"No person can be deprived of his life and personal liberty
As we all know, every individual has the right to life as our Natural right as
well as a fundamental right, and no person can take away this absolute right
which is provided by the Indian constitution in Article 21. Right to life
constitutes that one person has the right that he can live his/her life with all
due respect and dignity.
However, personal liberty means that the person can live his life without
intervention from any other person or he can live his life freely, without fear
of any harm or injury. If any person infringes any other person a fundamental
right then he will be liable for either imprisonment for life or death, even the
state cannot do act action which infringes anybody's right to life.
Article 21 is itself contains various other rights and because of this reason,
article 21 also known as an umbrella right which means it contains other rights
too, and one of the most common rights is the right to privacy. Now if we talk
about the right to privacy in India, there is no right to privacy existed in the
earlier stage or we can say that in the initial stage of independent India.
There is not per se a concept of the right to privacy but now due to changing
circumstances or because of the dynamic environment like the growth of human
mind and development of the country help to the Supreme Court to observe the
need of the right to privacy in the life of every individual because now no one
wants any person to interfere in his personal life as well as in his
professional life and by this, the supreme court held in its very landmark
judgment in K. S Puttasawamy case
that Article 21 also contain right to
privacy and no person has right to infringe this absolute right of any private
Now the question arises:
Is Infringement Of The Right To Privacy Can Be A Ground For Divorce?
If we talk about divorce, in India the law gives various grounds on which one
party can file for divorce if he or she is facing any kind of harassment or
anything by which one party is not able to live with the other, these grounds
include cruelty, adultery, insanity, desertion and many more. If one spouse
harasses or lives in adultery the other spouse can file for divorce and leave
the other spouse.
He/she can separate from a toxic relationship and through a divorce, the parties
do not have to maintain any legal relationship with one another and they are set
free from all the legal implications of marriage. In the Hindu marriage act
1955, divorce is defined under section 13, the aggrieved party may file the
petition against another claiming divorce under this section. In Muslim law the
concept of divorce is completely different from the grounds provided under Hindu
law, in Muslim law, divorce is divided into two parts extra-judicial divorce and
What Is The Right To Privacy?
The right to privacy means, one person has all the right to enjoy his personal
life without the intervention of the state or any other private individual. It
is the right of every person to enjoy his/her life to the full extent and no
person can interfere in his life, without the permission of that person. The
right to privacy is granted by our constitution itself and the branches from
which is right came into existence is Article 14, 19 and 21.
The state cannot interfere in the boundaries provided by the constitution, for
example, the state cannot ask someone for his bank statement state cannot put
surveillance on any person or do any act which consequently infringes the rights
of another person except according to the provision provided by the law of the
land. In India, previously the right to privacy is not considered that much and
various landmark judgments provide that in India there is no concept of the
right to privacy exists. In 2017 India recognize the right to privacy as a
fundamental right, but the world already recognized the right to privacy as an
important right for a human being.
There are various status and international treaties which provide that the world
already recognized that every person has the right to privacy for example:
Article 12 of the Universal Declaration of Human Rights (1948) states that:
"No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence nor to attack upon his honour and reputation. Everyone
has the right to protection of the law against such interference or attacks."
Furthermore, Article 17 of the International Covenant of Civil and Political
Rights (to which India is a party) states:
"No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home and correspondence, nor to unlawful attacks on his honour
It is incumbent on the state to see after the people of the state but it is not
a duty of the state to see what is happening in the life of the people who are
living in the state, the state cannot see what is happening in the life of an
individual or state cannot interfere in the decision taken by any person.
Indian Position Of Right To Privacy
In India, there is no specific provision that talks about the right to privacy
separately, article 21 of the Indian constitution provides the right to privacy
is already provided. Besides there is no right to privacy existed in India till
the landmark judgment of came in 2017.
2017 there is no concept like privacy is exist like in the case of M P sharma
v. Satish sharma
 (1954) the 8 judges bench was constituted, the
allegation was made on the Dalmia group of company for doing malpractices and
misrepresentation of documents in their department in addition to this the court
order for search and seizure in 30 places.
After this Dalmia group of the company filed a petition seeking that in the
process of the investigation, the police is checking their documents which is a
violation of their fundamental right to privacy, here the apex court held that
the state must ensure the safety of the nation and the legislature have this
over-riding power to ensure there is no misconduct or any act done against the
law or violate the law of the land. And our constitution does not provide any
provision regarding the right to privacy so there is no right to privacy
available in the constitution.
