Introduction the Holy Matrimony and Right to Privacy
The right to privacy has an important role to play in the area of matrimonial life. In this respect, there is a need to strike a balance between the individual’s decision to marry and procreate children and the permissible limits in the society as an institution.
The approach by the government of protecting the matrimonial tie by not including marital rape as a crime in a breach of women’s right to life. Law of the land must give equal sexual rights and make marital rape crime as it violates the women’s bodily integrity and privacy as her will to indulge in sexual activity matters.
Laws related to Right to Marry
Family is the lowest unit of society and for the existence of society, the existence of a family is a must. The free consent of the parties is essential for entering into a marriage relationship. Article 16 of the Universal Declaration of Human Rights, 1948 recognizes the right to marry.
Similarly Article 23 of the International Covenant on Civil and Political Rights, 1966 provides for the protection of family by society and the state. It also recognizes the equality of the rights of the spouses. Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 states:
“Men and woman of marriageable age have the right to marry and
to found a family, according to the national laws governing the
exercise of this right”.
Female’s Right to Privacy in a Marriage
The right to respect for privacy mirrors the liberal concept of the individual’s freedom as a self-governing being as long as her actions do not interfere with the rights and freedoms of others. The right to privacy is the right to individual autonomy that is violated when states interfere with, penalize, or prohibit actions that essentially only concern the individual, such as not wearing safety equipment at work or committing suicide.
The right to privacy encompasses the right to protect a person’s intimacy, identity, name, gender, honor, dignity, appearance, feelings, and sexual orientation. The right to privacy may be limited in the interests of others, under specific conditions, provided that the interference is not arbitrary or unlawful. People cannot be forced to change their appearance or name, for instance, nor can they be prohibited from changing their name or sex; however, in the interests of the rights of others.
The right to privacy extends to the home, the family, and correspondence. The term family relates, for example, to blood ties, economic ties, marriage, and adoption. The right to respect for the privacy of the home has been interpreted to include a place of business.
International Concepts of Privacy in Matrimony Laws
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 honor and reputation. Everyone has the right to protection of the law against such interference or attacks.”
Article 17 of International Covenant of Civil and Political Rights states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, and correspondence, nor to unlawful attacks on his honor and reputation”
Legal Analysis on the subject of Marriage and Privacy
Marriage is a bond of love and trust. Thus the court so far has been protecting the realms of privacy within marriage institution but some aspects of female rights are still neglected. India still has not criminalized marital rape and this violation of her sexual sovereignty continues. as mentioned under-
In Rajalakshmi M. Bhuvaneshwari v. Nagaphomendar Rayala, the husband demanded the phone recordings of his wife with another man in order to prove her illegal relationship with that man but the wife denied. The court held that neither the husband can demand such a thing nor can he tap her phone as it is violative of her right to privacy and marriage does not give unreasonable privilege to do such an act.
In Sharda v Dharmpal, the court opined that right to privacy has some restrictions and hence in this divorce proceedings, the court stated that it is necessary to submit reports of medical treatment if the same is substantive to the case and it is not violative to the right to privacy of the spouse under Article 21.
In Surjit Singh Thind v. Kanwaljit Kaur, the husband wanted to present the virginity test of his wife as she was demanding divorce on the ground of him being impotent. The court rejected the demand of the husband and opined that asking a woman to give her virginity test is violative to right to life with dignity and also her privacy under Article 21 of the Indian Constitution.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at firstname.lastname@example.org.
Cases argued by Aditya Pratap can be viewed here.