RIGHT TO PRIVACY WITH RESPECT TO PHONE RECORDINGS IN

MATRIMONIAL CASES – A STUDY

INTRODUCTION

What does the term "privilege" entail?

The term "privilege" refers to the legal protection one has against disclosing certain
information that is already in his possession. Privilege is a potent weapon in most legal
systems across the globe, and if granted, it becomes the claimant's basic legal right.

Communications inside a protected relationship are shielded from disclosure in a legal

procedure by virtue of a privilege. Examples of such interactions include those between a
doctor and patient, a spouse and partner, and a client and attorney for the purpose of gaining
legal counsel. Under some conditions, it is forbidden to divulge the content of
communications between these parties.

Therefore, it concerns conversations between two people that are meant to be kept secret for
various reasons; the law cannot force a person to whom one has confided confidential
information to reveal it. The issue with privileges, however, is that they may sometimes
completely and sometimes partly exclude the statement from consideration as evidence.
Courts cannot use confidential communications or documents as evidence after the privilege
has been established.

Evidence may be excluded on the grounds that it would violate a policy of protecting and
preserving particular key connections and the principles underlying those ties via a privilege
or professional secret. Confidential communications between parties may be shielded from
disclosure or use in court by virtue of a privilege or professional secret. The rationale
underpinning this privilege, which might lead to the rejection of highly probative material,
may be at odds with the aim of judicial processes to correctly settle disputes.1

1 Trammel v. United States, 445 U.S. 40, 50-51 (1980)

Wigmore, who takes a utilitarian perspective of privileges, thinks that special treatment
should only be given when it serves a significant connection. As a result, he defined four
conditions under which a relational privilege2 may be acknowledged:

(1) There must have been an agreement at the outset that the information would not be
shared.
(2) This aspect of secrecy must be crucial to the continued and mutually satisfying
functioning of the relationship between the parties.
(3) Thirdly, the relationship must be one that society as a whole agrees should be actively
encouraged.
(4) When determining whether or not to disclose communications for the purpose of
proper litigation disposal, the harm that would result to the relationship must
outweigh any potential benefits.

This utilitarian approach poses empirical questions 3 because it takes into account both the
value to society and the usefulness of the relationship that the privilege is meant to safeguard.

I. Is there an initial trust that private information will be kept between parties?
II. Is privacy crucial to the success of the partnership?
III. There are two sorts of privilege in communication:
(i) absolute advantage, and (ii) qualified privilege.

The following are areas in which absolute privilege applies:

Absolute Privilege
Statements made in particular circumstances or locations are absolutely privileged. Complete
protection may be found in absolute privilege. Even if such remarks are made with malice, as
in the instance of statements made by legislators inside the House, it is a defence.

In Dechant v. Stevens4, it was laid out that the purpose of absolute privilege is as follows:

2 J. Wigmore , Evidence 627 (J. McNaughten rev. ed. 1961).

3 Daniel S Shuman, ― The Origins of the Physician Patient Privilege and Professional Secret‖ 39(2) SMU Law
Review 664(1985).
4 2001 ABCA 39
 1. First, in situations when the protection of free expression is most crucial, the
government has been willing to grant absolute privilege on the basis of apparent
public policy considerations. "It is fundamental to the goals of justice that all people
participating in judicial processes should have freedom of expression in the execution
of public obligations or in the pursuit of rights, without fear of repercussions.
2. The goal of the legislation is not to shield those who are malicious, but to safeguard
those who are acting in good faith while carrying out a public duty or defending their
legal rights from being harassed by others who would falsely accuse them of bad
motives.
3. Since protecting honest parties from frivolous lawsuits is of paramount importance,
the law will not put them in harm's way only so that a bad actor might collect
damages.
4. The real idea of absolute immunity is that it is not in the public's best interest to
question whether or not some statements are malevolent. To be clear, this does not
mean that people have the right to be malicious; rather, it means that people in certain
positions, such as judges, jurors, attorneys, and litigants, should have complete
freedom and independence, and that in order to protect this freedom and autonomy,
civil tribunals should not be able to investigate statements made by these individuals
based on the mere allegation of malice.
5. It is not a desire to prevent actions from being brought in cases where they ought to be
maintained, but rather the fear that if the rule were otherwise, numerous actions would
be brought against persons who were acting honestly in good faith.
6. The rule exists not because the malicious conduct of such persons ought not to be
actionable, but rather because, if their conduct were actionable, actions would be
brought against them in cases in which they had not spoken falsely and maliciously.

Qualified Privileges
In order for a claim to be protected under qualified privilege, the declarant must show that he
is acting in his own self-interest or fulfilling a responsibility to society, the law, or morality.
Nonetheless, it is crucial that the remark be delivered without malice. It's conditional on the
following, so don't take it at face value:

- protection of interests made in good faith

- made in the line of duty
 - created for the greater benefit
- Reports on Public Interest Proceedings in Parliament, Court, or Other Settings
- Statements should be made in good faith

Spousal Communication Privileges

In order to maintain peace in the marriage, couples are encouraged to have open lines of
communication with one another. That means that any private information shared between
partners is protected by the marriage privilege and neither partner may force the other to
reveal it. To be eligible for this benefit, you must provide evidence of the following:

1. It was made while the marriage was still legally binding.

2. It was made with the intention of sending a message to the other.
3. It was made in private.

The Indian Evidence Act, specifically Section 122, provides legal protection for spousal
privilege in the country. Except in suits between married persons or proceedings in which one
married person is prosecuted for any crime committed against the other, section 122 states
that no person who is or was married shall be compelled to disclose any communication
made to him during marriage by any person to whom he was or is married; nor shall he be
permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents.

Spousal immunity arose from the need to protect the marital institution. Evidence is usually
allowed at trial as long as it is relevant to the case, but this is an exception to that rule. The
primary goal is to encourage honest and open dialogue between partners in order to fortify
the marriage, and the information disclosed by the partners should not be used to fuel a fight.

The concept of a spouse's right to privacy in their own home has its roots in the English
Common Law and is recognised in India as well. The English Evidence Amendment Act of
1853 explicitly enshrined this idea. It is a well-established concept under the English
Evidence Amendment Act that neither spouse may be compelled to reveal any private
communications with the other throughout the course of the marriage.
This privilege is now codified in state and federal law in the United States. The Supreme
Court of the United States declared in the twentieth century that the benefits to the
administration of justice were outweighed by the fact that the institution was deemed so
crucial to the maintenance of marriage.5

When the British arrived in India, they brought with them the common law idea of privileges,
which was later codified into the Indian Evidence Act of 1872. S.J. Chaudhary v. State6,
decided by the Supreme Court, made the following observation: - So much of the happiness
of human life may fairly be said to depend on the inviolability of domestic confidence that
the alarm and unhappiness occasioned to society by invading its sanctity and compelling the
public disclosure of confidential communications between husband and wife would be a far
greater evil than the disadvantage which may occasionally arise from the loss light which
such revelations might cause.

The Supreme Court of the United States, in Trammel v. United States7, explains where the
concept of spousal privilege came from: Medieval jurisprudence drew on two principles to
develop the concept of spousal testimony privilege: first, the rule that an accused was not
permitted to testify in his own behalf because of his interest in the proceeding; and second,
the concept that husband and wife were one, and that since the woman had no recognised
separate legal existence, the husband was that one. Those two now-defunct concepts meant
that any statements made by the defendant-wife husband's were likewise inadmissible in
court.

The benefits of being a spouse are as follows:

a) Spousal immunity, the principle that a spouse cannot be forced to testify against their
partner in a criminal prosecution. The rationale for this provision is to prevent
divorces that result from one spouse testifying against the other in criminal
proceedings.
b) Communications between spouses during marriage are protected under the
"confidential marital communications privilege," which states that one spouse
cannot be forced to reveal information shared during marriage. The goal of this

5 Wolfle v. United States, 291 U.S. 7, 78 L. Ed. 617 (1934)

6 1985 Crile 622
7 445 U.S. 40
 guideline is to help married couples feel safe enough to share intimate details about
their lives with one another.

Limitations of Spousal Privilege

Spousal privilege is subject to the following:

a) First of all, there are limits to marital privilege. In the first place, it doesn't apply if
one partner has been the victim of criminal activity on the part of the other.
b) It is solely relevant to private conversations between spouses.
c) Statements spoken in public or within the hearing range of a third party are not often
shielded from liability.
d) Only communications between partners are protected by this privilege.
e) If one spouse saw the other doing an illegal conduct, then that spouse does not have
the protection of the privilege.

Spousal privilege, however, does not apply solely during the time a marriage is legally
recognised. The institution survives the end of a marriage. Therefore, if one spouse discloses
sensitive information to the other during the marriage, the information will continue to be
protected even if the couple later divorces.

European Convention on Human Rights provision

SIGNIFICANCE OF STUDY:

Law is a method to regulate human conduct in the society. It helps to develop

harmonious relationship between the individuals. It is therefore important for it to coordinate
with the diverging and conflicting interests of the individuals with that of the society. The
State formulates certain principles or rules of conduct to be followed by the people so that
peace and order are maintained in the society. These rules of conduct are known as laws. Law
is dynamic. It changes with time to fit into the requirements of the society at any given point
of time.

In the present scenario, with the advent of technology and smartphones, it becomes
the need of the hour to adapt and change the law in line with the development of technology.
This need to change has been very well recognized by the courts as well as the legislature in
India. These types of changes are also essential while dealing with matrimonial cases.

There have been instances where the spouses have recorded the conversations
between them and presented them to the Court in matrimonial cases as evidence to prove
their case. The present thesis emphasizes such production of phone recordings between the
husband and wife as evidence in court. It emphasizes the necessity of producing such
evidence in light of the “right to privacy” guaranteed under the Constitution of India and the
“privileged communication” under the Indian Evidence Act, 1872 being in force.

Right to privacy may be defined as a situation in which an individual is free and can
do anything which a person wishes to do within his or her own space and by not being
interrupted or disturbed by any other person. It includes the right of a person to refrain or
prevent others from using his personal information that he feels might cause damage to his
reputation or his family’s reputation. Article 21 of the Constitution of India which provides
for right to life and personal liberty includes within itself the “right to privacy” which is
declared as a fundamental right in the case of K.S. Puttaswamy vs. Union of India. Though it
is a fundamental right, it is not absolute. The Constitution of India also states some
exceptions wherein the citizen’s right to privacy is waived off, namely, at the time of
emergencies.
The United Nations also guarantees right to privacy under Article 12 of the United
Nations Declaration of Human Rights (UDHR), 1948. It states - “No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon
his honor and reputation. Everyone has the right to the protection of the law against such
interference or attacks.”8
Article 21 of the Constitution of the India states thus- “No person shall be deprived of
his life or personal liberty except according to procedure established by law.”9
Marriage is an institution that has given some inherent rights to each partner but there
are situations when one spouse tries to encroach upon the other spouse’s privacy and then
courts have a duty to look into the matter to check how far is this encroachment valid.

8 Right to Privacy - Human Rights Media

9 lawctopus.com
 Privileged communication may be defined as the communication between two
persons that is accorded the privilege of private or secret communication. Such
communication is protected from being disclosed to anyone including the Court of law. In
India, privileged communication is recognized from section 122 to 129 of the Indian
Evidence Act, 1872.

STATEMENT OF PROBLEM

In matrimonial cases, the frequency of producing recordings of conversations between

spouses, particularly in cases of mental cruelty has increased as a result of development and
advancement in technology. Whether such evidence is admissible under Section 122 of the
Indian Evidence Act or is it a violation of Article 21 of the Constitution of India is to be
examined.

REVIEW OF LITERATURE
There can be no study done without first being acquainted with the existing literature on the
topic in the shape of books, essays, etc. So, the researcher has read a wide range of materials,
including books, papers, journals, reports, related legislation, and case laws, on different
types of privileged communications in order to get up to speed and understand about the
growing concerns on the topic. The following works were reviewed that contributed
significantly to the foregoing discussion:

Law of Evidence by Dr. Avtar Singh10

The author asserts that privileged communications are those that a witness cannot be forced
to divulge and those that he cannot disclose even if he is ready to do so. The author
distinguishes between two forms of privileged communication: those that may be divulged
and those that must remain secret. In addition, the author covers the breadth of Indian law on
the topic of privileged communications, such as marital privileges, attorney-client privileges,
government communications, etc., making it a suitable book for the study subject.

10 Dr.Avtar Singh, Law of Evidence (Central Law Publications, Lucknow, 2016)

The Secrets of Law by – Martha Umphray et al11
In this book, we delve into the murky world of legal espionage and the secretive practises that
are governed by the law. It examines the inherent opaqueness of legal and governing
procedures, looking at how the law creates secluded areas, how secrecy relates to the
administration of justice, and how we come to terms with the obscurity of legal procedures.
The first half of the book delves into the function of secrecy in modern political and legal
practises, analysing topics such as the need for openness in democratic procedures under the
Bush administration, the public justice principle in the English response to the war on terror,
and the evidentiary law of spousal privilege. The book's second half delves into literary,
cinematic, and judicial depictions of legal secrets, illuminating the ways in which information
regarding specific cases and crimes is frequently encoded or otherwise inaccessible. Those
who care about openness must learn to interpret ambiguity, decipher the unreadable, and
weigh the benefits and risks of the unknown.

Journal Articles
What Role Does the Marital Communications Privilege Play in the Age of Social
Media? by John Stuart Mill12
In this essay, the author examines the question of who has the upper hand in a conversation
when it comes to social media. In addition to this, the book delves deeply into the evolution
of the institution of marriage, which brings up the topic of privileged communication between
spouses. Most individuals who regularly use the internet say that technology has helped their
relationships in some way, and many couples now regularly communicate through social
media. The marital privilege has existed for a very long time, and back when it was
established, verbal exchanges were the norm. Given that social media platforms have only
been present since the 1970s, the legal system has not yet reached a consensus on whether
marital privilege extends to conversations disclosed via social media platforms, particularly
through private messaging. As a result, the author investigates how current advances in
communication may be applied to the special kind of talking that goes on between married
couples.

Case laws

11 Martha Umphray, The Secrets of Law, (Stanford Law Books, California, 2012)
12 John Marshall, ―Digital Love: Where does the Marital Communications privilege Fit in the World of Social
Media Communications‖ 39(2) The John Marshall Journal of Information Technology & Privacy Law, 105-
107(2016)
The review of the current literature available on this topic shows that in a few matrimonial
cases the courts have accepted the phone recordings presented as evidence, such as Preeti
Jain v. Kunal Jain (2016 SCC Online Raj 2838) and Anvar P.V. vs. P.K. Basheer ((2014) 10
SCC 473), but there is still a lot of debate and confusion regarding their admissibility. The
debate is that such recordings infringe the right to privacy of the other spouse and are against
Section 122 of the Indian Evidence Act, 1872.

SCOPE OF THE STUDY

The present study examines the production of such recorded messages before the
courts as evidence, given the privileged communication as provided under Section 122 of the
Indian Evidence Act and also the right to privacy guaranteed under article 21 of the
Constitution of India.

OBJECTIVES OF THE STUDY

The objective of this study is:
1. To examine the admissibility of phone recordings in matrimonial cases in the current
age of digitalization,
2. To evaluate the need to be attached to such evidence depending upon the facts and
circumstances of the case.
3. To assess the care to be taken by the courts while considering such evidence so that
justice is done to both spouses.

RESEARCH QUESTIONS
1. In matrimonial matters, whether there is any evidentiary value for phone recordings?
2. If yes, will it infringe the right to privacy of the other spouse?
3. How are phone recordings between the spouses treated as evidence vis-à-vis the right
to privacy?
4. How would the concept of privileged communication play its role while considering
the recorded conversations between spouses as evidence?

HYPOTHESIS
Phone recordings in matrimonial matters do not infringe the right to privacy and do
not violate section 122 of the Indian Evidence Act.
METHODOLOGY
This theory is based on doctrinal method of research. The data is obtained from
precedents, articles and laws in force that are available offline and online from various
websites that offer legal knowledge.

CHAPTERIZATION:
1. Introduction

● Significance of Study

● Review of Literature

● Scope of the Study

● Objectives of Study

● Hypothesis

● Methodology

● Chapterization

2. Right to privacy: Evolution & Recognition in modern times

3. Matrimonial relations & Right to Privacy : Recent Developments & Legal implications
4. Phone Recordings in Matrimonial matters – Legal dynamics

● Privileged Communication

5. Conclusion :

● Summary of the study

● Findings of the study

● Conclusions and suggestions

6. Bibliography
 CHAPTER II
RIGHT TO PRIVACY: EVOLUTION & RECOGNITION IN MORDEN TIMES

Experts in the law, such as Arthur Miller, have said that a precise definition of privacy does
not exist since it always changes. Aristotle and William Blackstone are only two examples of
the many legal thinkers who draw a line between personal transgressions and broader societal
problems. A private wrong is one committed against oneself, whereas a public wrong is one
committed against the community at large. The Greeks were the first to understand the
connection between citizens and their government, and they provided a broad outline of how
this connection takes form. According to Black's Law Dictionary, one's right to privacy is the
"right to be allowed alone; right of a person to be free from undue publicity; and right to exist
without unwarranted intrusion by the public in areas with which the public is not necessarily
interested." The right to privacy is an essential part of human dignity and should never be
compromised. The right to privacy is not novel but must be recognised by the law since it is
as ancient as the common law itself. Because of how intrinsically linked it is to freedom and
human worth, it must be recognised as a basic human right. Without the protection of
personal privacy, the concept of freedom in a democratic democracy becomes undefined.
"Personal liberty makes for the value of human individual," Justice Krishna Iyer once said.
Therefore, privacy is intrinsic to concepts like respect and freedom.

Inherent in every person is the prerogative to personal seclusion. The right to privacy is a
fundamental human right protected by established norms of Western law. Different historical
conceptions of privacy have been presented by three groups of famous jurists, contributing to
the ambiguity surrounding the concept of privacy. Douglas and Blackmun were among the
judges who saw privacy as a means of safeguarding citizens' liberties, while Black and
Rehnquist were among those who refused to acknowledge as basic some unacknowledged
substantive due process rights. Justice White and Justice Harlan were part of a third set of
justices who believed that protecting personal privacy was essential to keeping the
government out of families' lives. It is undeniable, however, that privacy is a legitimate
human right in its own right.

