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Infringement of Right to Privacy can be a Ground of Divorce

"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[1]. 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 individual.

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 judicial divorce.

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[2] (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[3] (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 and reputation"

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[4] (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[5]., 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 at all.

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[6]), 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 V. UOI[7] 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 fundamental right.

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 spouse.

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 [9] (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 in India.

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[10] 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[11] 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."[12]

In the case of Sharda vs Dharmpal[13] 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 is consummated.

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:
  1. a matrimonial Court has the power to order a person to undergo a medical test
  2. passing of such an order by the Court would not violate the right to personal liberty under Article 21 of the Constitution; and
  3. 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,[14] 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 law.

  1. Protection of Life and Personal Liberty, Constitution of India
  2. Article 12, Universal Declaration of Human Rights
  3. Article 17, International Covenant of Civil and Political Rights
  4. 1954 AIR 300, 1954 SCR 1077
  5. 1963 AIR 1295, 1964 SCR (1) 332
  6. (1997) 1 SCC 301
  7. (2017) 10 SCC 1
  8. 1994 SCC (1) 337
  9. 1989 AIR 1933
  10. 1957 AIR 176
  11. AIR 2008 AP 98
  12. (2003) 4 SCC 493
  13. AIR 2003 P H 353

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