This Article has been written by Mr. Yash Prashar, a 2nd year student of Rizvi Law College, Mumbai.
ABSTRACT:
Believers of Hinduism became flexible with the laws in 1955 when the Hindu Marriage Act was implemented for the first time because the then Government of India felt the compulsion to ameliorate the unnecessary and discriminatory practices within the Hindu religion. A certain number of Zealots tried their best to prevent the changes but their agenda failed miserably. Decades passed and the law saw lots of changes within itself according to the change in society. In the year 2017, the K.S. Puttaswamy judgment changed the dynamics of laws in India with the inclusion of the Right to Privacy as a Fundamental Right under Article 21. Since then, there have been many cases mentioned before different Courts, and the Courts, according to their ideas, interpreted the necessity and under what cause, Privacy can get infringed. Law has become like ‘Luck’ because Law works even for those, who do not believe in it. The Right to Privacy is largely associated with Section 122(3) of the Indian Evidence Act, of 1872 as both point out similar kinds of issues which determine the importance of conversations between married couples and the dignity and privacy of those talks. The invasion of that can lead to several mishaps which is something that nobody wants to happen.
INTRODUCTION:
With the inclusion of The Hindu Marriage Act of 1955 in the legal framework of India, The personal laws of different religions including Hindu, Sikh, Buddhism, and Jain, have gone through humongous changes. However, the acceptance was quick by the believers of these mentioned religions, which was highly important. The Act stated certain rights including the right to separation from the ‘better-half’. The idea of Severance got too many verbal attacks from the fundamentalists but those people were left with no other choice than to accept the fate and live with it. Insertion of Divorce was imperative to lay out equality and human-ness in the Society. Human beings often forget their moral responsibilities and take their relations for granted which might end up creating a big emotional gap between the two. Similar incidents used to happen between some husbands and wives before the enactment of The Hindu Marriage Act, of 1955. However, after the implementation of the Act, the fear of judicial action remains in the minds of the concerned people. It is a different matter if the people live accordingly or remain fearless of legal action, but the law is always there to protect them. As the decades passed, certain issues started getting focus through some cases or personal experiences, and therefore, some Amendments were made to match the evolving times.
The judgment of the K.S. Puttaswamy case is not hidden from anybody since this case revolutionized society and normal within the scope of Society. Right to Privacy was recognized as a Fundamental Right under Article 21 which mainly states the Right to Life and Liberty. Privacy is included in the same domain as Life and Liberty, which speaks for itself and also mentions why it is so important to take ‘Privacy infringement’ seriously. Indian Judicial System has interpreted the Right to Privacy from time to time and provided a specific understanding of the same right.
BODY:
Marriage and Divorce under Hindu Laws:
A tradition that is considered as ‘Sacred union of two souls’, as per Hindu beliefs, went through a lot of reforms during the 50s in the 20th Century. The idea of ‘Marriage’ has been very pure and also a way by which two families come together and start a new bond. The Couple, mainly a man and a woman, tie the knot and promise to each other to live together for the rest of their lives with pure feelings for each other in their hearts. However, as time proceeded, Society started noticing a lot of changes that were too shocking to believe, particularly, the idea of separation in the ‘Sacred’ bond. And if there happens to be something that creates a rift in society, then that issue comes in the eyes of the law and authorities. Similarly, Cruelty, Polygamy, Adultery, and issues like these were noticed and the Indian Parliament in 1955 passed the most important yet the most controversial Act of that era, The Hindu Marriage Act of 1955.
Extremists, along with the Conservative people of the Hindu religion, termed this as a potential way to finish Hindu Family Culture. Time went on and views changed, acceptance was the only option left for those who were neglecting the Act. The law survived and society accepted the reforms wholeheartedly. The Act states certain grounds through which a couple can seek Divorce and move on from each other in life. Lots of diversity is there in the ground mentioned. With the passing of The Hindu Marriage Act, women belonging to Hindu, Sikh, Buddhist, and Jain religions were awarded the right to move to the Court and ask for divorce if they did not want to continue living with their husbands.