The relevance of the right to privacy may also be seen from the perspective that it is a
fundamental human right. The term "natural rights" refers to those rights bestowed by God,
which are hence seen as superior to any human-created rights. Dr. W. Friedmann says that the
history of natural law may be summed up by the strive for and ultimate inability to achieve
perfect fairness. The "right to privacy" originated with advocates of the doctrine of natural
rights, which social contract theorists like John Locke said were inviolable and inalienable in
their work, Two Treatises on Civil Government. Therefore, natural law ideas provide the
foundation for the concept of privacy.13

INDIA'S DEVELOPMENT OF THE RIGHT TO PRIVACY

Since it is not guaranteed by law under the Indian Constitution, the Right to Privacy has been
the subject of heated debate there. Right to life was deemed crucial by the Indian
Constitution's framers. Article 21 of the Indian Constitution grants all citizens of India the
right to life, and the Supreme Court of India has interpreted this provision in a number of
different ways. As society has progressed, the right to life has been given a broader scope,
and now includes the right to a speedy trial, the right to shelter, and a host of other
protections. The Supreme Court of India has consistently used a broad interpretation of "life"
and "liberty" in the Indian Constitution, indicating that these terms do not refer only to the
absence of physical constraint. Both the Fifth and Fourteenth Amendments to the US
Constitution are consistent with this idea.

The Preamble to India's Constitution protects its inhabitants' right to freedom of opinion,
speech, religion, faith, and worship. This fact alone demonstrates how central and broad the
concept of "liberty" was to the framers of the Indian Constitution. Article 21 of the Indian

13 Jana Kalyan Das, Philosophical foundations of The Right to Privacy, http://www.livelaw.in/philosophical-

foundations-right-to-privacy/ (last seen Nov 23, 2022 at 7:55 p.m.)
Constitution states that every citizen has the right to "personal liberty," and a careful reading
of this provision reveals that protecting this right is necessary for every citizen to live a life
worthy of respect. This, in turn, necessitates the formal recognition of the Right to privacy.
Time and time again, the Indian Supreme Court has stressed the need of giving a broad
meaning of the word "personal liberty" in Article 21 of the Indian Constitution. According to
a Supreme Court ruling, "the word personal liberty is of largest amplitude including a number
of rights."14

In the case of Kharak Singh v. Sate of U.P. AIR 1963 SC 1295, Justice Subbarao, writing for
the minority, argued that the lack of an explicit provision for a right to privacy in the
Constitution of India did not exclude the need to acknowledge such a right. The petitioner in
the above instance was placed under surveillance due to his unlawful behaviour. The purpose
of the surveillance was to keep an eye on the petitioners' home, and it included sneaking
about their property at night. He argued that the U.P. Police Regulation's rules on secret and
domiciliary visits were an invasion of his privacy. However, the Court did not recognise the
right to privacy on the grounds that no such right is explicitly recognised by the Indian
Constitution. The Supreme Court made a similar point in M.P. Sharma v. Satish Chandra
(AIR 1954 SC 300). These ideas are at odds with those of Justice Felix Frankfurter of the
United States Supreme Court, who held that citizens' right to be left alone is fundamental to a
free society and must be safeguarded against the excessive interference of the police.

An individual's right to privacy must be upheld so long as doing so does not have unintended
negative consequences for the public at large. The primary and most important purpose of
legislation is to preserve social order. In order to guarantee fundamental rights, it would be
necessary to disregard the standards established to preserve social order. Privacy is certainly
not an absolute right, but with the proliferation of information technologies and the abuse of
power by government officials, acknowledgement of such a right is vital. As such, another
Supreme Court ruling in this area bears mentioning: The Supreme Court of India made the
following statement in Govind v. State of M.P., 1975 SCC 148:

A privilege not specifically given by the Constitution cannot be solely relied upon by a court.
A decision like that by the Court would cause the general public to doubt the integrity of the
legal system.
14 Maneka Gandhi v. Union of India AIR 1978 SC 597 (Supreme Court of India).
In order to pass the "state interest test," the right to privacy must not be absolute.
Inasmuch as only criminals who are suspected of committing a crime are placed under
surveillance, it cannot be stated that monitoring violates either the right to life or the right to
privacy. This measure is essential for avoiding more criminal activity.

The underlying concept in that decision, however, is that the Court did not wholly reject the
existence of a right to privacy, as it had in certain earlier judgments. The Supreme Court
recognised the right to privacy after a rise in privacy invasion cases. From the earliest days of
common law, people have said that the law should shield them from harm, both physical and
financial. The major issue facing the Court of Justice, however, was striking a balance
between this right, public order, and other constitutionally protected rights. In 1995, the
Supreme Court heard arguments in the Auto Shanker case15 on whether inmates should be
allowed to publish their autobiographies. There were little references in his narrative to any
kind of rapport between him and the corrections staff. However, the Chief Inspector General
said that everything in the autobiography is fraudulent and so cannot be published.

The two primary questions the Court had to decide were:

- Is it a violation of another person's right to privacy if someone writes about them

without their permission?
- Is it possible for a government official (the chief inspector general in this instance) to
use the fact that a prisoner has no recourse to the law in order to stop the prisoner
from releasing his autobiography?

In its decision in the aforementioned case, the Supreme Court established the right to privacy
as a separate right protected by tort law and noted that remedies exist for violations of this
right. The court ruled that the petitioner's First Amendment rights would be violated if the
inmate were stopped from publishing his memoirs. Therefore, the prison administration
cannot stop the inmate from publicising it. When discussing Article 21 of the Indian
Constitution, Justice Jeevan Reddy emphasised that the right to privacy is an inherent or
underlying right. The court ruled that the right to privacy is qualified and susceptible to
specific limitations in cases when it conflicts with the First Amendment's protection of free
15 Rajagopal v. State of Tamil Nadu AIR 1995 SC 264 (Supreme Court of India)
speech. Publication of any information not included in "public records" or "court records"
would very certainly violate the privacy of the people involved. In addition, it would be an
invasion of privacy to publish anything negative about someone with bad intentions.

After considering the preceding decisions, the Supreme Court ruled that such a right is
fundamental to individualism. This is a long-standing entitlement, predating even the social
contract notion; the fact that it has yet to be codified into law is attributable only to the
plethora of potential points of contention that may arise from doing so. Famous lawyer John
Locke introduced us to the concept of "tabula rasa," which captivated our attention by
highlighting the fact that each person has the autonomy to choose the foundations of their
own personality and the independence to chart the course of their own spiritual development.
The Supreme Court made the following observations in People's Union for Civil Liberties
v. Union of India16:

“Therefore, we have no qualms in upholding Article 21's protection of the right to "life" and
"personal liberty," which includes the right to privacy. In cases when an individual has a
reasonable expectation of privacy, Article 21 applies. This protection cannot be waived
"unless in accordance with the process prescribed by law.”

JUSTICE K.S. PUTTASWAMY v. UNION OF INDIA AND ORS : A CRITICAL

ANALYSIS

The law must evolve or die. The law must be flexible to accommodate the many ways in
which people's political, economic, and social circumstances might and do change. The
economic philosophy of “laissez faire” gained favour in the 18th and the 19th centuary. The
absence of government involvement in business dealings was assumed under this notion.
Since these businesses were now legally protected as monopolies, they could pursue their
own interests without any intervention from the government. Both forms of privacy
protection may be seen in these ideas. In an essay for the Harvard Law Review published on
December 16, 1860, Louis Brandeis and Samuel Warren brought up the concept of privacy
for the first time. The paper took into account a thorough look into a man’s spiritual and
intellectual activity and concluded that right to privacy is a part of right to life.

16 AIR 1991 SC 207 (Supreme Court of India)

The Supreme Court of India recently handed a verdict stating right to privacy is a basic right
which undoubtedly raised a controversy. Amid so many difficulties surrounding the
aforementioned right, privacy was eventually designated a basic right which is contained in
Article 21 of the Indian Constitution protecting right to life. The Unites States of America
previously had sector specific privacy regulations. After then, it evolved and changed into
several forms. Considering the pervasiveness of IT throughout industries, the recognition of
this right is urgently required. Hessen (one of the German States) was the first nation to
establish data protection rules (in 1970) which was intended to guarantee the privacy of the
public. Since then, at least 40 nations have passed similar legislation.

FACTS- The government of India decided to issue to all its inhabitants a unique
identification called Aadhar which is card carrying 12 digit Aadhar number. People need to
sign up for this card in order to access essential services like establishing bank accounts and
submitting tax returns. However, the registration process for such card requires the people to
supply their biometrics such as fingerprints, iris scans etc. Justice K.S. Puttaswamy, a retired
judge, filed a suit challenging the constitutionality of the Aadhar project, arguing that making
its registration obligatory violates people' right to privacy. This leaves no room for
negotiation with people who don't want to register at all. Furthermore, there is a lack of data
protection legislation in India, increasing the risk that individuals' personal information might
be disclosed without enough safeguards being in place. This will result in people's private
rights being violated.

Analysis and evaluation

The Supreme Court's ruling that privacy is a basic right stands. The right to privacy, however,
cannot exist in a vacuum. As an example, monitoring is crucial for reducing crime rates. If
keeping someone under surveillance is in the public interest as a whole, the person being
watched cannot simply claim that his or her privacy is being infringed. The Supreme Court of
India, in contrast to its American counterpart, has not yet acknowledged the notion of waiver,
which allows a person to give up some rights when the greater good calls for it. For the
simple reason that it would go counter to the Constitution's underlying premise that basic
rights are inviolable. If privacy cannot be guaranteed, how can it be considered a basic human
right? Right to privacy has been established as a basic and inalienable human right. Because
liberty without privacy and dignity is useless, it must be recognised as a basic human right.
According to the ratio of the Supreme Court of India's ruling in the Puttaswamy case, the
proposed data protection system is lawful. As with the right to life and personal liberty and
other basic rights safeguarding individual liberty in the constitution, the Supreme Court has
ruled that the right to privacy is a fundamental right. It was decided that privacy had both
negative and positive connotations, the former referring to the right to be left alone (the right
to self-development).

One's right to anonymity falls within the purview of the private sphere. This privilege
acknowledges that an individual's personal information belongs solely to her, and that she
may share it or keep it to herself as she sees fit. The heart of informational privacy, therefore,
is a right to autonomy and self- decision in respect of one’s personal data.

"Formulation of a regime for data protection is a complex exercise which needs to be

undertaken by the State after a careful balancing of the requirements of privacy coupled with
other values which the protection of data sub-serves together with the legitimate concerns of
the State," the court remarked.

Even the right to privacy might be curtailed under certain conditions.

1) The state has a legitimate interest in limiting the right.
2) Secondly, the limitation is reasonable given the importance of the interest at stake.
3) Third, the law imposes the limitation.

The courts' assessment of the means by which the demands of a free and fair digital economy
might be safeguarded can be a valuable reference point for determining whether, in a given
situation, a right to privacy over that which is asserted exists and would triumph over any
legitimate interest of the state. Our Constitution was written with freedom and equality in
mind because they are vital to our way of life and the reason we fought for our independence.

RECOMMENDATIONS
Justice B.N. Srikrishna's report includes the following suggestions:
1. First, only "clear, precise, and legitimate" reasons shall be used for processing
(collecting, recording, analysing, disclosing, etc.) personal data. Only the minimum
amount of information required for that purpose should be requested from any
individual.
A Limitation on Its Use: Only for Discernible, Authorized Purposes.
2. Second, there are certain problematic exceptions to this rule, including when the
government processes personal data when doing so is required to carry out a function
of Parliament or a State Legislature. This encompasses a wide range of activities, such
as service offering, licence issuance, etc. This seems to be incredibly nebulous and
open to abuse. Allowed processing of items deemed "essential" for the operation of
federal and state governments. Affirms the legitimacy of processing personal
information for the purposes of crime and law enforcement

3. The committee also suggested enforcing the "right to be forgotten" for "data
principles" (individuals whose personal data is being processed). This implies that if
the original reason for sharing the data has passed or the data principal has revoked
permission, the data can no longer be shared or may be shared only with certain
individuals. This is a tool that has been used in the European Union to have negative
articles about an individual removed off the internet after the story has passed its
initial period of public attention. Access to personal information is limited after its
original purpose has been met or permission has been revoked.

In addition, you have the right to verify and amend any stored information.
4. Data Localisation- Personal data will need to be housed on servers located inside
India, and transfers outside the nation would need to be subject to safeguards.
However, only computers in India will get access to your most important personal
data. A duplicate of all user information will be kept in India. Critical personal data
can only be kept on Indian servers.

Cross- border transfers of data subject to model contract clauses.

5. The committee advised that "sensitive" personal data (such as passwords, financial
data, sexual orientation, biometric data, religion, or caste) should not be handled
without express agreement, which takes into account the aim of processing.
Passwords, sexual orientation, and financial information all fall under the category of
"sensitive personal data."

In order to be processed, you must first provide your permission.

 6. To "protect the interest of data principals," prevent misuse of personal data, and
ensure compliance with the safeguards and obligations under the data protection
framework by corporations, governments, and anyone else processing personal data,
the committee suggested establishing a Data Protection Authority (Data fiduciaries).
The Authority will need to publish Codes of Practices on all of the above listed
aspects, the obligations of data fiduciaries including audits and ensuring they have a
data protection officer and grievance resolution system.
7. The Authority should have the authority to investigate and take appropriate action
against data fiduciaries liable for breaches of the data protection regime. Data
Protection Authority to monitor and enforce privacy laws With this authority, you
may investigate and punish data processors as needed.
8. To guarantee UIDAI independence and "bolster data security," the committee
recommended changes to the Aadhaar Act, 2016. These include the ability to verify
Aadhaar numbers offline and the introduction of additional civil and criminal
sanctions, while complaints will continue to be filed only with the UIDAI. Offline
Aadhaar verification, further sanctions, and ensuring UIDAI's independence and data
security.
9. RTI Act Amendments- The committee suggested that the \samendment change
Section 8(1)(j) of the RTI Act that related to the \sdisclosure of personal information
in the broader public interest. Under the previous Section 8(1)(j), disclosure of private
information was not required if doing so would violate the individual's right to
confidentiality or be contrary to "public authority or interest." The new section 8(1)(j)
seeks to strike a balance between the public interest in obtaining the information and
the damage that might be caused to the data principle.
- There is a new standard for determining whether or not RTI may be used to
divulge sensitive information.
- Individual harm vs the common good.

CASE BRIEF – 1

ISSUE RAISED
Can Personal information be protected

BRIEF CONCLUSION
 1. The two-judge panel in Thalappalam Service Cooperative Bank Limited v. St. of
Kerala (2013) 16 SCC 82 deliberated on whether or not the Kerala High Court
correctly affirmed a circular from the Registrar of Cooperative Societies. The circular
reclassified all cooperative organisations as public bodies under Section 2(h) of the
RTI Act, 2005. Information about an individual that has no bearing on any public
activity or interest, or that would constitute a "unwarranted invasion of the
individual's privacy," is protected from disclosure under Section 8(1)(j) unless the
authority is convinced that disclosure is necessary to protect a larger public interest.
The court noted that Article 21 of the constitution protects individuals' private rights,
and that legislatures have adopted laws like Section 8(j) of the RTI Act, 2005 to give
effect to such rights.

According to the ruling, privacy is not a fundamental right protected by the Indian
Constitution. There is currently no legislation in place to protect the privacy of Indian citizens
or to establish guidelines for collecting, storing, and sharing their personal information or to
establish penalties for doing so improperly. This would be remedied by the Privacy Bill,
2011, which has yet to be passed. The Supreme Court of India has repeatedly ruled that
individuals have a constitutionally protected right to privacy under Article 21 of the Indian
Constitution.

2. This is what the Constitutional Court of South Africa said concerning the right to
privacy in the country's founding document, NM & Ors. v. Smith & Ors., 2007 (5) SA
250 (CC), which they cited:
We have the freedom to decide what information about ourselves we want to make
public, and this is an inherently private act. When it comes to personal information,
giving people the ultimate say in whether or not it's shared is crucial for protecting
their privacy, respect, and agency. That's a call that shouldn't be made for you. Not
only the government, but all members of society have a responsibility to protect
individuals' right to privacy in all of its forms.

3. Article 12 of the Universal Declaration of Human Rights Act, 1948, further

recognises the right to privacy as a fundamental human right, as it provides 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 be secure from such violations or assaults under the law.
4. The right to be left alone is also guaranteed by Article 17 of the International
Covenant on Civil and Political Rights Act of 1966, to which India is a signatory,
which states: "No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home, or correspondence, or to unlawful attacks on his honour or
reputation."
5. As the Supreme Court said in R. Rajgopal's case, Article 21 of the Constitution
guarantees all people the right to life and liberty, which includes the right to privacy.
The "right to be left alone" is a fundamental human right. A person's right to privacy
extends beyond his or her own person and includes that of his or her family, marriage,
reproduction, motherhood, childbearing, and education.
6. Article 21 of India's Constitution guarantees citizens the right to privacy, and the
country's laws provide several protections to ensure that citizens exercise this right. In
accordance with the RTI Act's Section 8(j). If it is determined that the information
requested is private and has no bearing on any public authority, or if the officer is not
required by law to provide the information, the request will be denied.
7. As the Supreme Court of India explained in Girish Ramchandra Deshpande v. Central
Information Commissioner (2013) 1 SCC 212, disclosure of personal information
without a legitimate public interest in doing so would constitute an invasion of
privacy that is not justified under Section 8(1)(j) of the Right to Information Act.
Because the individual whose information is being requested also has a right to
privacy under Article 21 of the Indian Constitution, the official giving the information
must document his rationale for doing so in writing before releasing the requested
data.

The non obstante phrase at the beginning of Section 8 gives that Section precedence over any
other provision of the Act that may be in conflict. Even if, there is any evidence to the
contrary, yet there is no obligation on the public authority to offer information to any citizen
of what has been indicated in Clauses (a) to (j) (j). The public authority, as already indicated,
cannot access all the information from a private individual, but only that information which
he is legally obliged to pass \son to a public authority by law, and also only that information
to which \he public authority can have access in accordance with law. If the information is of
a personal nature, it cannot be released unless in accordance with the restrictions set out in
Section 8(j) of the RTI Act. Olmstead v. United States [72 L Ed 944: 277 US 438 (1928)]
established the right to privacy as the most fundamental and highly prized of all human
rights.

CASE BRIEF – 2

ISSUE RAISED
Can Right to Privacy be time bound.
BRIEF CONCLUSION
1. The Honorable J. Chelameswar, Naturally, no person or group has an unquestionable
legal right. However, there are bounds to any right. There was a concession on this
point at the bar. Therefore, there are limits even to a basic right to privacy. The
specific restrictions were to be determined on a case-by-case basis, based on the
specifics of the alleged privacy interest. After reiterating that a basic right to privacy
is included in the liberty guarantee of the Constitution, it became important to spell
out how that right can be restricted.

2. Two, the Court ultimately did not enter a precise ruling on the existence of a right to
privacy under the Constitution, as shown by the judgement in Gobind vs. St. of
Madhya Pardesh. If the Supreme Court rules that a person's private rights should be
preserved under the Constitution, then any legislation that violates those rights must
meet the "compelling State interest test," as the Court put it. Then we have to ask, "Is
the State's interest so compelling that it requires us to violate this right?"

