the complex terrain of the
topic. Using a variety of reliable sources, a thorough examination of the many aspects of the
right to privacy is done.
It is crucial to remember that the researcher intentionally cleared their thoughts of biases,
tendencies, and assumptions. This methodology seeks to guarantee an impartial and objective
investigation of the issue, acknowledging that individual biases may obstruct the objective
understanding of the study subject.
Research Objectives
This research's main goal is to do an exhaustive and analytical analysis of India's personal
laws' provisions on the right to privacy. The main goal is to make sense of the regulatory
frameworks, procedural complexities, and legal nuances that affect the right to privacy. The
goal of the research is to offer a detailed analysis of important topics, such as the confluence
of privacy and spousal relationships, relevant legal provisions, historic instances, and the
constitutional underpinnings of the right.
Through illuminating these aspects, the study aims to provide significant perspectives for
academics, professionals in the legal field, and individuals negotiating the intricate landscape
of privacy rights in the context of personal laws. The ultimate objective is to promote
awareness, educate people, and shed light on the opportunities and difficulties related to the
right to privacy under the Indian legal system.

Research Questions
 The Right to Privacy and Spousal Privilege?
 What Effects Do Marital Communications Have on the Law?

3
MANU/RH/0335/2016

5
  Technology and Privacy Violations?
 Sexual Independence and Privacy Rights?
 Privacy Rights During Divorce Proceedings?

In order to provide a thorough analysis of the Right to Privacy under Personal Laws in India,
these research questions seek to explore the complex intersections of spousal privilege, legal
frameworks, technological advancements, sexual autonomy, and the changing landscape of
privacy within married relationships.

Right to privacy
A person is said to be in a condition of "privacy" when they are not being watched or
bothered by those who are not allowed to see them. It includes the right to maintain the
privacy of one's relationships and personal affairs. According to Black's Law Dictionary, the
ability to make decisions on one's own is the "right to personal autonomy," which is
synonymous with the right to privacy. This right gives people the ability to stop others from
utilising their personal information, including their name or photo. Unauthorised intervention
in someone else's personal life may be extremely upsetting and can impact their reputation,
confidence, family relationships, mental health, and peace of mind.
The Oxford Dictionary of Law defines the right to privacy as the freedom to be "left alone,"
allowing people to live in a way that keeps them unseen or unintimidated by others. This
right encompasses a number of areas, such as the privacy of romantic relationships, marriage,
having children, housing, employment, all forms of communication, and the right to maintain
one's physical integrity. Legal rulings have broadened the definition of the right to privacy to
encompass decisions about one's own body and reproductive system.
In the case of Mr. 'X' v. Hospital 'Z'4, the Supreme Court established a legal obligation on the
part of others to refrain from unwarranted and unjustified interference in an individual's
personal affairs, defining a right as an interest that is safeguarded and acknowledged by moral
and legal regulations. With the use of this legal right, people can seek defence against others
who are legally obligated to uphold their rights from interfering in an unjustified manner. The
right to privacy, which includes aspects like information privacy, decision-making privacy,
property privacy, private of the body, and intellectual privacy, is essential for exercising the
freedoms enshrined in the Indian Constitution.
The Indian Constitution's enforcement gave rise to a bitter debate about the right to privacy as
a basic right. The lack of a specific clause acknowledging the right to privacy as an essential
right resulted in difficulties for judges interpreting several parts of the constitution, most
notably Article 21. Indian courts first declined to acknowledge privacy as a basic right, as
seen by the decisions in MP Sharma v. Satish Chandra 5 and Kharak Singh v. State of Uttar
Pradesh. In the Kharak Singh case, however, Justice Subba Rao's minority judgement
recognised privacy as an essential component of the right to personal liberty under Article 21.