Earlier, the marriage was considered as inseparable and there used to be no other option for the husband or the wife to separate their paths. Relationships are sustained on values, respect, conversations, acceptance, adjustments, and the most salient one, trust. Trust is one of the major shields of union which is called Marriage. Generational change always brings something new within itself and like everything else, the ‘Privacy’ factor came into the Marriage as well.
Right to Privacy:
Everybody has the Right to Privacy and this change also contributed to both, strengthening and weakening the inseparable bond. The Law also recognizes the Right to Privacy and that too under the Right to Life and Liberty mentioned in Article 21 of The Constitution of India. Privacy is a part of the broad term ‘Dignity’. Everybody has a life that they want to live without any intervention from anybody else. Right to Privacy provides the satisfaction of protection of information which is something that everybody can relate with.
As humans, we do not want others to know much about our lives and we are becoming more conservative with every passing moment. Privacy in life is the ultimate zone we want to get into and this has its share of pros and cons. However, we certainly can not deny the changing requirements of humankind as doing this would make us old-fashioned. Apart from these arguments, we must acknowledge the fact that Privacy has been coined with the idea of dignity and liberty and these rights are not just for the sake of saying, but these are rightfully mentioned in the Preamble and the Constitution. The judicial authorities have got the absolute power to protect these rights without any ifs and buts. Privacy has gotten lots of attention in recent times since several factors have come into the idea of togetherness. The perspective has changed more so than ever because of the new thoughts that have been accepted by society.
The Apex Court’s judgment in the case of K.S. Puttaswamy defined and acknowledged the necessity of the Right to Privacy, which has been one of the major landmark judgments in the history of the Indian judiciary. The independent status was given to the Right to Privacy under Article 21 of the Constitution and it was directed that the State must ensure that the rights do not get infringed.
Right to Privacy Concerning Hindu Divorce Laws:
The Scope of privacy in a relationship is not limited to just sharing about the activities that have been done throughout the day or the timing of work, rather it has a huge aspect that includes important personal information related to a past life, current work life, health updates, and several other things. The debate is also for the 2nd one. Just a few weeks ago, a case reached the Karnataka High Court in which the wife requested the UIDAI to give the Aadhar Card Information of her husband, which was denied by the concerned authority. The Hon’ble Court upheld the authority’s decision and stated that individual’s rights must be protected and there should not be any privacy infringement. The given judgment protects the rights and privacy of the Aadhar Card’s information of the husband. Most importantly, Section 122(3) of the Indian Evidence Act, of 1872 deals with the privilege of communication between the matrimonial couple which can not be disclosed to protect the privacy of each other.
A similar incident occurred in Delhi, a wife approached the Court to seek divorce on the grounds of Adultery and Cruelty and mentioned that the husband was in an extra-marital relationship with some other woman and they both shared a room in a hotel. The wife pleaded to the Delhi High Court to instruct the Hotel to share the booking information. The court accepted it and rejected the Husband’s claim of privacy of information because the information was necessary to determine if adultery happened or not.
Divorce under the Hindu tradition is still a taboo and is generally circumvented. However, some still opt for it rather than choose to live in an uncomfortable environment. Over the years, Courts in India have witnessed some cases in which one of the two partners, to prove the ground of adultery or cruelty in the Court at the time of Court proceeding, invaded the privacy of the other. In the case of Rayala M. Bhuvaneshwari vs. Nagaphanender Rayala, the Hon’ble Andhra High Court strictly mentioned that the tapping of the wife’s phone by the husband to prove adultery, can not be a justified reason to invade the Privacy rights.
In the case of Surjit Singh Thind vs Kanwaljit Kaur, the appellant approached the Punjab and Haryana High Court to make the wife-respondent medically examined to prove her virginity. The Court found it objectionable and dismissed the appeal stating that the process would cause harm to the dignity of the wife and it is also against the Fundamental Right of Privacy of the wife’s past life.