3. Third, because of how time works, things are always shifting and evolving. If one
uses a sophisticated and far-reaching method of breaching privacy, they may be able
to overhear a private conversation that takes place in a bedroom. However, the
legitimacy of judicial reliance on a right that is not specified in the Constitution is
called into doubt by a privacy definition that is excessively wide.

4. The provisions of the Indian Stamp Act, 1899 were examined by a bench of two
judhes of the Supreme Court in the case of District Registrar and Collector,
Hyderabad v. Canara Bank (MANU/SC/0935/2004: (2005) 1 SCC 496; "Canara
Bank"). To obtain any obligation or to prove or would lead to the discovery of a fraud
 or omission, the collector was given authority under Section 73, which was later
struck down by the high court. In accordance with Section 73, "every public officer
having in his custody any registers, books, records, papers, documents or proceedings,
the inspection whereof may tend to secure any duty, or to prove or lead to the
discovery of any fraud or omission in relation to any duty, shall at all reasonable times
permit any person authorised in writing by the Collector to inspect for such purpose
the registers, books, records, papers, documents and proceedings, and to take such
copies thereof as may be necessary for the purpose. Chief Justice Lahoti, after
discussing how privacy evolved in the United States from a property right to a
personal one in 1975, alluded to the privacy shadows cast by the Bill of Rights, which
he said led to a "reasonable expectation of privacy."

5. It is undeniable that pensioners for payment of pension from a class, as stated in the
case referred to in D.S. Nakara & ors. vs. Union of India [1983]2 SCR 165,
considering the goals for the attainment of which pension is paid and the welfare State
proposed to be set up in light of the Directive Principles of State Policy and Preamble
to the Constitution. The pension rules, which were statutory in character, violated the
guarantee of equal treatment contained in Art. 14 because they divided pensioners
into two classes based on the specified date without any rational principle and were
also arbitrary and unprincipled. This was because the division was unrelated to the
goal that was being pursued by the liberalised pension. The petitioners did not raise
any objections to the liberalised pension programme, but rather sought to take
advantage of it. Their complaint is that they were wrongfully denied access to the
same due to the arbitrary use of limitation clauses. After a certain date, the selection
of an event as qualifying requirement was not unchangeable. A lack of precedence is
not a deterrent, the court said. At some point in the past, every previously established
principle of social and economic fairness was put into practise for the first time. Law
as a tool of social engineering would have been doomed if it had been rejected as
unprecedented at the time. [193 G, 193 C-D] ”

6. If the conditions for the law's effect are derived from a period before it was enacted,
then the law cannot be considered retroactive. Pensioners who retired before 31
March 1979 and who have previously taken advantage of the commutation benefit are
not eligible for another round of commutation since their retirement dates will stay the
 same. Because commutation may only be used within a certain time frame beginning
with the date of real retirement, they are no longer eligible to get this perk at this
point.

7. If you've worked for the government for a long time and done your job well, you've
earned a pension, which is essentially a kind of compensation that you get later. As a
social-welfare policy that provides economic stability in old age to individuals who
laboured tirelessly in their prime, pension has wider importance.

The following remark may be drawn from the case Maneka Gandhi vs. Union of India:

"To what extent does the great equalising principle extend, and what does it entail? set
forward in this piece? There's no denying that it's one of the Constitution's guiding principles.
Indeed, it serves as the rock upon which our constitutional republic is built. And hence, it
must be protected against reductionist, pedantical, or lexicographic analysis. Any effort to
limit its expansive meaning would be a violation of its activist significance, thus that
shouldn't be done. A dynamic idea with numerous facets and dimensions, equality cannot be
confined to rigid doctrinal frameworks. ... Article 14 combats State arbitrariness and
guarantees all citizens are treated equally. Article 14 is permeated by the looming
omnipresence of the norm of reasonableness, which is a necessary component of equality or
nonarbitrariness from both a legal and philosophical perspective "

Parliament is presumed to have intended laws to be interpreted in a way that is consistent

with their constitutionality when courts are asked to interpret them. Unyielding use of this
assumption may cause interpretations of legislation that are arbitrary, imprecise, and subject
to change. The rule of law ideals of stability and predictability in the legal system may be
compromised as a result. This article argues that, in general, and in the context of interpreting
legislation in line with the Constitution in particular, rule of law ideals may play a role in the
constructional process. As shown in Minreva Mills v. Union of India case law reported in
1980 AIR 1789, 1981 SCR (1) 206

It's common knowledge that you may avoid a constitutional challenge by narrowly
interpreting a law's language. But we cannot accept the argument of the skilled counsel in this
case because doing so would radically alter the concept of reading down and remove the sole
or real justification for applying that doctrine in cases where terms of breadth are employed
accidentally. Reading down is not to be used to protect legislators' feelings or to create the
illusion that one's preferred bill has been enacted. It is at least necessary to take Parliament at
its word when it pursues a constitutional revision.

Legislative purpose must be honoured, and the idea of reading down cannot be used to
overturn it. We assume that no amendment to the Constitution has ever been narrowly
interpreted to entail the reverse of what its authors intended. To accept the idea that we
should read down Article 31C so that it conforms to the ratio of the majority judgement in
Kesavanda Bharti is to demolish the professed aims of Article 31C, as evidenced by the very
term "Saving of certain laws" under which Articles 31A, 31B, and 31C are clustered.

It seems impossible to hold that we should still save Article 31C from the challenge of
unconstitutionality by reading into that Article words which destroy the rationale of that
Article and an intendment which is plainly contrary to its proclaimed purpose, given that the
amendment to Article 31C was undoubtedly made with the aim of empowering the
legislatures to pass laws of a particular description even if those laws violate the discipline of
Articles 14 and 19.

Article 14 guarantees everyone inside India's borders the same rights and protections under
the law, regardless of their gender, ethnicity, religion, caste, sexual orientation, or place of
origin. Certain rights to freedom of expression are guaranteed in Article 19. All Indian
citizens have the right to: a. Freedom of Speech and Expression; b. The Right to Peaceful
Assembly; c. The Right to Form Associations or Unions; d. The Freedom to Travel Within
and Between States Within India; e. The Freedom to Choose One's Place of Residence and
Permanent Establishment Within India; and f. The Freedom to Engage in or Establish Any
Profession, Trade, or Occupation Within India.

No individual should be deprived of life or personal liberty unless in accordance with the
processes prescribed by law (Article 21).

The Constitution's framers for ensuring that no individual or group of individuals are exempt
from following the law or having their basic rights and responsibilities guaranteed to them by
the Constitution. The socioeconomic context of India has also been thoroughly examined to
ensure that no rights or responsibilities are overlooked. Part IV, "Directive Principles of State
Policy," lays forth additional protections and responsibilities for citizens beyond those
guaranteed by the Bill of Rights. These rules are drafted with the idea in mind that people's
rights are dynamic and hence cannot be deemed basic but must be upheld. Our Constitution's
strength lies in the fact that it does neither prevent anybody from using their basic rights, nor
does it provide them complete freedom in such a way that they use them to their own or
society's detriment. Perhaps this is what sets our Constitution apart from the other great
Constitutions of the world.
Can We Look Back at Our Progress Since the Puttaswamy-I Decision?
The Supreme Court of India upheld the right to privacy in a landmark ruling on August 24,
2017, by a nine-judge panel in the case of Justice KS Puttaswamy vs. Union of India. Article
33 of the Indian Constitution was deemed to be dedicated to the protection of personal
privacy.

Rights to equal treatment under the law, freedom of the press, freedom of assembly,
protection of the individual's life and liberty, and many more are spelled down in Part III of
the Constitution.

The court ruled in favour of the individual's right to privacy regarding their personal
information and ordered the immediate establishment of a special committee to investigate
the situation and come up with a data protection framework to defend that right.

We need a strong data protection legislation that provides proper checks and balances when
the government needs to access data for national security reasons since the current rules on
surveillance are inadequate.

We also need surveillance reforms that allow for legislative and judicial monitoring of India's
intelligence services and police, in accordance with the theory of separation of powers as
contained in the Constitution of India, in order to avoid abuse of power.

An Inquiry by the Srikrishna Panel (2017)

Committee led by retired Supreme Court judge Justice BN Srikrishna was entrusted with
investigating the important problems and delivering suggestions under the SC's directives in
the Puttaswamy ruling on the protection of informational privacy.
On 27 July 2018, almost a year later, the Committee delivered its report to the Ministry of
Electronics and Information Technology, titled "A Free and Fair Digital Economy -
Protecting Privacy, Empowering Indians." The report included a proposed Data Protection
Bill.

case of Navtej Singh Johar v. Union of India (6 September 2018)

On September 6, 2018, a unanimous Supreme Court decided that Section 377 of the Indian
Penal Code (IPC), 1860, which criminalised sexual behaviour between two consenting adults,
violated the Constitution.

The court's decision in the right to privacy case was relied upon to support its conclusions
that discrimination based on sexual orientation violated the right to equality, that
criminalising consensual sex between adults in private violated the right to privacy, that
sexual orientation forms an inherent part of self-identity and denying the same would violate
the right to life, and that fundamental rights cannot be denied on the ground that they on their
face appear to be unconstitutional.

Aadhaar Act Constitutionality (Puttaswamy-II Judgment 26 September 2018).

Former Karnataka High Court judge KS Puttaswamy launched a case against the Aadhaar
scheme, claiming that it was a violation of his right to privacy.

When he first filed his suit in 2012, before any Aadhaar law was in place, he claimed that the
system gathered highly personal information without any protections.

Since private organisations might now seek verification by Aadhaar for any purpose subject
to rules by the UIDAI, the project's scope had grown even more after the Aadhaar Act was
adopted in 2016. There was still no data protection legislation. It was highlighted by Justice
Puttaswamy that the government may misuse the obtained biometric data.

In the end, the majority of the court supported much of the Aadhaar Act, however it was
ruled unconstitutional to utilise Aadhaar for verification by private businesses. The court's
decision adheres to the principles outlined in the Puttaswamy-I ruling, including the nature of
the right and the proportionality test that must be used to any prospective constraints on the
right.

CBI vs. Vinit Kumar (October 2019)

The Bombay High Court looked at the issue of a businessman's phone conversations being
tapped through the lens of a potential invasion of his privacy. The Union Home Ministry
ordered the aforementioned individual's communications to be intercepted due to allegations
of bribery of a public worker, and this was the topic of the case at hand.

It was argued that the orders were illegal, and the court agreed. It primarily argued that it did
not comply with the statutory requirements and process under Section 5(2) and Rule 419A of
the Telegraph Act, using the Puttaswamy-I verdict as support.

Introduction of the Personal Data Protection Bill (December 2019)

The government submitted its version of the Personal Data Protection Bill in Parliament on
12 December 2019. Immediately following introduction of the Bill, it was forwarded to a
Joint Parliamentary Committee (JPC) for review.

A number of changes were made to the Personal Data Protection Law, 2019 from the original
bill proposed by the Srikrishna Committee. Increases in government authority and the extent
of exemptions granted to the government have been two of the most controversial changes.

For starters, public order, national security, and good ties with neighbouring states are all
listed as grounds for which the government and its authorised agencies are excluded under
Clause 35 of the Bill.

The 2018 draught law had given for protections and had confined the same to only “national
security” concerns. Concerns about surveillance were raised by the provision, therefore it
must be evaluated in light of the Puttaswamy judgment's requirements of need, legality, and
proportionality.

The Dialogue's Shefali Mehta told The Quint that as India rapidly enters an era of
digitisation, with technology being used for better delivery of welfare services and for
innovation in almost all sectors, the need for a data protection framework is being felt very
strongly in order to protect citizens and give the government more authority.

"Once the law is conceptualised, the process of implementation and guaranteeing compliance
will begin, given India's data infrastructure and status of the industry at present - this is going
to be an uphill challenge. It is crucial that the government moves quickly and enacts a well-
balanced legislation in order to safeguard the interests of Indian nationals and make India a
favourable tech destination "she elaborated

State of Odisha vs. Rout (November 2020)

There is a subset of the right to privacy that includes the "right to be forgotten," and that has
been acknowledged by the High Court of Orissa. During the course of a bail plea, the court
noted on how the right to be forgotten is an inherent aspect of the right to privacy.

It discussed the need of having guidelines in place to guarantee that people may exercise their
right in a way that keeps their privacy safe.

In the Matter of Kush Kalra v. Union of India (December 2020)

The Supreme Court ruled that it is illegal to put flyers in front of the residences of those who
test positive for COVID. The reason for this is because it was seen to be in violation of basic
human rights, such as the right to privacy and the right to live one's life with respect and
dignity.

The Supreme Court of India reaffirmed in the case of Puttaswamy vs Union of India that "the
affixing of posters amounted to infringement of the right to privacy protected under article 21
of the Constitution of India."

Regulatory Framework for Information Technology, 2021

The Draft Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021 was announced by the Government of India on February 25. Three months after
the guidelines were published, the public was informed of their existence.

These standards aimed to regulate two groups within the digital media ecosystem:
 - Control over media intermediaries including social networks
- The need for oversight of over-the-top services and online news outlets

To combat issues like false news, hate speech, and the spread of CSAM (Child Sexual Abuse
Material), these regulations force major social media intermediaries to track back messages to
their original source.

Fulfilling such a criterion, however, would compromise the security of many platforms' "end-
to-end encryption" or give a "backdoor access" to such encrypted systems for the sake of
identification.

This will surely influence the right to privacy of Indian residents, and it is uncertain whether
the proportionality criteria from Puttaswamy-I verdict is met when it comes to it.

A New Cyber Security Policy Is Necessary Due to an Increase in Data Breaches

It became clear that India needed to update its cyber security measures after a series of high-
profile data breaches in 2021, including those at Air India, Domino's, Facebook, Mobikwik,
and Upstox, exposed the sensitive information of hundreds of millions of Indians.

India's Cyber Security Policy, which was last updated in 2013, is where the policymaking
process most desperately needs to catch up. Although thorough when first implemented, the
strategy now seems inadequate in light of developments in technology.

Issues of national security, key infrastructure, and even commercial interests must all be
addressed. Attacks on critical infrastructure, like the one the Chinese government is accused
of launching against Mumbai, and on critical infrastructure, such India's nuclear power
facility at Kudankulam, have only served to further emphasise the need of implementing a
comprehensive cyber security strategy.

Industry, academia, and civil society all eagerly anticipate the government's new cyber
security strategy, but it has yet to be made public. The government has a significant challenge
in ensuring that the new policy fills the voids shown by the 2013 policy's execution,
particularly with regard to bolstering the security of the key infrastructure.
Concerns have been raised about the potential effects of data breaches on people' right to
privacy. The right to privacy of citizens relies on the implementation of robust data protection
methods and cyber security measures.

Worries About Pegasus Surveillance, and What Future Precautions India Must Take

The Pegasus Project's latest disclosures of potentially thousands of targets of monitoring

throughout the globe have shocked the public.

The lack of an overarching and nuanced monitoring framework is troublesome. There is a

pressing need to update and reevaluate the policies and procedures that regulate surveillance
operations.

It is crucial that due process be created and adhered to before the State approves any requests
to conduct surveillance on its people.

In India, the absence of an overarching and nuanced surveillance framework combined with
the lack of explicit data privacy protections is a difficulty. Compromising one's privacy may
result in a breach of security and vice versa.

CHAPTER III

MATRIMONIAL RELATIONS & RIGHT TO PRIVACY : RECENT

DEVELOPMENTS & LEGAL IMPLICATIONS

Marriage, as defined by all matrimonial statutes, is a relationship that imposes certain marital
responsibilities on both partners and confers certain legal rights on both partners. If a couple
is getting married, it's assumed that they'll be sharing a house together. In light of the
Supreme Court's recent Right to Privacy judgement, provisions in different Acts pertaining to
the restoration of conjugal rights have been struck down as unlawful.

They "amount to governmental interference with a woman's private choice whether or not to
participate in sexual activity," and "it is clearly evident that state cannot compel a wife or a
husband when to agree for sex/cohabitation," respectively. Also, having sexual relations with
a minor wife at the same time is a kind of rape. The petition argues that "these clauses
contradict heart, spirit, and substance of the Right to Privacy judgement of the Supreme
Court" under the Indian Constitution. The right to privacy is safeguarded as an inherent
aspect of the right to life and personal liberty under Article 21 and as part of the freedoms
granted by Part III of the Constitution, as a nine-judge constitution bench decided on August
24.

In every major faith, marriage is seen as a sacred institution and a means of achieving social
prestige. When seen from a sociological perspective, marriage is seen as necessary for
religious purposes. Our ancestors lived a nomadic lifestyle in the distant past. Marriage, as
defined by sociologist S. Mazumdar, "is a socially sanctioned union of male and female for
the aim of forming (a) home, (b) engaging into sex relations, (c) procreating, and (d)
providing care for the kids."

Before the advent of civilization, marriage relationships may have consisted only of a herd-
instinct kind. Because of the shift to an agrarian lifestyle, establishing paternity became an
important social norm. If sexual promiscuity remained the norm, this could never happen.
Only if sexual unions were restricted to one man and one woman would it be feasible to
establish paternity. Accordingly, the origins of marriage may be traced back to early attempts
by humans to establish paternity. Thus the notion of marriage a form of man-woman
connection as a responsible one-to-one unit of society-evolved a unique human family
structure. Its fundamental components were intercourse, generation of children and living
together with reciprocal duties and responsibilities to the care of kids. The institution of
marriage brings prestige to women, promotes their own happiness wellbeing and provides
family support & companionship. Now a day’s our Apex Court touched the essential root of
marriage when it ruled the instances on restoration of conjugal right and intercourse with her
wife.
This article analyses the issue of marriage in light of Right to Privacy is a basic right ruling
delivered by Hon’ble top court. In recent time, ruling of supreme court says, that the
intercourse with her wife is crime if she is below the age of eighteen, now regarded as rape,
when its happens without her agreement as well as court cannot force to live together under
restitution of conjugal right. Though the Supreme Court's rulings generally work to the
benefit of women's rights, they have the potential to undermine the family unit on occasion.

Introduction
Marriage's role as the cornerstone of the family and the social fabric makes it a net positive
for all of society. It offers significant stability and significance to human connections.
Marriage is a public institution that should be protected and supported, not just a private
agreement between two people.

Too many modern families, unfortunately, have lost touch with their origins and have
become nothing more than a collection of self-absorbed individuals who are married to one
other. Unlike any other modern civil society, Hinduism has always sought to elevate and
sanctify marriage as a cultural norm. Conjugal devotion is seen as the ultimate asset of a
woman and it is this quality that has safeguarded the race and religion over the years.
Unfortunately! This foundation of human society and Hindu society in particular is
threatened by cultural assaults from several directions in contemporary India.