4
21 September, 1998
5
1954 AIR 300

6
The Supreme Court acknowledged the right to privacy under Article 21 in a number of later
instances, such as Govind v. State of Madhya Pradesh 6, R. Rajagopal v. State of Tamil Nadu 7,
and People's Union for Civil Liberties (PUCL) v. Union of India 8. In Justice K. S.
Puttaswamy (Retd.) v. Union of India9, the court acknowledged the petitioner's argument and
concluded that the right to privacy is a fundamental right that is inalienable to the rights to
life, personal liberty, freedom of speech and expression, and freedom of movement. This case
brought up the subject again. The court reversed its previous rulings, highlighting the need
for legal justification for any interference with an individual's right to privacy. In a major
clarification and advancement for the Indian right to privacy, the court ordered the federal
government to create a committee to recommend policies for managing personal data.

Analysis of Marital Rights and the Right to Privacy

The entitlements of a married spouse towards one another, including things like cohabitation,
maintenance, and other conjugal duties, are collectively referred to as marital rights. After
being married, the husband and wife become a family and go through several phases of
marital life. The first phase of married life is living together and performing marital
responsibilities, both of which should be carried out amicably to enhance the comfort and
contentment of the union. On the other hand, incompetence or poor performance might result
in a split.
When it comes to marital privacy, most nations in the world acknowledge its existence. The
famous case of Griswold v. 10State of Connecticut, in which a statute limiting couples' use of
contraceptives was contested on private grounds, serves as an example of how marital
privacy is recognised. According to the U.S. Supreme Court, such laws infringed upon the
Bill of Rights' guarantee of marital privacy.
Although post-marriage spouses are granted some rights, it is well recognised that these
rights are contingent upon the right to privacy. In State v. Perez, a husband videotaped his
wife taking a bath, which sparked a lawsuit alleging privacy invasion. The question of
whether a spouse may reasonably anticipate to be secretly recorded while using a common
domestic restroom alone was discussed by the court. The husband was deemed liable by the
court for breaching the wife's reasonable expectation of privacy.
One of the regular features of married life is sexual activity, which requires agreement from
both partners. Section 375 of the Indian Penal Code criminalises non-consensual sexual
activities. It is interesting, nevertheless, that marital rape is not punishable by law in India,
which raises questions regarding the violation of women's right to sexual autonomy.
Having children is viewed as a necessary part of marriage, but it may become problematic
when a woman is forced to have children against her will. Even though there are several laws
protecting women's rights, such the IPC and the Domestic Violence Act, they could not fully

6
(AIR 1975) SC 1378
7
(1994) SCC (6) 632
8
(AIR 1997) SCC 568
9
(AIR 2017) SCC4161
10
381 US 479 (1965)

7
address all of women's concerns. There are still cases of women being pushed into sexual
actions and into having children.
Despite the sacredness of marriage, advances in technology and society have changed the
nature of married relationships. The judiciary has stressed that a husband is not his wife's
master in light of the changing nature of marriages. Mutual trust and affection form the
cornerstone of a husband and wife's relationship.
Courts have seen an increase in cases involving women's right to privacy and marital rights
since the historic Justice K. S. Puttaswamy Case, in which the right to privacy was
acknowledged as a basic right under Article 21 of the Indian Constitution. It is understood
that any infringement on one's private rights upsets sentiments, confidence, and emotions.
Examining the recent judicial approach is crucial for gaining a comprehensive picture of the
present position of marriage rights and the right to privacy in the complicated world of
matrimonial rights.