In this case, the large bench held that there is no provision regarding the
right to privacy available in the constitution, the decision of this large judge
bank is become a precedent and because of this judgement of the Supreme Court
there at that time no right to privacy was available for Indians.
Similarly, In the case of kharak Singh v. the State of U.P., kharak Singh is
charged with the offence of committing dacoity and for investigation and
collecting evidence against him, the police puts surveillance against him under
the UP Police regulation act 1861.
On this kharak Singh filed a writ petition, to the Supreme Court on this matter
the 6 judges' bench established and stated that the constitution doesn't provide
the right to privacy and there is no express-implied provision provided by the
constitution. But in this context, Justice Subba Rao stated that anybody can
enjoy freedom from anywhere no matter whether he is in his own house or he is
outside somewhere, if someone is observing every act of you there is no freedom
But after some time the circumstance, as well as the mindset of people, change
and the supreme court also started accepting the right to privacy as a
fundamental right for example in the case of PUCL (public union for civil
liberty) V. UOI (1997), the PM Chandra Shekhar claimed that government is
tapping his and other ministers phone which is a clear violation of his
fundamental right to privacy.
On this the PUCL (PEOPLE UNION OF CIVIL LIBERTY) file a writ petition in Supreme
Court in which the court held that: Telephonic conversation is of very
confidential in nature and phone tapping would amount to infringement of the
right to privacy of an individual in addition to this the court held that right
to privacy is granted by the constitution in article 21 itself.
After this judgment there is confusion in society that the right to privacy is a
fundamental right or not because there are some judgements that state that the
right to privacy is a part of the fundamental right under article 21 or in the
two landmark judgments given by the large benches of Supreme Ca out is state
that there is no provision of the right to privacy available in article 21.
In 2017 the landmark judgment has come in the case of Justice K S Puttaswamy
 also known as the Aadhar judgment, here 9 judgments bench
constituted and established that the right to privacy is a fundamental right
provided by the constitution of India. The facts of this case were related to
the Aadhar card.
Aadhar card includes all the information regarding a person like a retina scan,
fingerprint, and photo of the person and afterwards the card provides a unique
12-digit number to that person, and in the year 2017, the government compulsory
Aadhar card for claiming every welfare scheme of the government on this justice
K S Puttaswamy filed a writ petition in supreme court alleged that Aadhar card
contains all the information of the person and ask that if the government is
collecting information on this huge amount what are the measures are taken to
protect all these information because from one click the government can easily
assess every step of the individual which is a violation of the fundamental
right to privacy of the individual.
The supreme court after observing the seriousness of the issue involved in this
case held that for the security and integrity of the nation, it is important for
the state to take action accordingly and the Aadhar card didn't infringe on any
right of the individual it was further added by the 9 judges bench of the
supreme court that our constitution includes the right to privacy in article 21,
there is no need for specific provision provided in the constitution article 21
contain the right to privacy in it and it is a fundamental right of every
citizen to have their right to privacy. After this landmark judgment right to
privacy is granted to every citizen of India and no person can take away this
Ground For Divorce
Divorce means the separation of one spouse from the other or the dissolution of
marriage. In other words, divorce is a remedy available to the party who wants
to get relief from matrimonial duties, there are various grounds are available
according to the religion of a person who wants to get a divorce under section
13 of the Hindu marriage act 1995 as well as there are different grounds
provides under Muslim law for Talaq, divorce can be taken by the party if they
both have mutual consent. There are various grounds which is provided by the
legislature like cruelty, desertion, adultery.
Conversion, unsoundness of mind and so on. The Supreme Court, as well as the
high court of various states, provided these grounds for divorce in their
judgements and various other grounds are also provided by the judgment of the
supreme court like if both spouses living together but one spouse don't talk to
the other spouse or if he/she don't perform any kind of matrimonial relation in
between them or if there is no cohabitation between them it can also be a valid
legal ground for divorce.
If cruelty is taken into consideration then it is divided into two main
categories that are physical cruelty and mental cruelty. Physical cruelty
includes any harm or any physical injury which is given to the spouse by another
Whereas mental cruelty includes various other things or acts of one spouse which
give mental injury to another one, in the case of mental cruelty it is the court
to decide that a particular action done by one party amounts to mental cruelty
or not based on which the divorce can be done not a mere fight between the
spouses or mere arguments between the same amounts to cruelty.
To establishing the act of cruelty there must be an actual mental or physical
damage incurred to the party there should be suffering from because of which
living with the same person is not at all possible.
It is at the discretion of the court to establish according to the case whether
there is cruelty or not. Recently in the case of .... Hon'ble Delhi High Court
held that taking possession of jewellery from the wife for security doesn't
amount to mental cruelty.