The courts have a critical function in balancing the demands of a dynamic society with the
rights of its individual citizens. Our fundamental rights are safeguarded by the Supreme Court
and the High Courts. The specific scope and character of the Constitutional guarantee have
been defined by the courts in a number of rulings. In reality, the law has been greatly
simplified thanks to these rulings.

Parliamentary legislation had no genuine connection to social justice in keeping with people's
lives throughout the pre-independence era, and the process of social development was
relatively gradual as a result. The true law is what they do in actual judicial acts. The life of
law is not logic but experience and what the court determine and thus emphasises the
empirical and pragmatic features of law. The term "legislation" refers to the process of
creating new regulations, and it also covers the creation of new laws by the courts. According
to Dias and Hughes:

“Legislation is legislation established purposefully in a set from by an authority which the

courts have acknowledged as competent to perform that duty.”

Restitution of Conjugal Rights is a remedy, which simply implies restoration or reinstatement

of one’s marital rights or privileges (such, comfort and consortium of one another ) which the
marriage or the marital tie entitles him to. All of the different types of personal law have the
same rule on the restoration of conjugal rights. But if she is not the man's wife and is under
16, then any sexual contact between them, even if she gives her permission, is still a kind of
rape. According to Section 375 unwanted intercourse with an unmarried woman or married
lady except by her husband is rape but what about married lady if the unwanted intercourse is
done by her husband. Marital rape is unheard of in India. Here it looks that we are
establishing discrimination between rape committed with unmarried woman and rape
committed with married ladies (15 years of age and above) by her husband.

The significance of marriage

Marriage is a public institution that should be protected and supported, not just a private
agreement between two people. As social science studies and government surveys
increasingly demonstrate, the drop in marriage since the 1960s has been accompanied by a
rise in a number of major socioeconomic issues.

Marriage is seen as a sacred institution in Hindu culture. The partnership between husband
and wife imposes upon each other specific legal marital responsibilities and grants each of
them legal marital privileges. The husband has an obligation to create a safe haven for his
wife, to provide for her material needs within their means, and to treat her kindly. It enjoins
on the woman the responsibility of attendance, obedience to and reverence for the husband
and to dwell with him wherever he may choose to stay. Marriage between a man and a
woman is now more of a social institution than a means to an end when it comes to sex. A
knit-work of social do’s and don’ts has been woven around this network by tradition, social
practises and community punishments, whether defined or not codified expressly.
Marriage is an institution to meet physical, psychological, social, cultural and economic
demands of men and women. As a result, men and women are able to settle down with one
another and have families. The major purpose of marriage is to provide a stable environment
in which sexual activity may be controlled. Such a restriction is necessary since sexual desire,
if allowed unrestrained, may create significant damage in society. Married couples have to
perform various duties towards one other and society in general. A plethora of benefits are
given to them in exchange.

According to Westermarck, marriage is a commitment between a man and a woman that lasts
beyond the point of reproduction and continues after children are born. In The Future of
Marriage in Western Civilization (1936), he rejected his former definition, instead
temporarily defining marriage as “a connection of one or more males to one or more women
that is recognised by tradition or law”.

Function of Marriage

Marriage serves a primary societal purpose by allowing two people to have sexual relations in
a legally sanctioned and socially acceptable setting. The law only permits married people to
have sexual relations with their partners and no one else.

Creation and care of offspring: a primary purpose of marriage is to produce offspring and to
nurture them in accordance with established societal standards. In a traditional family, both
the husband and wife work together to ensure their offspring have the best chance of thriving
and developing to their full potential, both physically and psychologically. The couple's kid
or children are additionally cared for by extended family and friends.

When compared to the offspring of other species, a human infant has far higher requirements
for care and safety. Marital stability is crucial to the offspring's survival.
Together for Safety and Prosperity in the Economy:

The support of a spouse in one's financial endeavours is invaluable and dependable. The
husband and wife establish up a family and both work to provide for them. This may be done
in a variety of ways, including working from home, in a farm or forest, or in some other
vocation. The two parties also take care of each other financially. They pool their resources to
provide all of their kids' material needs, including those for nutrition, clothes, housing,
education, healthcare, leisure, and so on.

Provides company and comforts the lonely:

With a spouse at your side 24/7, you'll never be alone. In many cases, the bride and husband
don't know one other before getting married, but after starting a life together, they quickly
become inseparable. A year together only strengthens their love for one another.
The reasons why people get married are mostly these:
Dharma — the fulfilment of one's religious obligations
Prajna (Childbirth) and Rati (Sex Pleasure)

The Dharma purpose of marriage has always been seen as the most important. Marrying is
seen as a necessary step in fulfilling social and religious obligations in the religion. It is
assumed that a married couple would have children who will carry on the family name.

Rape
The Latin root 'rapio' means "to seize," and it is from this root that we get the word 'rape.
Therefore, rape is the unlawful sexual assault or enslavement of a woman by the use of
physical force, threats, or deception. Defining rape as "the ravishing or violation of a woman"
Forcing a woman to engage in sexual activity against her will is a kind of sexual assault. In
any light, rape is an outrageous violation of a woman's right to her own body and privacy. It's
the worst kind of assault on a woman's dignity. 'Deathless disgrace and the gravest offence
against human dignity,' as the Supreme Court of India put it. Rape is a devastating crime that
destroys more than just the victim's body. A woman can never rape another woman because
of biological differences. One of the worst things that can be done to a woman is to be a
victim of rape. It's up there among the world's worst crimes. This is a terrible injustice that
must be stopped. It's a violation of a woman's right to life under the Constitution. The Indian
Penal Code classifies all forms of rape as a felony with the exception of those committed
inside a marriage. Rape is defined as "sexual intercourse with a woman against her will,
without her agreement, by compulsion, misrepresentation, deception, or at a time when she is
drunk or misled, or is of defective mental condition and in any instance if she is under the age
of 18" under Section 375 of the Indian Penal Code. As the definition suggests, consent or
intent plays a significant role in determining whether or not a sexual encounter constitutes
rape. It is the primary factor in determining guilt in cases of rape. If the person performing
the act knows or has reasonable cause to think that the consent was provided as a result of
such fear or misperception, or if the person giving the permission is crazy, then the consent
does not meet the requirements of any provision of the Indian Penal Code. When someone
provides their assent to anything while under the influence of drugs or alcohol, this is known
as "consent of an insane person." Adolescent assent. Except if the context clearly indicates
otherwise, a person's consent who is under the age of twelve is considered to be that of a
child. If the woman is above the age of fifteen, rape in the context of a marriage is prohibited
under Section 375.

Violent assault on a spouse

The simple idea of rape occurring inside a marriage causes excruciating pain for the victim.
The prospect of facing everything and yet having to suffer in silence is painful, and it has an
impact on the women's psyches. The effects of this silence on women's mental, emotional,
and physical health are devastating.

According to Section 375 of the IPC, the age of consent for sexual intercourse is 18 years,
making anybody who engages in sexual activity with a female child under the age of 18
guilty of rape under the law. Almost every legislation in the country defines a female as a
minor if she is under the age of 18, and that's why having sexual relations with a minor under
the age of 18 is punishable.

To make matters worse, Article 15(3) of the Constitution, which authorises Parliament to
make special provision for women and children, is directly at odds with the discriminatory
and arbitrary nature of Exception 2 to Section 375 of the IPC. In reality, the female child is
put at a tremendous disadvantage by the enactment of Exception 2 to Section 375 of the IPC
in the law book, in direct opposition to the visionary and benevolent philosophy propounded
by Article 15(3) of the Constitution.
Paragraph 5 of Section 375 In the few lines above, we discussed how sexual contact without
permission might constitute rape. This brings us to the fifth prong of 375's consideration. It
involves having sex with a girl who is too young to legally be your date (16 or younger).
Regardless of whether or not the lady agrees to the sexual encounter, it is still illegal.
To the extent that it applies to minor females, Exception 2 of Section 375 of the Indian Penal
Code should be overturned because (i) it is not fair, just, and reasonable and thus violates
Articles 14, 15, and 21 of the Indian Constitution; (ii) it is discriminatory and thus violates
Article 14; and (iii) it is inconsistent with the provisions of the Penal Code. In light of the fact
that this Court has not addressed the broader question of "marital rape," Exception 2 to
Section 375 IPC must be narrowed in order to comply with the letter of the law and the
Constitution of India.

Restoration of Sexual Possession

In traditional Indian culture, the woman lives with her husband after marriage. The husband
has the legal right to insist that his wife reside with him, and the woman has the legal
obligation to do so. However, there are situations in which this is not the case, and conjugal
rights are established. According to the definition provided by George A. Lundberg, a
married couple's rights, responsibilities, and privileges to one another are outlined in a
contract.

When a wife abandons her husband without good reason, he has the right to submit a petition
to regain conjugal rights. If the court finds the evidence presented to be sufficient and there
are no additional impediments to granting the petition, the decree may be issued.

Specific performance was first used to the notion of restoring conjugal rights in India in the
case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum. That "if there be cruelty to the
degree rendering it unsafe for the wife to return to her husband's dominion, the Court will
refuse to send her back to his House; so also, if there be a gross failure by the Husband of the
performance of obligations which the marriage contract imposes on him for the benefit of the
wife, it affords sufficient ground for refusing him relief in such a suit," was a key part of the
relevant judgement.
There have been repeated challenges to the constitutionality of the clause allowing for the
restoration of marital rights. The first time this happened was in 1983, when the Andhra
Pradesh High Court ruled that the challenged part was unconstitutional in T.Sareetha v. T.
Venkatasubbaiah (where the term "Hon'ble High Court" first appeared). The Supreme Court
ultimately reversed its earlier ruling in T. Sareetha v. T. Venkatasubbaiah and affirmed the
constitutionality of Section 9 of the Hindu Marriage Act, 1955 in the case of Saroj Rani v.
Sudharshan.
A court refused to uphold a prenuptial agreement in the case of Hamidunnessa Biwi v.
Zohiruddin Sheikh because the wife relied on it to support her claim that her husband would
always live at his mother-in-house law's and that she would never be required to leave her
parental home or reside elsewhere. It should be noted that this was in accordance with
Muslim law, which recognises marriage contracts called "nikah-nama," and which permits
guardians to enter into such lawful contracts on behalf of a spouse who is a juvenile at the
time of marriage. But such provisions will not be upheld because they go counter to public
interests. It also goes against the rights and duties that each spouse acquires at marriage.

The case of Krishan Iyer v. Ballamal, which considered the legality of spousal separation
agreements, concluded: We believe that the agreement, regardless of whether or not it is
governed by Hindu Law, must be deemed contrary to public policy and, as such, to be
unenforceable. It's possible that Hindu Law would prohibit this.

In the later case of Shanti Nigam v. R. C. Nigam, the Allahabad High Court adopted a more
lenient stance. According to the applicable portion of the ruling, "women can no longer be
restricted to the home." As a result of shifting societal norms, it's possible that both spouses
may feel pressure to earn an income and make financial contributions to the family bank
account. It's one thing for a woman to declare that she would never again visit her husband,
live with him, or even see him. It's a different story if she claims that she has to work to
support the family, that she'd visit her husband whenever it was convenient for her to do so,
and that her husband could do the same. It would be unfair to say that she has abandoned her
spouse under these circumstances.

A ruling of restoration of conjugal rights often requires the offender to move in with the
victim. Only the restoration of conjugal rights stands as a possible legal recourse for an
abandoned spouse. Either spouse may ask the court for reinstatement of their right to reside
with the other. This decision of restoration of marital rights, however, is notoriously difficult
to put into effect. Although the court has the authority to issue a judgement of restoration of
marital rights, it has no legal authority to ensure that the decision is really carried out. If one
spouse does not follow the court's orders, the other will suffer "constructive damage." For
now, a decree of divorce may be obtained by the aggrieved party by filing a petition with the
appropriate court after the expiration of one year from the date of the decree. If the spouse
who was awarded restoration of conjugal rights does not comply with the court's order, the
court may seize their property and even penalise them for contempt of court. However, the
court cannot compel the unfaithful spouse to consummate the marriage. Only in the event of
legally recognised marriages might a decree of restoration of conjugal rights be issued.

Both Section 22 of the Special Marriage Act, 1954 and Section 9 of the Hindu Marriage Act,
1955 include the same language on the restoration of conjugal rights. In brief, it goes like
this:

If one spouse has abandoned the other without just cause, the other can petition the district
court for a restoration of conjugal rights, and if the court is convinced of the veracity of the
claims made in the petition and that there is no basis in law for denying the request, it will
issue a decree restoring the parties' conjugal rights.

Commonly, a marital remedy will include the restoration of conjugal rights. Restitution of
conjugal rights is a positive remedy that mandates continued cohabitation between the
married couple.

Where "either the husband or wife has, without lawful ground, withdrawn from the society of
the other, or neglected to perform the obligations imposed by law or by the contract of
marriage, the court may decree," Tayabji explains how this provision for restitution of
conjugal rights is conceived of in Muslim law.

When one spouse has abandoned the other's company without just cause, these clauses
become effective. What does it mean to "withdraw from society?" For example, in Sushila
Bai v. Prem Narayan, the husband left his wife and never spoke with her again. His actions
were seen to be sufficient evidence that he had abandoned his marriage, and his wife was
granted her request for restoration of conjugal rights. The idea of a "usable justification"
might be used as an exception to this rule. Respondent's withdrawal from his spouse's
company for a good cause is a full defence to a restitution petition.

It is necessary to design a border around the region where conjugal rights are to be
established. It's possible to "withdraw from society" without really leaving or isolating
yourself from other people.
Abandonment may also refer to:
● the Respondent-voluntary wife's withdrawal from sexual relations
● her refusal to cooperate in the fulfilment of marital duties
● her intention to forsake permanently

Privacy v/s Position of marital Rape & conjugal right

IPC's exemption draws an arbitrary line between married and unmarried female children that
serves no evident purpose. This artificial differentiation is harmful to society and the future of
the female kid. This arbitrary division is counter to the spirit and letter of Article 15(3), as
well as Article 21 and our international treaty obligations. Some laws are based on the idea
that a woman should have complete control over her own body, including her reproductive
options, and this idea runs counter to that.

In India, there are no personal laws that provide for the restoration of marital rights as a legal
remedy. Only until the British took over did it arrive. It's amazing that the British rulers of
India provided just this one marital remedy under general law for all of India's many
ethnicities. In England it stemmed from the Jewish law.

Inspiration from India, but with a Borrowed Concept:

Both idea either marital rape or restoration of conjugal right are borrowed in India it is not
present in Indian culture from beginning. Therefore, the law did not see rape as a crime
committed against a woman's person, which would result in the loss of her freedom, but
rather as a means of safeguarding a man's property from the sexual aggressions of other men.

In Shakila Banu v. Gulam Mustafa , the Hon’ble High Court observed:

“(The notion of restoration of marital rights) is a vestige of ancient times when slavery or
quasi-slavery was seen as normal. This is especially true when the Constitution of India
came into existence, which guarantees personal liberty and equality of status and
opportunity to men and women equally and further places authorities on the State to
establish specific measures for their protection and safeguard.”

Since a married woman was legally deemed to be the husband's property, it was not
considered criminal for a husband to rape her. This solution though put up with an
exceptionally good aim and goal in mind doesn’t lead to the anticipated conclusion mainly. It
was put up to safeguard the very sacramental tie of marital relationship and to protect it from
simple whims of the spouses or from minor wear and tear of marriage. It is to ensure that an
unhappy spouse is not deprived of all the marital delights only because of any unjustified
cause of his spouse. It is to observe if the parties are able to find a path back to each other and
settle out their disagreements. Marriage has been a union of two families independent from a
union of two humans. Since ancient times, a great deal of value has been placed on this tie
because of the emotional, sacramental, and spiritual significance it represents. The
preservation of the institution of marriage, rather than its dissolution for trivial or capricious
reasons, has therefore been seen as the responsibility of the judicial system.

The Bombay High Court has ruled that a lengthy period of time without sexual activity
between spouses constitutes cruelty and is thus grounds for divorce. The Supreme Court
upheld the Madras High Court's decision to award a divorce to a man on the grounds that his
wife's refusal to allow him to have sexual relations for an extended period of time without
good cause amounted to mental cruelty. Thus, a husband, who is refused conjugal rights by
the wife, may sue for divorce, without the remedy of return of rights. The matter will
thereafter be handled similarly to a divorce case. To argue that Exception 2 to Section 375
IPC likewise infringes on the right to privacy of a female child, consider the case of Justice
K.S. Puttaswamy (Ret.) & Anr. v. Union of India & Ors. Since anything stated or encouraged
in this direction would influence any case being fought on "marital rape," even in respect to
"women over 18 years of age," I have deliberately avoided discussing this part of the issue.
Considering that the situation of the female kid may be settled without addressing the
problem of privacy, I do not believe it is right to deal with this issue, which may have broader
repercussions.

Rather than using the term "void marriage," the current legislation refers to marriages
solemnised at a minor's age as "voidable" under Hindu and Muslim personal law. Both Hindu
and Muslim law allow for a delayed onset of puberty, albeit under Muslim law, this delay
expires once marriage is consummated.

The Law Commission has recently proposed that "marriages for both girls and boys below 18
years should be forbidden, that marriages below 16 be deemed invalid, and that marriages
between 16 and 18 be made voidable." The Law Commission has suggested making
marriages between minors legally invalid rather than simply voidable. According to Section
375 of the Indian Penal Code 1860, the minimum age for a woman to give her consent to a
sexual act is 16. As a result, the Law Commission has proposed criminalising having sexual
relations with a girl or even a wife who is less than 16 years old and lowering the legal age of
marriage to 18 years for both boys and girls.

In addition, Section 3 of the Act makes it clear that a child can choose to have his or her
marriage annulled if he or she believes it is invalid, and Sections 12 and 14 of the same Act
make it clear that a marriage between a minor and an adult is null and void if it is entered into
in violation of a court injunction.

While marriage is still highly valued by society, changes in the social structure have made it
more difficult to begin and sustain healthy relationships. For example, greater gender equality
has made it more difficult to satisfy both partners, and the fact that both partners now need to
earn a living has made it more difficult to maintain open lines of communication. The rising
costs of homes, weddings, and child care have prompted many to put off marriage, and
cohabitation has replaced dating as the social norm for many before tying the knot. The
uncertainties of contemporary relationships need the emergence of new institutions, such as
marital counselling and prenuptial agreements.

Neither the Dharmashasta nor Muslim law acknowledged the possibility of a remedy for the
restoration of marital rights. As expected, it appeared with the Raj. In mediaeval England, a
man's wife was treated like any other asset and he might sell her at will for a profit. This legal
concept, known as "restitution of conjugal rights," has its origins in this era. When a rape
happens inside the confines of a marital house, not only does it violate the woman's dignity
and self-respect, but it also degrades her to the position of a simple object used for sexual
enjoyment. An individual statute against marital/spousal rape, consistent with international
standards, is urgently required in India. In order to characterise rape that occurs during a
marriage, the phrase "marital rape" has been in use for quite some time. In this guide,
"partner rape" encompasses not just heterosexual partnerships but also homosexual ones,
bisexual ones, and transexual ones.