An Analysis of Section 122 of Evidence act and Marital Communication Privilege

Spousal privilege, sometimes referred to as marital communication privilege, is covered
under Section 12211 of the Indian Evidence Act. This clause protects married people from
being forced to expose or make public any correspondence they have with their spouse. It
also forbids them from disclosing such correspondence. This legal provision was originally
derived from British colonial law, which India later adopted and modified.
Spousal privilege has its roots in mediaeval legal theories, which were brought to light in the
US Supreme Court decision of Trammel v. United States 12. Here, the concept that a married
couple was seen as a single entity was combined with the idea that an individual could not
implicate themselves since they had a personal stake in the outcome of the judicial process.
This viewpoint developed as a result of women's lack of an autonomous legal existence at the
time. The idea that a person's property—in this example, a spouse—should not testify against
the owner of that property was further supported by the legal position of women as
"property."
Testimonial privilege and spousal confidence privilege are the two categories under which the
privilege falls. Testimonial privilege emphasises the preservation of marital peace and the
avoidance of conflict by relieving a witness, especially a spouse, of the need to testify against
the accused spouse. In particular, Spousal Confidence Privilege is covered by Section 122 of
the Evidence Act. Its main objective is to protect couples' private discussions from prying
eyes and to prohibit either spouse from revealing such conversations in court.
There are several exclusions even with the protection this permission provides. Admissibility
of the communication depends on the spouse's permission; however, difficulties occur when
the spouse has passed away and no representative-in-interest has been named, making
consent hard to acquire. This exemption is best illustrated by the well-known case of Nawab
Howaldar v. Emperor13, in which a husband's letter to his wife prior to his passing was found
11
Indian Evidence Act, 1872
12
445 U.S. 40 (1980)
13
(1913) ILR 40 Cal 891

8
to be inadmissible. Another exception occurs when couples are involved in a lawsuit against
one another; the Law Commission of India's 185th Report on the Indian Evidence Act makes
clear that any judicial proceedings between the spouses are included in the definition of
"suit." The third exemption applies in situations when one of the spouses is accused of a
crime, including bigamy.
Marital conversations are protected by Section 122 of the Indian Evidence Act, however there
are several limitations and difficulties with this provision. Activities carried out by a spouse
that are not classified as communications are not covered by this privilege. For example, in
the case of Ram Bharosey v. State of Uttar Pradesh 14, the testimony of a woman who saw her
husband conceal a murder weapon was accepted because it was deemed an act rather than a
private conversation. As shown in Appu v. State, where a husband's confession to his wife
that was overheard by others was ruled valid, statements that are overheard by other parties
are also admissible. Notably, persons are protected under Section 122—rather than the
communication's substance. As stated in M.C., if a third person intercepts a letter that
contains correspondence between spouses, they are not restricted by Section 122 and are free
to reveal the contents. 15Verghese vs T.J. Ponnon, where the respondent's letters to his wife
were accepted into evidence.

Maintaining Confidentiality in Marriage: Exclusive Communications and the Right to

Privacy;
Once a couple is married, the Indian Evidence Act of 1872's idea of privileged
communication creates a barrier around them to preserve their conversations during their
marriage. Special topics are defined as privileged communications, which a witness is not
required to reveal, even if they so choose. The Indian Evidence Act, Section 118 16, states that
all individuals are generally competent to witness, if they are able to understand the questions
and give logical answers.
Section 120 confers competency to the parties in civil proceedings, enabling the plaintiff and
defendant to present evidence against one another. Likewise, in criminal trials, the accused's
spouse is seen as a credible witness. Certain conversations, however, are protected from
publication under Section 122 of the Indian Evidence Act, which expressly excludes
communications between spouses.
This clause, which expressly recognises the right to privacy inside the institution of marriage,
is a remarkable example of protecting married couples' private. Recognising that marriage
creates a special link, trust, and transparency between partners, Section 122 attempts to shield
these private conversations from being revealed without permission.
Although the norm contained in Section 122 is strong, there are several exceptions. For
example, a wife can testify about what her husband did on a certain occasion. A third party
who witnesses or overhears communications may testify on behalf of the other party.
Furthermore, with the permission of the person communicating or their agent in interest, a
spouse may provide proof of privileged communications.
14
MANU/SC/0175/1954
15
(1969) 1 SCC 37, 41
16
Indian Evidence Act, 1872