In the case of V. Bhagat vs D. Bhagat[
8] the apex court define mental as
well as physical cruelty as follows: (para 13)
Cruelty contemplated both physical and mental. We are concerned herein with the
latter. It is not possible to define 'mental cruelty' exhaustively. As observed
by Lord Reid in Gollins v. Gollins1
: "No one has ever attempted to give a
comprehensive definition of cruelty and I do not intend to try to do so.
Much must depend on the knowledge and intention of the respondent, on the nature
of his (or her) conduct, and the character and physical or mental weaknesses of
the spouses, and probably no general statement is equally applicable in all
cases except the requirement that the party seeking relief must show actual or
probable injury to life, limb or health.
The other ground for divorce is adultery, in India adultery is a crime at first
and it is defined under section 497 of India's penal code, 1860 but in the case
of V. Ragvati v/s Union Of India
 (1988) the supreme court held that
adultery is no more crime and it is a legal ground for divorce, so here now it
is only a ground for divorce and there is no punishment for committing adultery
It is not in the hand of the legislature or in the hand of the government to see
who should sleep with whom but it is in the hand of the government to make
certain changes in respect of taking care of the rights of another spouse and
because of this the supreme court decriminalised the act of adultery but it is
still a valid legal ground for divorce. The other ground for divorce is
desertion, desertion means the abandonment of the entire legal matrimonial
obligation by one spouse.
When one spouse without any reasonable reason or any reasonable cause leaves the
other spouse and all the relationships related to the same the aggrieved spouse
has a remedy available that they can file a petition before the court claiming
divorce from the party. To prove desertion as a ground for divorce there should
be a presence of factum of separation and animus deserendi, which means there
should be actual separation and intention to abandon the spouse and all the
responsibility related to the same.
Desertion is actually of two types, for example, actual desertion and
constructive desertion, actual desertion is when the spouse leaves the house and
started living separately from the other spouse without giving any reasonable
excuse and leave his all matrimonial obligation related to the marriage, the
other type of desertion is when both spouses stay within the same house but one
of them is not performing his/her duties or obligation in respect of the
marriage. In the case of Bipin Chander Jaisinghbhai Shah vs Prabhawati
it was held that
"For the offence of desertion, so far as the deserting spouse is concerned, two
essential conditions must be there., namely, (1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end (animus desired).
Similarly, two elements are essential so far as the deserted spouse is
concerned: (1) the absence of consent, and (2) the absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid."
Other grounds for divorce like conversion and insanity, here conversion means if
one spouse converts the religion voluntarily without any force by going through
some formal ceremony or by any mode convert his/her religion the other spouse
has a choice if he/she wants to live with the other spouse or not if the spouse
doesn't want to continue with the marriage they can file a petition for divorce
on the ground of conversion.
Whereas, insanity is also a ground for divorce; insanity means mental illness or
mental disorder. If one of the spouses is dealing with any mental disorder or
any kind of illness it is at the discretion of the other spouse if he/she wants
to continue with the marriage or not because the law cannot force someone to
live with the person who is not able to maintain matrimonial responsibilities,
but there is one condition that the mental disorder is of such an extent that it
is being impossible for the spouse to live with.
Infringement Of The Right To Privacy Can Be A Ground For Divorce
Marriage is a responsibility for the parties who are in that relationship, it is
an obligation for both husband and wife to share things but the husband or wife
doesn't need to share all of his/her secrets, thoughts, dreams and fears with
the partner it is totally on the discretion on the spouse that if they want to
tell his/her thoughts to another one.
The right to privacy is a fundamental right provided by the constitution in
article 21, available to the person even after marriage. A husband cannot force
his wife to tell him everything which she doesn't want to and at the same time,
the wife didn't force her husband to not do a certain act.
The right to privacy plays an important role in marriage because everyone has
the right to do what he wants to do even if he has the right to be alone for
some time. Law cannot force any person to provide such information which
consequently involves information related to them, every married woman, as well
as every married man, has the right to privacy and another spouse cannot
interfere or infringe the Fundamental right to privacy.
Now the question arises that what is a limitation or how the court observes and
deals with the right to privacy within the boundary of marriage, as in the case
of Rayala M. Bhuvaneswari vs Nagaphanender Rayala
 the question was
raised that whether the husband can tap the phone of his wife to collect
evidence against her the court observes that:
"Certain astonishing facts have come to light during the hearing of this
revision. One of the facts relates to the purity of the relationship between the
husband and wife. Without the knowledge of the wife, the husband was recording
her conversation on the telephone which she was making with her friends and
parents in India. If the husband is of such a nature and has no faith in the
wife even in her conversations with her parents, then the institution of
marriage itself becomes redundant.