In its most basic form, privacy ensures that each individual is left alone inside a safe space of
their own choosing. However, one's independence is limited by her connections to others in
society. Self-determination and individual choice may be called into doubt in such
connections. Parts of social life that have an impact on one's independence are governed by a
web of state and non-governmental institutions. The protection of individual liberties
guaranteed by the Constitution is, in a sense, ongoing. Problems as they now stand need new
approaches. Similarly, a constitutional knowledge of the limits of individual liberty within the
framework of a social order has to be applied to new problems. The Court must provide
constitutional meaning to individual liberty in a globally linked society, a challenge made
more complex by the pervasive influence of information technology in every facet of modern
life. The Court must be mindful of the potential and threats to freedom in the digital
environment as we reconsider whether our constitution guarantees privacy as an essential
concept.

Feminism
Given that conventional marriage is a patriarchal institution, most feminists would likely
welcome its collapse. Divorce petitions are filed at a higher rate by women than men, which
may indicate that marriage is less successful for women than men. Radical feminists, on the
other hand, point out that women have not necessarily profited from the rise in divorce since,
after separation or divorce, 90% of children remain with their mother and single parent
households (mainly female) face greater rates of poverty and shame.

Perspectives on Marital Privacy from a Legal Perspective

Love and trust unite two people in marriage. Each partner is granted certain rights by this
institution, but if the social and legal organisation intrudes into the partners' privacy, the
courts must determine whether and to what extent this intrusion is legitimate. When the
husband in Rajalakshmi M. Bhuvaneshwari v. Nagaphomendar Rayala6 asked for phone
records of his wife with another man to show their extramarital affair, the woman refused.
The court ruled that her right to privacy must be protected and that her spouse does not gain
any undue privileges by tapping her phone. The court ruled in Sharda v. Dharmpal that there
are limits to the right to privacy, and thus it ordered both parties in this divorce case to submit
medical reports provided they were relevant to the proceedings and did not infringe on either
party's privacy under Article 21. Due to his impotence, the wife in Surjit Singh Thind v.
Kanwaljit Kaur8 demanded a virginity test presented as grounds for divorce. The court ruled
against the husband's request, citing Article 21 of the Indian Constitution, which states that a
woman has the right to "live with dignity," including the right to privacy. Therefore, the court
has been guarding marital privacy so far, but there are still certain sex equality issues that
haven't been addressed. Marital rape is still not illegal in India, thus this violation of her
sexual sovereignty persists.

The Freedom to Engage in Sexual Activity as a Woman

Which one should win in a confrontation between an individual's sexual sovereignty and the
legal marriage concept that stresses the obligation and entitlement to sexual privileges as the
moral aim of marriage? In India's traditional patriarchal society, males are seen as superior.
Those who study the philosophy of law believe that a marriage unites two people into a single
entity whose rights take precedence over those of any of its constituent parts. A man's
stronger sexual power always leads to an invasion of his wife's sexual autonomy. Even if the
Constitution guarantees each citizen the right to privacy and liberty, the woman's claim in the
area of marriage is still without any traction. This pits the husband's legally protected rights
over his wife's body against the woman's equal legal rights. The horrible crime of rape inside
a marriage is not yet criminalised in India. A woman is reduced to a slave, with no rights
whatsoever, with the simple tie of marriage. She has no choice but to give in to her husband's
sexual demands, even if she doesn't want to. Violating the law against rape is a serious
offence in India. If the spouse is the offender, then he is exonerated. Marriage norms establish
the man's superiority over his wife. The woman loses her status as a person before the law
and all of her individual legal rights, which the husband takes over in her place. In India, no
legislation has ever challenged the unjustified subordination of women's consent and freedom
to the requirement to cohabitate. Philosophers of law in India contend that criminalising rape
in marriage will be exploited by many people. However, they argue that this argument cannot
be used to justify the complete lack of criminal penalties. However difficult it may be to
prove a case of marital rape in court, the law must make such acts illegal in order to
safeguard women's right to control their own bodies in sexual matters. Any act of violence
against a woman is a failure on the part of the state to uphold its responsibility to safeguard
the rights of its citizens. Women's rights are violated when they are subjected to sexual
violence, and the fact that the perpetrator's name is known is not enough to justify dismissing
the crime.

RIGHT TO PRIVACY
When one is not being seen or bothered by someone who are not permitted to do so, it is
called privacy. Freedom of solitude is the condition of not having to share one's life with
anybody else, or the privilege of keeping one's private life and relationships hidden.

Having a right to privacy is defined as a "right to personal autonomy" in Black's Law

Dictionary. Personal autonomy, or the right to privacy, may be understood in this context as
the ability to make choices without external influence. You have the legal right to stop others
from utilising your name, likeness, etc. 1 His mental health, relationships with friends and
family, and sense of self-worth might all take a hit if he has to deal with unwarranted
intrusions into his private life.

The right to privacy implies the right to be "left alone," as defined by the Oxford Dictionary
of Law. A person has this right if he has the ability to choose his own means of subsistence
and to do so in a manner that does not subject him to the scrutiny or interference of others.
This includes the right to safeguard his physical integrity and the privacy of his relationships,
marriage, and reproduction. It also encompasses the right to privacy in one's home and place
of employment. As a result of legal rulings, the right to privacy also encompasses the right to
one's physical integrity and one's reproductive choices.

The Supreme Court's decision in the case of Mr. 'X' v. Hospital 'Z' defined a right as an
interest that is safeguarded and recognised by moral and legal principles, and the respect of
such an interest would constitute a legal obligation. To this end, people have a responsibility
to respect an individual's right to privacy by refraining from intrusions that are both needless
and excessive. One's legal rights may be protected against infringement by those who are also
legally obligated to respect those rights.

It's a cornerstone of the Indian Constitution and crucial to living a life of personal liberty. The
concept of privacy is multifaceted. Privacy in all its forms, including physical, intellectual,
behavioural, informational, and decisional, would be protected.

After the implementation of the Indian Constitution, the question of whether or not the right
to privacy is a basic right became the most hotly contested subject. The Indian Supreme
Court had a difficult time interpreting Article 21 of the Indian Constitution because to the
lack of a clause explicitly establishing the right to privacy as a fundamental right. The courts
in India have upheld the individual's right to privacy.

There have been cases brought before the Supreme Court of India concerning the recognition
of the right to privacy, including MP Sharma v. Satish Chandra and Kharak Singh v. State of
Uttar Pradesh, but both times the court has ruled against recognising privacy as a
fundamental right protected by the Constitution. However, in his dissenting judgement in the
Kharak Singh case, Justice Subba Rao acknowledged the importance of privacy as a
component of the right to personal liberty guaranteed by Article 21 of the Constitution of
India. After that, the Indian Supreme Court upheld the right to privacy under Article 21 in the
cases of Govind v. State of Madhya Pradesh, R. Rajagopal v. State of Tamil Nadu, and
People's Union for Civil Liberties (PUCL) vs. Union of India. The question of whether or not
privacy is a basic right was revisited in Justice K. S. Puttaswamy (Ret.) v. Union of India.
Here, the Central Government argued that Article 11 of the Indian Constitution does not
protect an individual's right to privacy since it does not include a clause explicitly recognising
such a right. On the other side, the petitioners argued that Article 21 of the Indian
Constitution implicitly protects their right to privacy. By accepting petitioner's argument, the
Supreme Court has established that privacy is a basic right on par with freedom of life and
expression, freedom of the press, and freedom of movement. Even if it is not explicitly stated
in the Constitution, it is nevertheless implied in the document. The Supreme Court of India
reversed its prior ruling in the case of M.P. Sharma v. Satishh Chandra (1954) and the case of
Kharak Singh v. State of Uttar Pradesh (1962), in which it had refused to recognise the right
to privacy under the Indian Constitution. The court said that there must be a legal justification
for any invasion of personal privacy. The central government was ordered by the court to
organise a committee to provide recommendations on the collection, storage, and processing
of personal data by both public and commercial entities. In this decision, the Supreme Court
of India did more than just clarify the status of the right to privacy in India; it also paved the
way for the further evolution of that right.

MARITAL RIGHT AND RIGHT TO PRIVACY

The term "marital rights" refers to the legal protections that married people have from third
parties. The right to maintain a household, to live with a partner, etc., fall under this category.
A husband and wife are considered a family unit after they tie the knot. The years spent
together as a married couple go through several phases. This first phase of marriage begins
after the couple has moved in together and begun fulfilling their marital duties. A wife's life
is made more simpler and more fulfilling by a decent and loving spouse. However, the risks
of divorce increase if either partner is irresponsible and not fulfilling their marital duties.
Most governments throughout the globe acknowledge the right to marital secrecy. Griswold
v. State of Connecticut challenged a statute that made it illegal for a couple to take
contraceptives to avoid unintended pregnancies on the basis that it violated their right to
privacy. The Supreme Court of the United States has ruled that a law prohibiting the use of
contraceptives is unconstitutional because it invades the privacy of marriage. It is generally
acknowledged that marital rights are subordinate to the right to privacy, despite the fact that
couples obtain certain rights against one other after marriage. In State v. Perez, the husband
had secretly recorded his wife in the bathroom while she was taking a shower. When the wife
discovered the tapes, she took legal action against her husband for violating her privacy. The
question at hand was whether one spouse has a right to anticipate protection from the other
spouse's secret videotaping of them when they are alone in a common restroom. A person is
guilty of a gross misdemeanour who secretly instals or uses any device for observing,
photographing, recording, amplifying, or broadcasting sounds or events through the window
or other aperture of a place where a reasonable person would have an expectation of privacy."
The court reached this conclusion because the wife had a reasonable expectation of privacy
from being surreptitiously videotaped by him while she was alone in their shared bathroom.

During the course of a healthy marriage, it is normal for the husband and wife to engage in
sexual activity. Cooperative behaviour between partners in a marriage is also necessary.
When engaging in a sexual act, one must have the approval of one's partner; failing to do so
might lead to emotional and bodily distress. The Indian Penal Code made sexual acts without
consent illegal under Section 375. In other words, engaging in sexual activity with a woman
without her permission is illegal. However, marital rape is not a crime in India, thus the
husband would not face criminal charges if he committed an act of non-consensual sexual
conduct with his wife. This violates women's right to bodily and sexual self-determination.

It's inevitable that having more kids will happen after being married. However, this is
acceptable only if the wife agrees to the pregnancy; if the husband or other family member
forces the wife to have a child, this violates the woman's reproductive autonomy. However,
although there are a number of laws in place to safeguard women's rights, such as the
Domestic Violence Act and the International Penal Code, these laws only address some
aspects of women's lives. They can't protect all women's needs, and in the guise of marriage
duty, women are tortured. In many cultures, woman is obligated to have sexual relations with
her husband and bear his children. There are situations when she is coerced into having a son.
Marriage is a holy institution, yet in the modern world, society has evolved and people's lives
have been impacted by a variety of technological advancements. Recently, the Supreme
Court made it clear that husbands do not have authority over their wives, and that instead,
marriage is a partnership built on mutual respect, support, and trust.

The Supreme Court has heard several cases on the protection of marriage and the right of a
woman to have a dignified life. After the Justice K. S. Puttaswamy Case, in which the right to
privacy was recognised as basic right under Article 21 of the Indian Constitution, the courts
have been inundated with issues involving the marriage rights and the right to privacy of
women. When one's privacy is invaded, it shakes their confidence and hurts how they feel
emotionally. Matrimonial rights and the right to privacy need a look at the current legal
method to determine their actual standing.

JUDICIAL APPROACH

Virginity Test

The purpose of the "virginity test" is to determine whether or not a lady has ever had a sexual
encounter. The matter before the Punjab-Haryana High Judge in Surjit Singh Thind vs.
Kanwaljit Kaur was whether or not a court may issue an order for a woman's virginity test in
the context of a divorce case. Husband's argument was shot down by the High Court, which
noted that the petition was submitted by the wife on the grounds of impotence of her husband
and that there are many other methods to show the impotence of husband. Even if the wife's
virginity could be proven, it wouldn't mean the couple had slept together. Since compelling a
woman to submit to a medical examination in order to determine whether or not she is a
virgin violates her right to privacy and personal dignity as guaranteed by Article 21 of the
Indian Constitution, the court declined to issue the requested order.

It is against the law for a husband to listen in on his wife's conversations.

Cell phones and landlines are still widely used to keep in touch with friends and family. Most
phone conversations are conducted under the assumption that no others may overhear the
dialogue. They may reveal sensitive facts, feelings, and emotions over the phone. It would be
a violation of the rights of the others if these talks were recorded by someone who did not
have permission to do so. It's possible that this kind of unnecessary meddling may disrupt her
daily life. In the case of Rayala M. Bhuvaneswari v. Nagaphanender Rayala before the
Andhra Pradesh High Court, the issues of whether it would be legitimate or not, whether it is
intrusion of her right to privacy or not, and what is the evidential value of such recorded talks
were questioned. According to the court, the husband secretly taped his wife's conversations
with her parents and acquaintances. There has been a blatant violation of the trust and
confidence that are the bedrock of every marriage by the husband's actions. It is also against
the law for a husband to record his wife having a private conversation with her parents or
friends and then use that recording in a legal proceeding against his wife. This is because the
husband has broken the trust between them, which is a fundamental tenet of marriage. In
addition to being against the law, relying on such evidence would be a violation of the wife's
right to privacy, hence the husband should be barred from doing so. The court ruled that the
husband's secret recording of his wife's conversations was an invasion of her right to privacy
and that any evidence obtained via such methods would be inadmissible even if shown to be
accurate. The court ruled against issuing a warrant requiring an expert's review of the
recording.

Some rights are granted to each spouse and some obligations are imposed by marriage, but
they are subject to the rights of each spouse. Every citizen has the right to live with dignity
and privacy, and if a husband does something to violate that right, the wife has the right to
seek legal justice against him or anybody else who committed the wrongdoing.

Right to Privacy and Privileged Communications

With the Indian Evidence Act of 1872 in place after the wedding, the newlyweds are afforded
some privacy with regard to communications between themselves that took place throughout
the course of their marriage. A witness cannot be forced to testify on some subjects, and even
if he is eager to do so, he will be barred from doing so under certain circumstances.
Confidential discussions on these kinds of issues are known as privileged communication.
Section 118 of the Indian Evidence Act of 1872 states that anybody may testify unless the
court rules otherwise based on the witness's inability to comprehend or respond reasonably to
questions. According to Section 120, in a civil procedure, the parties themselves are
considered competent witnesses. Consequently, both the plaintiff and the defendant are
permitted to testify against the other19. Similarly, the spouse of a defendant in a criminal
case is considered a reliable witness.

However, in some circumstances, it is against the policy of law to divulge communications

even if the persons in possession of them choose to do so. Under the Indian Evidence Act of
1872, section 122, a husband and wife's private conversations cannot be revealed. Because
marriage fosters trust and trust fosters transparency of heart and emotions, it is one of the
greatest illustrations of a married couple's right to privacy. A married individual may now tell
their partner the truth about anything. As a result, there shouldn't be any danger of disclosing
such information; yet, there are several exceptions to this rule. A wife's testimony on her
husband's actions on a certain day might be taken very seriously. Any conversation between a
husband and wife that is seen or overheard by a third party may be used as evidence in a
court of law. A spouse may testify as to the existence of a privileged communication if they
have the approval of the person to whom the communication was made or the consent of the
party's agent in interest. In certain cases, it may be allowed in court to play back a tape of a
discussion between a husband and wife, but if done so without the knowledge of one of the
parties involved, the tape will be excluded. In a lawsuit between spouses or in procedures in
which one spouse is prosecuted for an offence he has committed against his spouse, the
woman may divulge any communication made to her by the husband and which is relevant to
the topic at hand.

When a spouse in a divorce case must submit to a medical exam

The capacity of the spouses to carry out their duties as husband and wife is a major factor in
the success of a marriage. It's going to be tough to have a happy married existence if one of
you can't do your weight around the house.

Insanity, impotence, venereal disease, and other similar conditions are reasons recognised by
law for a divorce judgement or an order declaring a marriage null and void. One who brings
such a lawsuit must bear the burden of proving the other party's inability. He may provide
evidence in support of his case, and may even seek a medical evaluation from the court.
Because of the potential implications for a person's privacy and sense of worth, the subject of
when someone may be compelled to do a self-examination is very contentious.

Sharda v. Dharmpal24 dealt with the question of whether or not a spouse in a divorce case
may be made to submit to a medical examination. The court's ruling in this case is a novel
approach to evaluating the constitutional protection of marital privacy. For this divorce, the
husband relied on sections 12(1)(b) and 13(1)(iii) of the Hindu Marriage Act, 1955.He has
also requested that his wife be examined by a doctor on the grounds that she is mentally unfit
and cannot carry out her marital duties. Concerning the scope of a spouse's right to privacy in
marriage, the Supreme Court was requested to rule on whether or not a spouse may be
subjected to a medical examination when a divorce petition is filed on the grounds of
physical incapacity. The court indicated that it would be extremely difficult to reach a
judgement in marital situations when a petition has been filed for awarding a decree of
divorce on the premise of any physical disability, such as impotence, schizophrenia, etc.,
without the medical examination of a party. If this happens, a patient has the right to refuse
medical treatment on the grounds of privacy. If the court accepts his plea, it will be more
harder to reach a verdict. Such situations call for a coherent interpretation of relevant legal
laws. The Article 21 right to privacy is not absolute but is susceptible to certain constraint,
the court said. Some statutory rights may be rendered meaningless if a compromise cannot be
reached between competing interests. A medical examination of a party may be ordered by
the court in marital matters, and this does not violate Article 21 of the Indian Constitution, as
the court has explained in its clarification of the situation. But there should be adequate
evidence before the court and the petitioner should have a prima facie case in his favour
before such an order is given. Taking into account the aforementioned elements The court
may have a negative view of the individual who has been ordered to undertake a medical
examination but who refuses to do so.

In this context, "reproductive choices" is a woman's decision on whether or not to have

children. The case of Suchita Srivastava & Anr vs. Chandigarh Administration (2009) dealt
with a distinct matter. It concerned an unconsented-to pregnancy abortion and the victim's
right to keep her pregnancy. A pregnancy cannot be aborted against a woman's choice, the
court said. Because she is a human person with the same right to be treated as any other
human being and the same entitlement to all human rights, a woman's permission matters in
all circumstances of pregnancy termination. Article 21 of the Indian Constitution guarantees
the right to life and personal liberty, which includes the right to privacy, and the court has
ruled that women have the freedom to make reproductive choices. To protect her right to
privacy, no one else may force her to have children. The statue must be in agreement for it to
happen. Having children is a personal choice, and it is up to the individual woman to make
that choice. Because woman may make such decision with complete autonomy according to
Article 21 of the Indian Constitution.