9
The rule prohibits recordings made without disclosure, even if taped conversations between
spouses have been found acceptable when done so with their knowledge and permission.
Notably, a spouse may reveal pertinent messages that their partner has sent them in specific
judicial actions involving married persons, including as lawsuits filed by spouses or situations
in where one spouse is charged with a crime against the other. The difficult balance between
marital privacy and the pursuit of justice through the judicial system is reflected in this
sophisticated framework.
Furthermore, Section 122 presents difficulties when parents mistreat their children. Justice
may be hampered if parent-to-parent communications regarding child abuse are deemed
inadmissible. For example, the pursuit of justice was undermined in the case of Fatima v.
Emperor17, when a mother killed her kid, since the husband's evidence was ruled inadmissible
under Section 122. It is critical to reevaluate granting privilege to ex-spouses and provide
exceptions for child abuse in order to allay these worries. The idea of marital communication
and its major influence on this legal rule are explained in detail by the following three
examples.

Preeti Jain vs Kunal Jain18

Understanding how legal laws and constitutional rights interact is crucial, as demonstrated by
the case of Kunal Jain charging his wife Preeti Jain of adultery. A legal challenge was
initiated after Kunal Jain produced video footage that was taken without his spouse's consent.
The video should not be allowed to be shown in court, according to Preeti Jain's attorney,
since it violates Section 65B of the Indian Evidence Act. Furthermore, it was argued that the
recording violated the spousal privilege guaranteed by Section 122 of the Act. The
inconsistent nature of the evidence was emphasised by invoking the right to privacy
guaranteed by Article 21 of the Constitution.
The Family Court accepted the tapes as evidence in spite of these objections. The ensuing
appeal that was heard by the Rajasthan High Court examined the complex interplay between
several legislative requirements. With a focus on the discretionary authority provided by
Section 14 of the Family Court Act, 1984—which, in its opinion, superseded Sections 122
and 65B of the Evidence Act—the High Court supported the Family Court's ruling.
The case discusses possible problems with the constitutionally guaranteed right to privacy
and provides important insights into the careful interpretation of legislative laws, notably Sec.
122. The High Court's ruling, which denied the appeal, calls into doubt the order in which
certain legislative requirements apply to family court cases.
The accused in Col. S.J. Choudhary v. The State 19 is charged with killing Krishan Sikand by
detonating a bomb, in accordance with Section 302 of the Indian Penal Code. The complex
specifics concern Krishan Sikand, the dead, and the accused's ex-wife, Rani Choudhary, who
moved out without formally divorcing him.

17
AIR 1914 Lah. 380
18
MANU/RH/0335/2016
19
MANU/SC/0094/1984

10
During the trial, Rani Choudhary submitted evidence, which the accused initially did not
dispute. He later challenged this, pointing out that Section 122 of the Indian Evidence Act of
1872 was inconsistent. This objection was dismissed by the Trial Court, which said it was late
because the evidence had already been considered.
The Delhi High Court determined that this case did not come under any of the almost
absolute exceptions under Section 122, although admitting their existence. It emphasised the
date of the divorce decision by restricting the exemption to communications that came before
the divorce. Whether the divorce would take effect from the Supreme Court's 1982 ruling or
the Trial Court's 1979 judgement was the key question. Only communications made prior to
1979 are exempt under Section 122 of the Indian Evidence Act, 1872, according to the High
Court's ruling, which upheld the Trial Court's ruling. This case underlines how important it is
to carefully review the legal deadlines and exclusions in the context of spousal
communication privilege.