In the case of Deepti Kapur vs Kunal Julka, the Delhi High Court felt that the installation of a Camera by the husband in the room to record the audio of the personal conversation between a wife and her friend in which it could be heard that the wife making derogatory comments about husband’s family, is an infringement of Right to Privacy. The Hon’ble Court considered that activity as something which can not be said as authentic and the way it was recorded was also against the Fundamental Right.
In the above-mentioned cases, the different Courts at different times recognized the essence of the gravity of the Right to Privacy and also accorded judgments accordingly.
CONCLUSION:
The adoption of new trends and change within society has always been a new normal. When the Hindu Marriage Act of 1955 was passed, the government then, faced a lot of backlash from fanatics all across the Hindu religion, however, the agenda of those protesting, could not succeed and the common Hindus accepted their new laws without creating any chaos. Marriage is a sacred union according to the Hindu Scriptures and there are certain privileges which are given to both. Marriage can not compel the couple to share every fact about themselves with each other. Husband and wife must ensure to maintain their dignity and never cause any threat to that. In this Article, we have concluded that Privacy is among the top Fundamental rights given by the Constitution. Society has evolved but it is still a matter of concern that the same laws get challenged from time to time. The Supreme Court has recognized the value of the same and also safeguarded it whenever needed. Section 122(3) of the Indian Evidence Act categorically explains the meaning of matrimonial communication which is highly important for the topic discussed above. Privacy is a broad term that can not be understood without discussing enormous factors. Subjects in Privacy have still not been laid down clearly and that is why it is up to the Judiciary to determine what act comes under the Right to Privacy and what not. As time proceeds, we may get to see the Parliament coming up with clarity in terms of Privacy. The idea of Privacy in marriage is still new to so many people because they see marriage as the purest bond and it is tough for them to understand the idea of ‘Space’ within such relationships. However, time is changing at a rapid speed and surely the new and upcoming generations will understand the importance of silence and secrecy.
REFERENCES:
Case Laws-
Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018. The Link for the same is herein: https://indiankanoon.org/doc/127517806/
Rayala M. Bhuvaneswari vs Nagaphanender Rayala, AIR 2008 AP 98, 2008 (2) ALD 311, 2008 (1) ALT 613. The Link for the same is herein: https://indiankanoon.org/doc/1058685/
Surjit Singh Thind vs Kanwaljit Kaur, AIR 2003 P H 353. The Link for the same is herein: https://indiankanoon.org/doc/1550109/
Deepti Kapur vs Kunal Julka on 30 June, 2020. The Link for the same is herein: https://indiankanoon.org/doc/170404652/
Articles-
This Article was originally written by The Hindu Bureau and published on The Hindu Website. The link for the same is herein: https://www.thehindu.com/news/cities/Delhi/hc-rejects-husbands-claim-to-right-to-privacy-in-divorce-proceedings/article66835956.ece
This Article was originally written by Diksha Sanyal and published on Supreme Court Observer Website. The link for the same is herein: https://www.scobserver.in/journal/the-uses-and-abuses-of-marital-privacy/
This Article was originally written by Dipendu Das and Shubhangi Kumari and published on The Manupatra Website. The link for the same is herein: https://articles.manupatra.com/article-details/Right-to-Privacy-and-Family-law-Analyzing-the-Section-122-of-the-Evidence-Act-1872-within-the-Constitutional-conundrum
This Article was originally written by Aiyushika Sharma and published on The Legal Service India Website. The link for the same is herein: https://www.legalserviceindia.com/legal/article-10135-infringement-of-right-to-privacy-can-be-a-ground-of-divorce.html#:~:text=The%20right%20to%20privacy%20is%20a%20part%20of%20every%20individual,wants%20to%20communicate%20or%20to
This Article was originally published on The Times of India Website. The link for the same is herein: https://timesofindia.indiatimes.com/city/bengaluru/hc-wife-cant-unilaterally-access-spouses-uid-info/articleshow/105541980.cms
Acts referred-
The Indian Evidence Act, 1872
The Constitution of India, 1950
The Hindu Marriage Act, 1955