Regaining Your Sexual Independence

In the case of T. Sareetha v. T. Venkata Subbaiah27, the Andhra Pradesh High Court was
asked to weigh in on the issue of sexual autonomy in India. Article 9 of the Hindu Marriage
Act of 1955, which allows for the restoration of conjugal rights, was challenged on the
grounds that it violated the right to freedom of religion and thought provided by Article 21 of
the Indian Constitution. The court ruled that Article 9 of the Hindu Marriage Act is
unconstitutional because it violates the right to life and personal liberty, and that the remedy
of restitution of conjugal rights provided for by Article 9 is a savage and barbarous remedy
because it violates the right to privacy and human dignity guaranteed by Article 21 of the
Constitution. Because it violates a woman's dignity and personal liberty to force her to remain
with her husband against her desire, Section 9 is unconstitutional. The right to one's own
personhood is something every woman should have. The court went on to argue that the
restoration of marital rights ruling violates people's right to privacy. Also, it makes it harder
for women to make decisions about their own bodies and lives. Contrary to the judgement of
the Andhra Pradesh High Court, the Dehli High Court maintained the legitimacy of Section 9
of the Hindu Marriage Act in the case of Harvinder Kaur v. Harmander Singh28. In the case
of Saroj Rani v. Sudarshan Kumar Chandha29, the Supreme Court was again asked to rule on
whether or not Section 9 violated the right to privacy, and it did so again, this time finding
that it did not.

Any woman has the legal right to make her own decisions about her body and her
reproductive health, according to case law dating back to the year 30. On the basis of a
violation of fundamental right granted guaranteed under Article 21 of the Indian Constitution,
a petition was recently filed in the Supreme Court challenging the constitutionality of Section
9 of the Hindu Marriage Act 1955 and Section 22 of the Special Marriage Act 1954, which
provides for restitution of conjugal rights. The petitioner argued that the provision relating to
restitution of conjugal rights had been abolished in the United Kingdom in 1970 and the idea
that a woman is the chattel of her husband was unacceptable, calling the judicially mandated
restitution of conjugal rights a "coercive act" on the part of the State. Article 21 of the Indian
Constitution31 protects individuals' sexual and decisional autonomy, right to privacy, and
dignity. Section 9 of the Hindu Marriage Act violates this provision.

Marital Rape

All forms of sexual assault against women including nonconsensual intercourse are
considered rape under Section 375 of the Indian Penal Code (IPC). However, section 375
does not apply to nonconsensual intercourse with a wife who is beyond the age of 18.
According to the rules of the Indian Penal Code, sexual assault committed by a man against
any woman constitutes rape, but when committed by a husband against his wife, it is not
considered sexual assault because of the couple's marital status. A woman's right to privacy
includes the protection against unauthorised physical contact with her body. She is entitled to
her own sexual autonomy. She has the freedom to make decisions about her own sexuality
without interference from anybody else33. The fundamental components of our identities are
safeguarded by the right to privacy. In the context of privacy, control plays a crucial role.
Each person has the autonomy to choose what is best for herself. The exception for domestic
violence against women undermines her autonomy35. To quote from Nimeshbhai Bharatbhai
Desai v. State of Gujarat, "unwanted intercourse by a man with his wife gained by force,
threat of force, or physical assault, or when she is unable to provide permission" is how the
High Court of Gujarat defines marital rape. The physical and sexual exploitation of a woman
by her husband is considered a kind of domestic abuse known as "marital rape"36. Most
nations have made it illegal to commit a felony against a spouse. It is illegal in the United
States of America. The Sexual Offences Act, 2003 makes it illegal to commit rape against a
spouse in the United Kingdom. It doesn't matter whether the victim is married to the accused
or not; Section 1 of the Sexual Offences Act, 2003 makes it illegal to "penetrate the penis into
the vagina, anus, or mouth of the person" without their agreement.

The question before the Supreme Court of India in Independent Thought v. Union Of India
(2017) was whether or not a husband's sexual intercourse with his wife, who is a girl between
the ages of 15 and 18, constitutes rape. The court ruled that the provision of the exemption in
section 375 of the Indian Penal Code imposes an artificial distinction between a female child
who is married and one who is not. This practise is sexist and counterproductive. Article
15(3) and Article 21 of the Indian Constitution state that it is not in conformity with the law
to treat married and unmarried women differently if they are in the same situation. It's also an
attack on women's right to choose how and when to have children. The court ruled that rape
occurs whenever a man has sexual contact with a girl under the age of 18, regardless of her
marital status. The nature of a husband's reluctant sexual intercourse with his wife between
the ages of 15 and 18 has been defined to some degree by the court in this case, but the nature
of a husband's unwilling sexual intercourse with his wife after she becomes 18 is still unclear.

According to Article 21 of the Indian Constitution, everyone, regardless of age, has the right
to be treated with respect and decency at all times. However, a husband's unwilling sexual
intercourse with his wife is not included in the definition of rape as specified in section 375
of the Indian Penal Code. Not criminalising marital rape in the modern period is unacceptable
since it violates the right to bodily autonomy guaranteed to all citizens of India, regardless of
gender. The institution of marriage is not an excuse for sexual assault. There should be no
lesser rights than bodily autonomy38. Rappage in a marriage relationship should be treated
the same as any other kind of rape. Contrary to constitutional guarantees that guarantee
women's equality and liberty, the failure to criminalise marital rape is a serious gap in the
law.

CONCLUSIONS

The Supreme Court's decision to recognise the right to privacy has sparked a fresh line of
inquiry into the topic of marital rights.
A person's right to privacy is not infringed upon just because they are married and have
acquired certain rights against their partner. Conversely, one's right to privacy is not
inviolable. This freedom is subject to reasonable limitations in the sake of public health,
safety, public order, national security, etc. The right to privacy is recognised as a basic right
under Article 21 of the Indian Constitution by means of court interpretations, as shown by a
review of the case laws on various problems. The right to privacy should serve as a yardstick
by which to measure the constitutionality of any legislation affecting marital rights.
In addition, people no longer hold to the archaic view that a woman is nothing more than the
property of her husband. Since India's independence, there has been a dramatic shift in the
position of married women in society. The idea that a woman must be treated as the inferior
chattel of her husband has no place in a contemporary marriage. Unfortunately, certain areas
of women's rights continue to be ignored. Marital rape is still not illegal under Indian law.
The legal standing to sue for the restoration of marital rights is hazy at best. It seems that we
are at the nascent stage of the evolution of the right to privacy, and in the future we will
witness a variety of different interpretations of right to privacy, which may alter the whole
notion of conventional marriage. The ability to receive maintenance from the husband and the
right to inherit the other spouse's property may also be impacted. The right to privacy is
fundamental to one's growth as a human being, both physically and psychologically. It might
be argued at this point that the Indian Constitution needs a new section specifying the right to
privacy, one that provides a clear and unambiguous definition of the concept's scope. It is
important to define the right to privacy and include the conditions under which it may be
limited. Changes should also be made to the criminal law, and a new, all-encompassing code
should be enacted for sexual offences. This code would not only describe the crimes, but it
would also create a new, specialised process for the trial of cases involving sexual offences
against women. If a woman is raped in any way, the perpetrator must be brought to justice.
Existing laws are insufficient since they do not address fundamental concerns like women's
agency in reproductive decisions (whether to have children, whether to use contraception,
etc.) and sexuality (including freedom to choose whether or not to have children). A call to
action is required to raise awareness of these problems and maybe save women from their
age-old suffering41. There has to be a greater emphasis on women's empowerment and
advancement in emerging nations like India, where the proportion of women in the
population is falling.
 CHAPTER IV

PHONE RECORDINGS IN MATRIMONIAL MATTERS – LEGAL DYNAMICS

Kinds of Spousal privileges

There are two categories of spouse benefits:

(i) The privilege against adverse spousal testimony states that a spouse cannot testify against
their partner for the purpose of incriminating them.
(ii) Private marital conversations are protected by the Confidential Communication Privilege,
therefore neither partner may disclose them to the other.

Both are associated with incompetence under common law, however the first is
disqualification while the second is incapacity. There used to be no difference between these
two protections, but nowadays a witness spouse might claim the unfavourable spousal
testimony privilege.
The first of them, the unfavourable spousal testimony privilege, only applies while the
marriage is still legally binding and does not survive its termination in any way (divorce,
legal separation, etc.). A spouse, however, may still enjoy the privilege of private contact
even after the couple has separated or divorced.17

Need of Spousal Privilege

Marriage is a private union between a man and a woman, and it's important that they be
allowed to maintain their privacy for the sake of their relationship. Having one spouse testify
against the other may cause a breakdown in trust within a family and ultimately the family
unit as a whole. When there is no trust between a husband and wife, the family unit collapses
and society descends into anarchy.

A concrete example is the most effective means of elucidating this scenario. A surgeon's
carelessness causes a patient's death during surgery. While no one else knew about it, the
husband told his wife about what happened as soon as he got home. At some point in the
future, the wife tells one of her friends about this, and word of it spreads to the victim's loved
ones. The victim's family has filed suit and wants to call the doctor's wife as a witness. The
issue here is whether or not the doctor's wife may testify as a witness. This is knowledge that
a husband confided in his wife about in private; if allowed to become public, it would destroy
their marriage and family bonds. When one partner in a couple is paranoid that the other may
spill the beans to others and get them both in hot water, communication breaks down. Once
again, husband and wife may be privy to one other's deepest secrets, and a forced confession
from one might destroy the other's career and reputation and put a strain on their marriage.

The criminal law of virtually all nations does not accept spousal evidence in criminal
proceedings, maybe because such scenarios might happen even in things which are relevant

17 United States v. Lilley, 581 F.2d 182, 189, Currently, however, the adverse spousal testimony privilege is
available to the witness spouse as long as he or she remains married to the defendant, while the confidential
communications privilege is continuously available to both spouses even after divorce or separation of the
spouses so long as the spouses engaged in the conversation during the marriage. Only the spouse making the
confidential communication may invoke the confidential communications privilege, whereas only the witness
spouse may elect to assert the adverse spousal testimony privilege. In fact, a witness spouse may now offer
adverse testimony at trial over the objection of the defendant spouse. In contrast, a defendant spouse may
prevent the admission of the voluntary testimony of his or her spouse if the testimony pertains to the defendant's
confidential marital communications. Courts generally have applied the confidential communications privilege
to spoken words or written exchanges, but some courts extend the privilege to acts performed privately by a
spouse in the presence of the other spouse. Courts presume the private communications between spouses to be
confidential and thus within the ambit of the communications privilege unless contrarily proved.
to the couple's day-to-day lives. It is crucial for the husband and wife to be able to trust each
other in order to keep their marriage together.

The court's ability to force one spouse to testify against the other would be undermined if
privileges are granted under these conditions. If one spouse is granted privileges in such a
situation, that person is protected from having to testify against the other.

If one partner testifies against the other, the other might go to jail, which would be
humiliating and could shake the couple's marriage to its roots. Therefore, a communication
between spouses that is done in the utmost confidence and trust is protected by marital
privilege and cannot be used as evidence in a legal proceeding. The following are the key
aspects of marital confidentiality in communication:18

(1) There must have been an agreement at the outset that the information would not be
shared.
(2) this aspect of secrecy must be crucial to the continued and mutually satisfying
functioning of the relationship between the parties.
(3) Thirdly, the relationship must be one that society as a whole agrees should be actively
encouraged.
(4) When determining whether or not to disclose communications for the purpose of
proper litigation disposal, the harm that would result to the relationship must
outweigh any potential benefits.

It was claimed that the reason for the spousal communication privilege was so that marital
discord could be avoided and family unity could be fostered, and also because of the natural
aversion to the thought of convicting someone based on the evidence of his or her husband.
The primary justification for the confidentiality of marital conversations was the need to
protect the privacy of that relationship. The significance of happy marriages to society is
reflected in the principle that underpins the protection of private communications. 19

Duty of Compulsion to be a Witness

18 John Henry Wigmore, Evidence in Trials at Common Law, 2285 (John T. McNaughton ed., rev. ed. 1961).
19 ―The Spousal Testimonial Privilege After Trammel v. United States‖, 58 DEN. L. J. 357, 369 (1981)
All nations, but especially those that follow the English Common law tradition, hold
witnesses in the highest regard and consider oral testimony to be the most reliable form of
evidence. Accordingly, if a person has knowledge of the claimed occurrence, they must
testify as a witness in the lawsuit. The law requires anybody who has been served with a
court summons to appear in court and testify as soon as possible. A warrant may be issued to
force the witness's appearance in court if he does not show up. For this reason, courts have
always had the authority to compel witnesses to appear before them. Whenever a witness is
needed, the witness must appear in court. Starting from this premise, a variety of deviations
have emerged throughout time. This is a point emphasised by Robert Cassidy. He claims that
witnesses must be called as evidence in court because juries must believe the words of those
who were there. However, there were numerous exceptions made because of the difficulty of
this requirement.20

Critics claim that this need to testify against one's spouse may hinder good communication
between partners since one partner may be afraid to share the information for fear of
repercussions.

Origin and History of Spousal Privilege

Spousal privilege is a well-established principle in English common law. Bent v. Allot74 was
the first time this idea was acknowledged by the common law courts. This case marks the
first time a court ruled that a defendant has the right to prohibit his wife from testifying
against him by asserting marital privilege. The court based its ruling on the idea that a
husband and wife constitute a single person in the eyes of the law and hence cannot provide
testimony against one othThe biblical teaching that "therefore a man should leave his father
and mother and hold tight to his wife, and they shall become one flesh" (Gn. 2:19) plays a
significant role in this.21

Christian belief thus holds that the husband and wife are essentially one person. This is
further confirmed in Ephesians 5:25, which reads, "Husbands, love your wives, just as Christ
loved the church and gave himself up for her, that he might sanctify her, having cleansed her
by the washing of water with the word, that he might present the church to himself in

20 Ibid.
21 Comments, ―Developments in the Law—Privileged Communications‖, 98 HARV. L. REV. 1450 - 1455
(1985)
splendor, without spot or wrinkle or any such thing, that she might be holy and without
blemish."

Husbands, in the same manner, should love their spouses as much as they love their own
bodies. To love one's wife is to love one's self. As Christ did the church, no one ever loathed
his own body but instead fed and cared for it.22

Common law ideas of monogamy and marriage as an exclusive union between the husband
and wife trace their origins to the Bible and the morals that existed under Christianity.
Spousal privilege, however, is not as sacred as it previously was, even under common law.
The original clarity of the idea has faded with time, and now a variety of caveats might be
made in this regard.

Early on in the development of marital rights, the unfavourable spousal witness privilege
included any and all testimony a spouse may provide for or against their partner. 23 A party's
evidence in a matter in which the party has an interest is disqualified under common law, and
this is also the rationale for the unfavourable spousal testimony privilege. 24 Courts also
disregarded testimony from spouses in cases involving domestic disputes because the
common law believed them to be a single unit.25

Spousal Privilege in United States

The ruling in Stein v. Bowman26 established the principle of spousal privilege in the United
States of America. This perspective persisted until 1930, when the Supreme Court finally
adopted a more expansive one in Wolfie v. United States.27

22 Ephesians 5:25-33 (The Holy Bible)

23 Funk v. United States, 290 U.S. 371
24 Trammel v. United States, 445 U.S. 44 (1980)
25 Ibid.
26 38 U.S. 209 (1839) - in this case, the prosecution introduced as evidence a widow's deposition that her
husband had accepted a bribe. While recognizing various exceptions to the marital privilege, the Court noted
that the privilege against adverse spousal testimony protected domestic relations from public exposure and
preserved family peace. The Court concluded that the privilege applied even though the witness' husband was
deceased and there was no marriage to preserve.
27 291 U.S. 7 (1934), The Court recognized that federal courts are free to interpret witness competency rules
based upon evolving common-law principles. Thus, Wolfie enabled federal courts to reevaluate periodically the
validity of the marital privilege. Wolfie formed the basis of Rule 26 of the Federal Rules of Criminal Procedure.
Wolfie and the Federal Rules of Criminal Procedure opened the door for a split to develop between the circuits
over a defendant spouse's ability to bar a witness spouse's adverse testimony.
As a result of this ruling, the courts in the following instances in the United States have
handed down their respective verdicts:

i) In Funk v. United States – The Supreme Court of the United States, in Funk v. United
States,28 overruled a lower court's judgement that a person was incapable to testify on behalf
of that person's spouse. In the case of United States v. Walker, the woman told the court
everything her husband had ever told her, both during their courtship and after they were
married. However, it was maintained that such disclosure is exceedingly harmful and, as a
matter of existing legislation, such information was kept secret. The judge ruled that the
witness's testimony cannot be used as evidence in legal proceedings. But the court decided
that spousal rights should be limited because of the competing interests at play.29

(ii) Yoder v. United States, The court ruled that such legislation was unnecessary and should
be repealed because of changing times. The court found that the extent to which these
advantages need to be acknowledged is a contentious issue, even if they are not outright
eliminated. The court ruled that the woman might testify against her husband and said that the
law should be changed to allow such testimony.30

(iii) In Brunner v. United States, the court reaffirmed its previous rulings that it is improper
for one spouse to testify against the other.31

iv) Hawks v. United States - The court again provided a dissenting opinion and ruled that
one spouse might testify against the other.32 The Supreme Court overturned a lower court's

28 290 U.S. 371 (1933), - the court abolished the longstanding common-law doctrine that prevented a witness
spouse from testifying for his spouse. In Funk, the defendant sought to admit on his behalf the testimony of
defendant's wife in an effort to reverse the defendant's conviction for conspiring to violate a prohibition law. The
Supreme Court in Funk asserted that even if Congress passed no applicable legislation, the Court could repeal
any common-law rule by using the criteria of "reason and experience. The Court reasoned that the function of
all rules of evidence is the ascertainment of the truth and that the common law is not static, but molds itself to
changing circumstances. Courts, therefore, should make continual determinations as to whether an evidentiary
privilege still serves the policy which underlies the privilege. The Funk Court noted that justifications for the
marital privileges change with time and with society's changing needs . The Funk Court stated that the law of
the marital privileges, therefore, must change if the rationale underlying the privileges changes. Furthermore,
the Court in Funk explained that changes in evidentiary law should be premised on reason and on the
continually enlightening educational device of experience. Funk thus commenced an ongoing analysis to test the
viability of the marital privileges.
29 109 U.S. 258 (1883)
30 80 F.2d 665 (10th Cir. 1935)
31 168 F.2d 281 (6th Cir. 1948)
32 249 F.2d 735, 736
ruling that would have permitted the wife, a self-proclaimed prostitute, to testify against her
husband.33