Conversations Tapped Illegally: Protecting Marital Privacy

The pervasiveness of phone and mobile communication has created a complex network of
interpersonal connections that frequently delve into the areas of emotional expression and
personal revelation. But improper use of this technology, especially when one partner records
the other's discussions without permission, seriously jeopardises a married couple's right to
privacy. The Andhra Pradesh High Court's decision in Rayala M. Bhuvaneswari v.
Nagaphanender Rayala20 explores the propriety and consequences of this kind of behaviour.
In this instance, the sanctity of private discussions was violated when the husband secretly
taped his wife's chats with her parents and friends. The court vehemently denounced this
betrayal of the mutual faith and trust that are fundamental components of a married existence.
It claimed that such acts constitute a breach of the spouse's right to privacy in addition to
violating their constitutional and legal rights. The court stressed that marital duties do not
excuse behaviour that infringes on one party's basic rights.
The court's position shows that it is dedicated to protecting people's privacy and dignity when
they are married. It emphasises that although being married brings with it particular
responsibilities and privileges, these are dependent upon and subordinate to the more general
rights that are granted to each spouse. Therefore, legal action becomes an option if a
husband's acts violate the wife's rights, whether they are stated explicitly or implicitly given.
The court's unwavering ruling that evidence gathered through unlawful recording is
inadmissible regardless of its veracity serves as more support for the need to protect marital
privacy as an untouchable fundamental. Legal and constitutional rights must be upheld in the
sake of marital peace. Unauthorised conversation tapping is one clear example of how this
right is violated, and it is thus unlawful and unconstitutional.

Is it Possible to Force a Party to a Divorce Process to Attend a Medical Examination?

20
AIR 2008 AP 98, 2008

11
Within the complex web of married life, the ability of each partner to carry out their marriage
duties is of utmost significance. In cases when one partner requests a divorce or annulment
and claims the other is unable, the petitioner has the burden of evidence. It is possible to raise
defences like insanity, impotence, or venereal disease. Under such circumstances, the
controversial topic of requiring a party to submit to a medical examination arises, entwining
privacy and human dignity concerns.
A seminal case that clarifies this issue is Sharda v. Dharmpal 21. Under sections 12(1)(b) and
13(1)(iii) of the Hindu Marriage Act, 1955 22, the husband filed for divorce in this case,
claiming his wife was mentally incapacitated. Meanwhile, he submitted an application for his
wife to be examined medically on the grounds that she was mentally incapable of carrying
out her marital responsibilities.
The complex relationship between the right to privacy and the requirement of medical exams
in marital cases was debated by the Supreme Court. It highlighted the need for a medical
assessment to be conducted in circumstances when divorce is requested due to physical
incapacity, such as impotence or schizophrenia, in order to reach a just conclusion. The court
recognised the possible conflict between the requirement for a thorough evaluation of a
party's physical or mental status and the right to privacy (as guaranteed by Article 21 of the
Indian Constitution).
In settling this dispute, the court emphasised that there are limitations on the right to privacy
and that it is not unqualified. It emphasised the necessity of taking a balanced stance while
acknowledging the competing interests at work. The court made it clear that medical
examination orders granted in marital matters do not automatically contravene Article 21. It
did, however, impose strict requirements: the petitioner had to prove a prima facie case, and
the court had to have enough evidence before it.
Significantly, the court decided that negative conclusions might be made about a party if they
fail to submit to the required medical examination in spite of a court order. This ruling offers
a balanced framework that ensures the effectiveness of the judicial system in marriage
proceedings while recognising the delicate nature of privacy issues.

Legal Challenges to Section 9 of the Hindu Marriage Act: Asserting Sexual Autonomy
During the T case, the idea of sexual autonomy dominated the legal conversation. Sareetha vs
T. Venkata Subbaiah23 in front of the High Court of Andhra Pradesh. A strong argument was
made against the constitutionality of Section 9 of the Hindu Marriage Act, 1955 24, which
deals with the restoration of conjugal rights, on the grounds that it violates the basic rights
protected by Article 21 of the Indian Constitution.
In a historic ruling, the Andhra Pradesh High Court ruled that Section 9 was unconstitutional.
This clause, which requires the restoration of marital rights, the court reasoned, is a "savage
and barbarous remedy," infringing upon the right to privacy and human dignity guaranteed by