There should be some trust between husband and wife and in any case, in my view,
the right of privacy of the wife is infringed by her husband by recording her
conversation on the telephone with others and if such a right is violated, which
is fundamental, can such husband, who has resorted to illegal means, which are
not only unconstitutional but also immoral, later on, rely on the evidence
gathered by him by such means. It must not be permitted."
In the case of Sharda vs Dharmpal
 the appeal has been filed by the
appellant that the order given by the subordinate court to undergo with medical
examination is a violation of his right to privacy, the main question arises
whether in a divorce proceeding the medical examination can be taken without the
consent of that person or is that amounts to infringement of his right to
privacy as granted by the constitution of India.
The court held that to check the person is not mentally fit to live with of if
he/she is of unsound mind medical examination is necessary so for matrimonial
litigation the court can direct the person to undergo with the medical
examination and this will not violate the person's right to privacy.
In the case of Surjit Singh Thind vs Kanwaljit Kaur
, the application has
been filed by the husband claiming to get her wife to undergo a medical
examination to check her virginity. The facts of the case are, the wife files a
petition for divorce on the ground that her husband is impotent and her marriage
So to prove that the marriage is not consummated the husband applied to the
court to check her virginity and to prove that he is not impotent, here the
court while rejecting the application of the husband court held that medical
examination of the virginity of the wife is a violation of her fundamental right
to privacy as well as it harms her dignity. In addition to this judgment the
court provides 3 principles are as follows:
- a matrimonial Court has the power to order a person to undergo a medical
- passing of such an order by the Court would not violate the right to
personal liberty under Article 21 of the Constitution; and
- However, the Court should exercise such a power if the applicant has a
strong prima facie case and there is sufficient material before the Court.
If despite the order of the Court, the respondent refuses to submit himself
to medical examination, the Court will be entitled to draw an adverse
inference against him.
In this case, the court makes the following observation and stated three main
principles which are important for dealing with matrimonial cases. in
matrimonial cases, there is a need to establish a balance between the right to
privacy and the right to a fair trial it is a well-defined principle and a
fundamental right to get justice and to have a fair trial. So what happens when
there is a conflict between the right to privacy and to get a fair trial, what
should prevail because they both are the fundamental right which is available to
every citizen of India?
In the recent case of Deepti Kapur vs Kunal Julka
, the facts of this
case are the husband filed a petition for divorce on the ground of cruelty and
to prove the same he install the camera in her wife's room where he recorded all
the conversations she made with her friend and her parents.
Now the wife claims that he violated her right to privacy whereas the husband
claims that to prove the cruelty on the part of the wife it is necessary to
prove cruelty, he is collecting evidence to prove himself and collecting fair
evidence is a part of having a fair trial, the Hon'ble Delhi High Court make
their observation on this matter as and held that:
"Merely because rules of evidence favour a liberal approach for admitting
evidence in court in aid of dispensation of justice, this should not be taken as
approval for everyone to adopt any illegal means to collect evidence, especially
in relationships of confidence such as marriage. If the right to adduce evidence
collected by surreptitious means in a marital or family relationship is
available without any qualification or consequences, it could potentially create
havoc in people's personal and family lives and thereby in the society at large"
The right to privacy is a part of every individual apart from the marital
status, husband, as well as wife both, have the right to privacy as their
fundamental right The person has the right to life and this right includes the
right to privacy, it is at the discretion of the person that if he wants to
communicate or to give information about himself or not, the state or any
private individual cannot force him to provide any information which he didn't
want to give.
For the safety and security of the nation-state can use the personal data of the
individual and check accordingly, but in the name of terrorism, the state cannot
use that data for any other purposes. Even a state can use any personal data for
the safety of the nation because article 21 states that every individual has the
right to life and personal liberty except according to the process provided by
- Protection of Life and Personal Liberty, Constitution of India
- Article 12, Universal Declaration of Human Rights
- Article 17, International Covenant of Civil and Political Rights
- 1954 AIR 300, 1954 SCR 1077
- 1963 AIR 1295, 1964 SCR (1) 332
- (1997) 1 SCC 301
- (2017) 10 SCC 1
- 1994 SCC (1) 337
- 1989 AIR 1933
- 1957 AIR 176
- AIR 2008 AP 98
- (2003) 4 SCC 493
- AIR 2003 P H 353