(v) Wolfie v. United States was yet another U.S. case to uphold the protections afforded to
spouses.34

(vi) United States v. Van Drunen , the Supreme Court affirmed the importance of mutual
trust in marriage and reaffirmed its belief in the primacy of marriage. 35

(vii) In Blau v. United States, for example, the husband learned his wife's whereabouts
through a private conversation and then refused to reveal the information, citing the spousal
communication privilege36.
33 Ibid. The Hawkins decision reiterated the Funk and Wolfie holdings which held that the criteria of "reason
and experience" controlled the evolution of the marital privileges. The Hawkins Court found that the common-
law justification for the adverse spousal testimony privilege of fostering family harmony was still viable. The
Court in Hawkins refused to abolish or modify the adverse spousal testimony privilege. While the Hawkins
Court did not advance the development of the marital privileges, the Court did not stifle the evolution of the
marital privileges but left the privileges susceptible to change should the Court decide to abolish or modify the
adverse spousal testimony privilege in the future.
34 291 U.S. 7 (1934) - the Court recognized that federal courts are free to interpret witness competency rules
based upon evolving common-law principles. Wolfie enabled federal courts to reevaluate periodically the
validity of the marital privilege. Wolfie formed the basis of Rule 26 of the Federal Rules of Criminal Procedure.
Wolfie and the Federal Rules of Criminal Procedure opened the door for a split to develop between the circuits
over a defendant spouse's ability to bar a witness spouse's adverse testimony. At least three circuit courts
recognized a defendant spouse's privilege. The court thus reaffirmed the Funk ruling, holding that federal courts
should interpret common-law evidentiary principles in the "light of reason and experience. The Wolfie Court
dealt solely with the confidential communications privilege. The principal issue before the Supreme Court in
Wolfie was the admissibility of a statement in a letter from a husband to his wife. 8 The accused husband
asserted the confidential communications privilege in order to prevent admission of the incriminating statement
into court. The Supreme Court noted that courts presume that spouses intend private marital communications to
be confidential. The Court, however, did not honor the communications privilege since the prosecution offered
the statement through the testimony of the accused's stenographer who dictated the letter. The Wolfie Court
observed that the confidential communications privilege protected marital confidences essential to the
preservation of the marriage. Nevertheless, the Court in Wolfie explained that marital communications made in
the presence of third parties are not privileged since the communications are not considered confidential. Since
the communication transpired in the presence of the stenographer, the communication was not confidential, and
the Court allowed the admission of the stenographer's testimony.
35 501 F.2d 1393 (7th Cir. 1974) – In this case the government indicted the defendant for knowingly
transporting an alien into the United States. The defendant subsequently married the alien and asserted the
adverse spousal testimony privilege to prevent the defendant's wife from testifying against the defendant. The
Seventh Circuit denied defendant the adverse spousal testimony privilege stating that "collusive marriages" do
not warrant the protection of the privilege. The Van Drunen court explained that defendant's marriage did not
contain the rehabilitative aspect that worthwhile marriages possess. The rehabilitative aspect that the Seventh
Circuit mentioned in Van Drunen is indicative of a situation in which the marriage rocked by the criminal
activity of one's spouse is still worth preserving, since the marriage still provides comfort, solace, and tranquility
for the spouses.
36 340 U.S. 332 (1951) - The Blau Court reasoned that the husband obtained knowledge of his wife's location
through marital communications. 67 Furthermore, the Supreme Court noted that courts resume the
confidentiality of private marital communications. 68 Since the government failed to rebut the presumption of
confidentiality, the Blau Court honored the confidential communications privilege by refusing to compel the
(viii) Trammel v. United States, The Federal Courts established a limited exception to this
rule, the "joint participation exception."37

Because of the joint involvement exemption, a spouse who testifies against their partner
cannot be silenced by using marital rights if they were both involved in the illegal activity.

In this instance, the court made it clear that a modification of this exception and the joint
participation exception was warranted. As a result, the court upheld the spouse's claim of
adverse testimony privilege while rejecting the defendant's claim of privilege. As a result, an
exception was made for a spouse who serves as a witness. The court did emphasise that the
spouse who would be testifying should be given the option of testifying or claiming
unfavourable spousal privilege and remaining quiet voluntarily. The Court refrained from
completely eliminating the testimonial privilege, however, and confirmed its contemporary
basis of protecting marital peace.

In United States v. Keck, it was decided that courts may take into account joint involvement
in certain cases, expanding the scope of the notion further.38

witness husband to testify.

37 445 U.S. 40 (1980) – In this case, the Government indicted defendant Otis Trammel for importing heroin and
for conspiring to import heroin. The Government agreed not to prosecute Trammel's wife if she testified against
Trammel. Mrs. Trammel testified, and defendant Trammel asserted the adverse spousal testimony privilege. The
district court denied Trammel's claim to the adverse spousal testimony privilege, but did not allow into
admission testimony concerning confidential communications between Trammel and his wife‘s. The United
States Court of Appeals for the Tenth Circuit invoked the joint participation exception against the adverse
spousal testimony privilege to admit Mrs. Trammel's testimony. The United States Supreme Court, however,
concluded that "reason and experience" no longer justified a defendant's privilege to bar the voluntary adverse
testimony of the defendant's spouse. The Trammel Court, therefore, limited the application of the joint
participation exception to the adverse spousal testimony privilege by vesting the right to claim the adverse
spousal testimony privilege in the witness spouse only. In addressing the adverse spousal testimony privilege,
the Trammel Court examined the Hawkins decision and noted that Hawkins set no absolute doctrine governing
the marital privilege, but rather left open the possibility of change. 5 In Hawkins, the Court refused to abrogate
or modify the adverse spousal testimony privilege because the privilege culminated centuries of common-law
evolution. The Supreme Court in Trammel, however, discerned a trend in state law to revoke from the accused
the privilege to prevent the accused's spouse from testifying against the accused. Furthermore, the Court in
Trammel noted that Congress did not intend to stifle the development of the marital privileges in passing Rule
501 of the Federal Rules of Evidence. The Court stated that Congress' purpose was to provide a flexible set of
evidentiary rules. In addition, the Trammel Court explained that the goal of the adversarial system is the
ascertainment of truth and that ordinarily a court has the right to hear all evidence. The Court stated that courts
should construe the testimonial privileges narrowly and strictly since testimonial privileges prevent the
admission of evidence and consequently burden the quest for truth.
38 172 US 434 (1899), when no harmony remains in a marriage, compulsion of adverse spousal testimony is
justified; and courts should apply the joint participation exception to the adverse spousal testimony privilege
when spouses jointly participate in a crime and the witness spouse refuses to testify. Some courts still apply the
joint participation exception to the confidential communications privilege.
Since then, several courts' rulings on the subject of marital communication privilege have
diverged, further complicating matters. Still, there were several instances when experiments
proceeded despite being illegal in many states.

The Supreme Court of the United States, in Funk v. United States, overturned a lower court's
judgement that a person was incapable to testify on behalf of their spouse.39

The reasoning presented in Van Drunen was deemed inadmissible in In re Grand Jury
Subpoena United States.40

The court reiterated its holding in United States v. Ammar, upholding its conclusion in
Appeal of Malfitano, that the joint participation exemption undermines the core reason of the
testimonial privilege.41

Federal Marital Privileges in Criminal Context

39 290 U.S. 371 (1933)

40 755 F.2d 1022 (2d Cir.), it was observed that the Seventh Circuit's rehabilitative argument in Van Drunen
was invalid since the rehabilitative aspect of the marriage upon the spouses was not a facet of the common-law
justification of adverse spousal testimony privilege. The Second Circuit, therefore, reasoned that a marriage's
retaining no rehabilitative aspect does not warrant the imposition of the joint participation exception to the
adverse spousal testimony privilege. In this case, the defendant spouses were involved in an alleged conspiracy
to leak national defense secrets to a foreign government. The wife refused to testify before the grand jury
investigation concerning the defendant husband's indictment. The wife asserted the adverse spousal testimony
privilege, believing that her testimony might implicate the husband. The lower court jailed the wife for contempt
of court." The Second Circuit stated that the Supreme Court in Trammel undermined the Seventh's Circuit's
argument in Van Drunen that preservation of family harmony does not justify the recruitment of a spouse for
criminal activity. The Second Circuit explained that after Trammel, a person seeking the help of one's spouse in
criminal activity could not be sure that the spouse would not testify voluntarily against that person." , 6
Furthermore, the Second Circuit refused to implement the joint participation exception to the adverse spousal
testimony privilege and thus compel the witness spouse to testify. The Second Circuit in Grand Jury Subpoena
correctly applied the adverse spousal testimony privilege since the wife demonstrated an unflinching devotion
and loyalty to the husband." When no rehabilitative aspects remain in a marriage, however, the marriage is not
worth protecting since the marriage offers no harmony, tranquility, or sanctity to the spouses.
41 464 U.S. 936 (1983) - the Third Circuit heard an appeal from the defendant's conviction for conspiring to
import and distribute heroin. 47 The district court allowed the defendant's wife to testify against the defendant,
revealing private marital communications.' 48 The Third Circuit affirmed the district's court's holding by
invoking the joint participation exception to the confidential communications privilege. However, the Ammar
court noted that the confidential communications privilege specifically protects marital communications only.'
52 The Third Circuit, therefore, concluded that while the marriage of joint criminal venturers might deserve
protection from the adverse spousal testimony privilege, the marital communications made during the
commission of a crime do not warrant protection from the confidential communications privilege. the Third
Circuit implicitly held that the willingness of a spouse to testify against his or her spouse was indicative of a
marriage not worth preserving.
Approximately 400 years ago, one spouse had the right to restrict the other spouse from
revealing a message made to him or her by the other spouse. 42 When one partner in a
marriage commits a crime against the other, the law makes an exception to the advantages of
marriage.

It was decided in United States v. Neal that marital privilege does not apply when one spouse
reveals the criminal offence of the other.43

The court noted in United States v. Ammar that marital privilege should not be used to shield
criminal records from public view.44

A woman is not a credible witness in criminal proceedings, and she cannot testify either for
or against her husband. U.S. courts have also ruled that a spouse cannot represent their
partner in court due to the presumption of identification. Tinsley v. United States, however,
cast doubt on this perspective.100

The Supreme Court's ruling in Jin Fuey Moy v. United States, which said that no witness will
be excluded in civil cases because he is a party or interested in the issues examined, does not,
however, allow a wife to testify in support of her husband.101

For the decades between 1890 and 1910, the Supreme Court consistently upheld the common
law principle that "a woman may not testify against her husband.102

In the case of Hendrix v. United States, the Supreme Court restated its position that a woman
may not testify against her husband. 103

42 Trammel v. United States, 445 U.S. 40 - The marital privileges originated in the late sixteenth century, and
by the end of the seventeenth century most courts recognized the privileges in both civil and criminal cases. By
the 1600's, the marital privileges appeared in the forms of incompetency and marital disqualification. Courts
often confused incompetency and marital disqualification in application, but the two forms were separate and
distinct. The common-law rationale for spousal incompetency was that husband and wife were one entity and
that no one should testify for himself owing to the temptation to lie in favor of one's interest.
43 Trammel v. United States, 445 U.S. 40 - The marital privileges originated in the late sixteenth century, and
by the end of the seventeenth century most courts recognized the privileges in both civil and criminal cases. By
the 1600's, the marital privileges appeared in the forms of incompetency and marital disqualification. Courts
often confused incompetency and marital disqualification in application, but the two forms were separate and
distinct. The common-law rationale for spousal incompetency was that husband and wife were one entity and
that no one should testify for himself owing to the temptation to lie in favor of one's interest.
44 464 U.S. 936 (1983). the admission into evidence of voluntary testimony revealing marital conversations
pertaining to criminal activity does not have a negative impact upon a marriage.
However, there were other instances when the courts departed from this concept.104

In 1919, the Supreme Court ruled that the "dead hand of the common-law rule of 1789 should
no longer be used" to suppress the evidence of convicted offenders.

For example, in case number 105, the Ninth Circuit Court of Appeals agreed with previous
Supreme Court decisions and ruled that "a woman might testify for her husband in a drugs
trial."

However, in the case of Tinsley v. United States, a circuit judge ruled that the prohibition on
wives testifying on behalf of their husbands was unfair, writing, "the rule preventing the wife
from testifying for her husband is an absurdity and a relic of legal barbarism which should no
longer be recognised." This ruling was made in 1930.107

According to a Supreme Court ruling from 1933, "the disqualification of the wife to testify
for her husband was no longer a component of the common law administered in the federal
Courts."108

Thus, following Funk, courts began permitting wives to testify against their husbands, and the
same decision was made in Mills v. United States. 109

Privilege for Anti-Marital Facts

The case of Lutwak v. United States outlines the rationale underlying spousal privilege,
raising the issue of whether or not it should be applied. It is thought that this reasoning will
lead to marital bliss or at least help maintain peace inside a couple's home. 110 In Adams v.
United States, one of the deciding judges provided convincing justifications for the spousal
privilege, with marital harmony cited as the main factor. 111

This identical conclusion was reached in the case of Hawkins v. United States112 A
legitimate marriage is required for this benefit to apply.113 The Court's current view of this
privilege was articulated in Yoder v. United States. 114
In the decision of Bassett v. United States, the Supreme Court of the United States paints a
vivid picture of this very situation. 115

A court ruled in Olender v. United States that the privilege applies to written evidence as well
as testimony given under oath.116

In addition, the court ruled in United States v. Anthony that a wife's words spoken in front of
her husband in such a way that his silence would as effect concede their veracity might be
accepted in evidence if other parties were present. A wife's refusal to refute a statement her
husband made in her presence during a conspiracy trial was admissible. 117

In the case of Knoell v. United States, it was ruled that the wife of one defendant might
testify against the other co-defendants118 However, several US states did not implement this
approach consistently.119

Testimony of a Divorced Spouse

A former wife who has been granted a divorce is free to testify against her spouse. 120 On
the other hand, if the husband commits a crime against the wife, this regulation will not
apply. 121
Varying people had different opinions on this, but the Supreme Court addressed the issue in
1959 by ruling that "a woman may testify against the husband when she is the victim."
122
This meant that wives may testify against their husbands in cases where the latter had enticed
them to engage in prostitution. In circumstances where a woman has been abandoned by her
husband, or if the husband has been found guilty of cruelty, polygamy, adultery, etc., the
courts have ruled that the wife has the right to testify against her husband. 123
In the meanwhile, certain variations on the idea were tried out, such as allowing the wife to
testify when she is the sole witness to the event.

Which Spouse can Testify?

It has become common practise for one spouse to refuse to testify against the other. The
spouse who is being called to testify, therefore, is entitled to decline to do so. As a result, the
advantage enjoyed by couples is shared equally between them.

In Wyatt v. United States, it was ruled that "a defendant may exercise the privilege to prohibit
his spouse from testifying, and a witness may refuse to testify against the accused spouse."
124

Meanwhile, numerous tribunals have ruled that a spouse may be subpoenaed to testify. In
Olender v. United States, however, the Supreme Court rejected this position. 125

It is crucial, once again, to challenge early on in the trial to the other spouse's ability to
testify.126 The message must be kept secret to qualify for the privilege. 127

Therefore, it is not a privileged communication if it is discussed in front of the youngsters

who are old enough to comprehend it.128 The communication must be only between the
spouses in order to qualify for the privilege. 129

Spousal Privileges under English Common law

Women were separated into feme sole and feme covert categories under English common
law.
Married women, known as feme covert, had less freedoms than unmarried feme sole since
their rights were often tied to or contingent on those of their husbands. No rights were her
own; rather, they were tied to those of her husband. After marriage, she used to have the same
rights as her husband and the same interests. English law has made this difference for
centuries, beginning in the late Middle Ages. There were limits placed on a married lady,
says Bracton. 134
There was no centralised system for applying coverture principles in ancient England; rather,
these policies differed by region.
135
It was conditional on the context in Wales.
136
Over the following years, these ideas disseminated across the British colonies and eventually
got incorporated into the local legal systems.
In his commentaries, Blackstone gives a vivid explanation of this idea: "By marriage, the
husband and wife are one person in law; that is, the very being or legal existence of the
woman is suspended during the marriage, or at least is incorporated and consolidated into that
of the husband; under whose wing, protection, and cover, she performs everything; and is
therefore called in our law-French a feme-covert; is said to be covert-baron, or under To a
large extent, the rights, responsibilities, and liabilities that each spouse acquires at marriage
hinge on this notion of a union of persons in husband and wife. In this context, I am not
referring to property rights, but rather to more abstract forms of protection. Since of this, a
husband cannot make a gift to his wife or engage into a covenant with his wife because doing
so would imply that she has a different existence from him. Similarly, a husband cannot make
a covenant with his wife because doing so would amount to a commitment with himself. 137
After being married, a woman effectively gave up practically all of her rights in favour of her
husband.
138
Covertures were originally a legal idea, but they gradually made their way into other
disciplines.
139
However, the idea of covertures was not exclusive to Common law. Indeed, it was also
widely used in ancient Roman law. 140
Similar laws to those found in English Common law may also be found in the French Code or
the Code Napoleon.141

Criticism of the System of Covertures

Covertures as a concept, however, could not escape criticism. Some have suggested that this
practise is not really embedded in English Common Law but rather is a tradition that has been
propagated by a small group of authors. 142
Similarly, Chernock expresses very similar sentiments.
Many legal scholars, including DuBois, had strong feelings either for or against maintaining
the practise of covertures.
144
Even Melissa J. Homestead agreed with them.
145
Canaday claims that this practise of coverture has faded away over time.
146
According to the court's analysis in United States v. Yazell, this practise is antiquated and
irrelevant in the present world. 147

As a result of the changes, feme coverture was outlawed in the United States.148

Similar to American law, the common law protected the privacy of spouses. This is due to the
fact that legal advantages in the United States are essentially a continuation of those in
England.

Spousal rights in India, however, are identical to those in English common law. Either spouse
may prohibit the other from testifying against them in court. Even though many people
believe it is impossible to know if a spouse is testifying with or without their knowledge,
courts have noted that there is often no need to investigate whether or not the spouse is giving
their permission. The sole question that requires answering is whether or not the
communication is privileged. Even if the spouse testifies on a protected topic, it cannot be
used as evidence if the topic is a marital one.
Spousal Privileges in India
Legal recognition of the rights of a spouse in a marriage in India stems from the following
precedent set long ago in the country's common law:

(i) One cannot be allowed to testify against oneself. To do so would be to incriminate

himself, and he has a vested interest in the outcome of the process.

(ii) According to biblical teaching, once a man marries a woman, they cease to be two distinct
individuals and instead become one flesh. This biblical idea that the husband and wife are one
flesh is deeply ingrained in English law. The presumption was made that a woman cannot
testify against her husband because of this.