21
AIR 2003 SC 3450
22
The Hindu Marriage Act, 1955
23
AIR 1983 AP 356
24
The Hindu Marriage Act, 1955

12
Article 21. The court stressed that it is a breach of a woman's dignity, personal liberty, and
right to personal autonomy to force her to cohabit against her will, as required by Section 9.
In contrast, the Delhi High Court upheld Section 9's legality and deviated from the ruling of
the Andhra Pradesh High Court in the case of Harvinder Kaur v. Harmander Singh. The
divergence in court judgements highlights the intricacy pertaining to the legal definitions of
marital rights.
In a case that followed, Saroj Rani v. Sudarshan Kumar Chandha 25, the Supreme Court
disagreed with the Andhra Pradesh High Court and maintained the legality of Section 9. The
highest court stated that, taking into account the significance of reproductive freedom and
physical integrity, Section 9 does not violate a person's right to privacy.
In spite of these confirmations, Section 9 of the Hindu Marriage Act of 1955 26and Section 22
of the The Hindu Marriage Act, 195527 are being challenged in a recent Supreme Court appeal
as unconstitutional. The petitioner argues that these clauses, which support the restoration of
marital rights, infringe upon the basic liberties protected by Article 21 of the Indian
Constitution.
The petitioner challenges the antiquated idea that a woman is her husband's property,
claiming that the court-mandated restoration of marital rights is akin to a "coercive act" by
the State. The petitioner draws a comparison between the United Kingdom and other
countries, arguing that Article 21 should recognise the rights to privacy, dignity, and
autonomy over one's sexual orientation and decision-making. In the UK, this provision was
deleted in 1970.

Conclusion
The right to privacy has been recognised by the supreme court, which has prompted a careful
examination of how it intersects with marital rights. Wives have some rights when they
marry, but these are always subject to the right to privacy of the person. It is crucial to
recognise that the right to privacy is not unqualified; limitations may be placed on it due to
factors like national security, public order, health, and safety.
Examining various case laws makes it clear that, according to court interpretations of Article
21 of the Indian Constitution, the right to privacy is firmly established as a basic right.
Marital rights laws must be analysed from the perspective of the right to privacy. Since
independence, married women's standing has significantly changed, challenging the outdated
idea that they should be treated as obedient property. More and more people nowadays see
marriage as an equal relationship.
Still, several aspects of women's rights are disregarded, most notably the lack of laws that
make marital rape illegal. The right to sue for the recovery of marital rights is not well
defined, which represents the early phases of the right to privacy's development. Future
interpretations could change conventional ideas about marriage, affecting things like spousal
support and inheritance rights.
25
9 AIR 1984 SC 1562
26
The Hindu Marriage Act, 1955
27
The Hindu Marriage Act, 1955

13
The necessity for a specific clause in the Indian Constitution that clearly defines the right to
privacy's extent and allowable limitations is highlighted by the right's inalienable and
indispensable character, which is essential for both mental and physical growth. It is essential
to amend criminal laws, particularly those pertaining to sexual offences. It is important to
have a thorough code that addresses various offences as well as unique trial processes. Justice
requires strict actions against rape in whatever form.
Critical concerns like women's autonomy over their bodies and their involvement in
reproductive decision-making processes are not sufficiently addressed by current regulations.
It is imperative that these issues receive attention in order to protect women from long-
standing suffering. Giving women opportunity and a supportive atmosphere is essential for
their development and empowerment in emerging nations like India, where the proportion of
women in the population is falling.
Essentially, it becomes clear that balancing privacy with family law is important. The way
family law has evolved historically—including Hindu, Muslim, Christian, Parsi, and secular
laws—makes it clear that different rules are required to uphold different religious traditions.
Reassessing the outdated notion of marital privilege, which has its roots in British colonial
law, is necessary, particularly in light of its consequences after a divorce. The goal of
preserving marital peace must be weighed against the need for justice, especially when it
comes to situations of child abuse. This calls for a careful and nuanced revision of pertinent
portions of the Evidence Act.

14