Although these ideas have since been discredited, they were the basis for the creation of
marital privilege in English common law, which held that one spouse could not testify against
the other. However, in modern times, a few exemptions to these rules have been
acknowledged.
In several instances, Indian courts have used the language of Section 122, Indian Evidence
Act, to discuss and rule on the issue of spousal privilege.
The sacredness of two-way communication between husband and wife is the foundation of
this section. 151

Also, the purpose of the section 122 ban is to strengthen the marriage relationship. 153

Even after the divorce is finalised, this presumption will still apply to the disclosure of
communications between the parties. So, if the disclosure was made during the marriage, it
cannot be made public even after the divorce is finalised. 154

In accordance with section 122 of the Indian Evidence Act, the argument that a husband and
wife are treated equally by the law is not universally recognised and put into practise in
India.155

Communication during the Course of Marriage

Evidence of marital contacts is also admissible in criminal proceedings if one spouse
commits the crime against the other.156

Because of this, it's crucial that the conversation take place throughout the course of the
marriage for this provision to apply. Whether the conversation takes place before or after the
wedding, the parties involved may be subpoenaed to testify.

This provision applies to the extent that it bans either spouse from exposing communications
between them while they are married. There is no prohibition on other methods of proving
communication. The absence of either spouse from the procedure is likewise not fatal. No of
the nature of the dispute at hand, a husband and wife have an absolute privilege to whatever
communications they have had over the course of their marriage, as required by Section 122.

Disclosure with Consent

In accordance with section 122 of the Indian Evidence Act, any spouse may waive the marital
privilege and compel the other to provide confidential material. Therefore, a spouse may
consent to the disclosure of information even if it occurs during the course of the marriage.
The permission, however, must be given explicitly and not be assumed. It is the responsibility
of the court to investigate the matter and determine if the parties' consent was really stated.

According to the ruling in Auto Shankar's case,157 it is again a violation of the parties' right
to privacy.:

Exception to section 122, Indian Evidence Act

The following do not qualify as exceptions to the privilege under Section 122:

(i) Spousal communications may be used as evidence in a civil case if one partner files action
against the other.

(ii) Disclosure of marital communications is permitted in criminal proceedings if one spouse

is prosecuting the other for an offence committed by one spouse against the other.158

iii) behaviours not involving verbal exchange

A woman is permitted to testify as to her husband's actions on a given occasion, but not as to
his words.159 Courts shared this perspective in Norris v. Lee. 160

iv) Evidence by third persons

If a third party witnesses an exchange between a husband and wife, or if they overhear such
an exchange, they are able to testify as to what was said. Only the married couple should
enjoy this benefit. In his evidence book, Wigmore has also shared this view.161

All conversations between a husband and wife are protected by law regardless of whether or
not they are private in nature. It includes situations when only third-parties, such as a husband
or wife, have a vested stake in the outcome.

This was further affirmed in Rumping v. Director Public Prosecutions162

v) A secretly taped conversation between spouses

This was a fascinating issue before the court in Vishal Kaushik v. Family Court. Information
recorded by one spouse without the knowledge of the other spouse was at issue, and the court
ruled that it cannot be accepted as evidence. 163
vi) In the event of a criminal prosecution

This kind of communication is not protected from disclosure in a lawsuit between spouses or
in a criminal prosecution of one spouse for an offence committed against the other. When
discussing crimes committed by one spouse against another, the court in Narendra Nath v.
State164 noted that "the terminology in Section 122, Evidence Act certainly relates to such
offences as assault or physical injury, unlawful detention, etc." This exemption applies only
when one spouse commits a crime against the other throughout the course of their marriage. I
don't think it's fair to accuse one spouse of committing a crime against the other just because
they disagree over who had the gun. This safeguard under Section 122 of the Indian Evidence
Act is grounded on the admirable goal of maintaining harmony at home and trust in one's
spouse during coverture.

Reasonableness underlies the exceptions as well. In cases where one spouse is suing the other
or if one spouse has committed a crime against the other, such privilege cannot exist, since
doing so would be contrary to the interests of justice.

Spousal Privileges in Canada

Based on the common law principles, Canada similarly recognises the spousal privilege, with
some slight differences. Spousal privilege in Canada is governed by Section 4(2) and Section
4(3) of the Canada Evidence Act. 165

As in other Common Law countries, the spouse who is the intended recipient of the
privileged communications enjoys the benefits of this privilege in Canada. The spouse who
did not make the statements has no right to compensation. The defendant cannot invoke the
privilege defence if the testifying spouse wants to inform the court about a confession made
by the accused in confidence during their marriage and the testifying spouse wants to waive
the privilege. The message itself is not what is secret or off-limits, which is another way of
looking at it. Instead, the spouse who has the privilege has the option to forego sharing if they
so want.

All conversations between a married couple throughout the marriage's sustenance are
protected by this rule, as they are in other common law countries.166
When a couple in Canada has an irretrievable breakdown of their marriage, the advantage
enjoyed by those still legally married does not apply.167

Furthermore, Ontario will not follow the common law privilege for spouses.168 It is the view
of the Court in R v. McGinty that even with the cooperation of the other party, granting such
spousal privilege would be unproductive.169

There were therefore spousal incompetence and spousal privilege laws in Canada. The
Canadian courts have done away with marital incompetency but have not done away with
spousal privilege, therefore either one may be used by a spouse who claims it.

Arguments against Spousal Privilege

In the eyes of many naysayers, such a luxury is unnecessary at home.

It is argued in their favour that:

i) The vast majority of people are blissfully unaware that they enjoy these rights.

ii) Contrary to popular belief, marital ties do not centre on the aforementioned rights and
luxuries.

Wigmore thought privileges should come with conditions and was thus opposed to their
issuance.170

There are others who believe such privileges represent a threat to the independence of the
court and the search for truth, and that they should be discouraged as a result. Some people
think that even conversations between spouses should be permitted if it serves the general
good.

Developing of Exceptions to this Concept

With the passing of time, the meaning of privileges started to blur. In the case of Hawkins v.
United States, an exception was determined to exist in the United States. The defendant's
wife, who was a lady of questionable moral character, was allowed to testify against him at
the trial of first instance. After an appeal was filed, however, the Supreme Court overruled
the lower court's judgement, ruling that admitting the evidence against the defendant spouse's
objection is improper and that the privilege does not apply just to the witness spouse. 171

Following this case, it was recommended to change the Federal legislation by adding Rule 5-
05 to the Federal Rules. 172 Although the Senate attempted to approve the change, it
ultimately failed, leading to the implementation of Rule 501 and the transfer of jurisdiction
over the issue to the courts. 173

After this case, the Supreme Court further refined the idea in Trammel v. United States, when
it reversed the ruling it had previously made in the case of Hawkins. A husband and wife had
travelled to another country to get heroin and were bringing it back with them to the United
States. U.S. customs officials were suspicious and arrested them for bringing illegal goods
into the country. Due to her cooperation and willingness to testify against her husband, the
authorities have given the wife amnesty. However, the husband hoped his wife would not
testify against him. The trial judge heard the wife's evidence against her husband, and the
prosecution built their case around it. Based on the wife's evidence, the appeal court affirmed
the lower court's conviction of the husband. As for the Supreme Court's ruling that "only a
witness spouse may assert the unfavourable spousal privilege," it was also upheld by the
lower courts. There is nothing the defendant spouse can do to stop the testimony of the
witness spouse if that spouse is willing to testify. The court's rationale for its preceding
judgements is as follows. 174

As a result of this ruling, many individuals felt the need to voice their disapproval, arguing
that it sets a dangerous precedent and is unfair to the defendant spouse. Thus, some state
courts adopted Trammels' ruling while others did not. 175

When family harmony, mutual spousal trust, and marital tranquilly exist, however, it is
generally agreed that "the Trammel rule achieves the purpose of the adverse spousal
testimony privilege by preserving those marriages worth saving by admitting voluntary
adverse spousal testimony and withholding involuntary adverse spousal testimony."176

The case of United States v. Sims highlights the main points of contention and clarifies the
meaning of "spousal privilege."177
Other inferences that might be drawn from different judicial rulings and opinions include as
follows:

i) To the contrary, the court system should not punish a defendant for confiding in his or her
spouse about their guilt.

ii) However, the marriage is hopeless when the witness spouse voluntarily testifies against the
defendant spouse.

iii) in a crime involving joint involvement, courts should not apply the secret communications
privilege to protect a defendant's spouse from testifying against him or her.

iv) Confidence and trust between spouses and criminal partners are two very different things.
This rule of silence is meant to safeguard marital love and trust. There should be no incentive
to recruit a spouse as a criminal accomplice due to the communications privilege.

v) Courts should avoid invoking the communications privilege and preventing seemingly
harmful remarks from being admitted into evidence at trial where a marriage lacks traits such
as confidence, trust, openness, or frankness.

vi) Because the purpose of the communications privilege is not to safeguard the privacy of
criminals, the joint participation exception to the privilege should be used in court.

vii) The evidentiary requirements of truth-finding necessitate the compulsion of spousal

testimony about private marital conversations in the absence of some marital trust.

viii) The court must decide whether the marriage is worthy of marital rights before
considering whether to compel involuntary spousal testimony.

ix) Courts, when deciding whether a marriage should be preserved, should take into account
the date of the marriage, whether either spouse has cohabited for a significant amount of time
since the marriage, whether either spouse has lived with another person since the marriage,
and whether either spouse has threatened the other spouse not to testify.
Because the occurrence of any of these situations suggests that the marriage lacks the
rehabilitative qualities that the common-law courts intended the privileges to nurture, the
courts should contemplate forcing involuntary spousal testimony if and only if one or more of
the requirements is met.

But the United States Supreme Court got rid of common-law disqualification and updated the
logic of the secret communications privilege to protect marital intimacy and promote open
and honest communication inside marriage rather than incompetence. It was decided by the
Supreme Court that the privilege for providing hostile testimony on a spouse belongs solely
to the witness spouse.

Emerging issues in Spousal Privileges

As time passed, new challenges arose, and the conventional definition of privilege is
experiencing a transformation. Here are some possible categories for thinking about these
concerns:

Difficulty in defining Privilege issues

People are increasingly discussing live-in relationships, civil or domestic partnerships, and
even marriage as alternatives to the traditional notion of an exclusive union between one man
and one woman. The question here is whether or not marital privilege will apply in such
situations.

The courts are hesitant to provide this privilege in such situations, and many legal experts
agree that proof of a legitimate marriage between the man and woman is required before it
may be used. This benefit is not available if the marriage cannot be verified.The courts have
agreed with this assessment in many recent decisions.178

As a result, a partner cannot claim spousal privilege in a live-in relationship or a spousal

partnership of any kind.179

This benefit cannot be claimed without proof of a legally binding marriage. In other words,
fake marriages will not qualify for this benefit. 180
Same sex marriages and spousal privileges
With the legalisation of same-sex weddings comes the question of whether or not the spousal
privilege will apply to such unions. The Supreme Court upheld spousal privilege for same-
sex couples in the case of Obergefell v. Hodges. 181 Many nations, however, still ban same-
sex weddings. Once again, there is no consensus on whether or not transgender spouses will
be entitled to spousal privilege.

Extrajudicial Statements
Many courts are coming to the conclusion that the marital privilege only protects the spouse's
own evidence and does not prevent the admission of extrajudicial utterances. 182 Thus, there
is a developing opinion that spousal privilege will not apply in the context of extra-judicial
remarks.

Disclosure of the outcome of legal counsel might waive privilege.

A privilege may be waived by exposing its legal ramifications or its content; it is not required
to divulge the whole legal opinion.

In a recent judgement from Australia, the Supreme Court ruled that if a client communicates
the content of legal advice for forensic or commercial objectives, it violates the professional
privilege that protects confidentiality.183

CHAPTER V

CONCLUSION & SUGGESTIONS

Confidential communications between two parties that are shielded from disclosure because
of time constraints or public interest are said to be privileged. Thus, privilege refers to
conversations between two people that are intended to be kept secret for various reasons and
cannot be disclosed even if one of the people involved is forced to do so by the law.
However, privileges have the drawback of completely and partly excluding the statement
from the scope of evidence.
To many, these special protections stand in the way of getting to the bottom of things and
determining what's really going on. Such exclusions in the form of privilege, they argue, may
only be justified if the benefits of withholding information outweigh the risks associated with
revealing it. It would be inappropriate, for instance, to enable the disclosure of a conversation
between a spouse or between an attorney and a client or between a doctor and a patient. Once
again, maintaining that level of trust and confidence between you and another person depends
on keeping your conversation private. Therefore, there must be more harm from disclosure
than good from revelation.

In this view of disclosure, privileges might be either unconditional or conditional. As a result,

whether or not a full or partial disclosure ban is imposed, the underlying principle in
privileges is utilitarianism. As a result, the legitimacy of a claim of privilege raises a variety
of difficulties in every given instance. There are several factors to take into account, but two
of the most crucial are whether or not 285 secrecy is needed for preserving the interaction,
and whether or not the relation is founded on confidence and trust. The scope of the privilege
depends on the response to this inquiry.

These Privileges arose as a result of social necessity or the public interest.

The emergence of these advantages may be traced back to the intersection of social need and
public interest. When two individuals have a special relationship based on trust and
confidentiality, it is important that the law protects their right to share such information with
one another, or prevents the revelation if it would be detrimental to the public. Accordingly,
certain disclosures are harmful to a relationship, such as in marital communications, against
the confidence reposed by one party on the other, such as in privileged healthcare
communications, and against the public interest, such as in parliamentary privileges and state
privileges. Therefore, these advantages have developed as a result of social pressure or for the
common good.

Spousal Privilege
The term "spousal privilege" refers to the fact that any communication between a husband or
wife and their partner is protected from disclosure in a legal proceeding.
There are two varieties of marital privilege: protection against damaging testimony and
protection from disclosing private information. The first deals with incompetency under
common law, whereas the second deals with disqualification under common law.
Furthermore, the first is only accessible while the marriage is in existence and ends after
divorce, but the confidential communication privilege continues to be available to a spouse
even after divorce or separation.
Marriage is a monogamous relationship between one man and one woman, and their privacy
should be protected for the sake of their long-term happiness together. The family unit would
break down if husbands and wives are allowed to testify against each other in court. The
breakdown of the family unit has disastrous consequences for society as a whole. If there is
no trust between husband and wife, the family unit will collapse.
286
As a result of spousal privilege, the court cannot order one spouse to testify against the other
in a matter involving the couple. Otherwise, the ultimate result might be humiliating for both
partners, since one partner could be imprisoned based solely on their evidence, thus causing
irreparable damage to the couple's marriage.
Thus, the primary motivations for this benefit are the promotion of marital harmony and the
maintenance of marital intimacy.

These Principles cannot be Considered as Absolute any more

These privileged viewpoints emerged at a period when there seemed to be few if any
exceptions to the rule. While this general rule held true for a long time, various caveats were
eventually crafted since it was widely accepted that transparency is essential in certain
circumstances.

Spousal Privilege
It's important to note that there are exceptions to the spouse privilege, and that the idea of
privileges in general has been watered down through time. Only conversations that should
remain private are shielded by this privilege. It's not the case that all conversations between a
husband and wife are private and immune to revelation. This rule solely affects private
conversations.

Therefore, the privilege only applies to communications between spouses and does not
include criticisms of one's partner's behaviour made by the other partner. Furthermore, if one
spouse discloses the information to a third party and fails to keep it confidential, the privilege
objection may fail. This means that once one spouse shares this information with a close
friend, it is no longer protected.

Privilege is based on a Valid Marriage between the Parties

For this benefit to be available, the marriage must be legally recognised. If a marriage is not
recognised by law, then the privilege cannot be asserted, even if the parties involved are
married.

To sum up, judges were hesitant to provide the benefit of the testimonial privilege between
spouses in cases where a lawful marriage could not be demonstrated; only in certain cases
could spouses take use of this right.683

Therefore, it follows that neither party may claim this privilege in live-in relationships,
domestic partnerships, or any other relationship that falls short of being considered marriage.
In order to enjoy the benefits of marriage, a legal marriage must be in effect, as established
by state law.684

There have been certain developments in the law that provide exceptions to the spousal
privilege, including the ones below:

(i) There is no protection afforded by the marital privilege in the event of a legal dispute
between partners. In a civil litigation, especially one involving a disagreement over shared
property or the like, any party may testify against the other.

(ii) If one spouse is bringing criminal charges against the other for a crime committed during
the marriage, the other spouse will be able to reveal communications between the two.
However, the privilege of living with one's spouse does not apply in cases of criminal
activity. The exclusion is addressed directly in section 122 of the Indian Evidence Act.
Therefore, disclosure is permissible if one spouse is punished for a crime committed against
the other. If the woman were to be prosecuted for an offence she committed against her
husband, for instance, the husband may reveal any confidential communications she had with
him if they were pertinent to the case at hand. Once again, in a crime involving joint
involvement, courts should not apply the private communications privilege to protect the
privacy of the defendant's spouse and make her or him immune to prosecution. Confidence
and trust between spouses are not the same thing as that between partners in crime. The
purpose of the communication privilege in marriages is to safeguard the couple's love and
trust. Involvement of a spouse as a criminal accomplice should not be encouraged by the
communications privilege.

iii) A woman may attest to her husband's actions, but not his words, in a given situation. This
means that a spouse may divulge whatever information they know about their partner's
actions or behaviour.

(iv) When a third party is present or overhears a discussion between a husband and wife, they
are able to testify to what was said. Only the married couple themselves are entitled to this
privilege.

(v) In this case, the other spouse cannot use any recorded communications that were made
without their knowledge as evidence.

Suggestions
As a result of weighing the benefits and drawbacks, the following are some approaches to
privilege communication in married life:

It's important to remember that privileges are the exception rather than the rule.

This privilege should be used sparingly and only in circumstances of significant hardship to
the parties involved. Case-by-case rulings by the courts are the most appropriate. It should be
flexible enough to be applied selectively, or it should be possible to apply it selectively.
Therefore, under extraordinary circumstances, it should be acceptable to selectively deviate
from ethics and norms. These rights are problematic for the in matrimony because they keep
some people and their testimony out of the realm of admissible evidence; as such, they should
be permitted only to the extent necessary by law. A generous reading of these protections
cannot be a feature of fairness.

The practise of providing special treatment to one's spouse should be done away with
since it is no longer necessary.
Spousal privilege has outlived its value and should not be permitted to be protected with
privilege. It's completely unwarranted and unnecessary sentimentality. Larger public interest
should be given more priority than sustaining the marriage ties between two people. At this
juncture, it is important to note that many nations have done away with this right. There is no
longer a valid argument that what happens between a husband and wife is privileged in
today's society, since marriage and family concerns are openly discussed among friends and
family. As a result, the court should have the authority to order the husband or wife to reveal
the material in question if they determine that doing so is in the public's best interest. There is
now no rationale for shielding marital secrets from the courts.