India Family Privacy in India

Abstract

INTRODUCTION Family privacy in India is a complex subject. This chapter aims to give readers an overview of family privacy under Indian law through the lens of two decisions passed by the Supreme Court of India in 2017. First, it describes the implications of the Supreme Court's decision in K.S. Puttaswamy v. Union of India for family privacy. In Puttaswamy , the Supreme Court of India authoritatively held that the right to privacy is a fundamental right protected by the Constitution of India. In its decision, the Court analysed the concept of privacy in detail. The plurality opinion also highlighted several decisions of smaller benches that recognised privacy as a constitutionally protected right. This analysis of precedent included discussions of decisions that had recognised personal autonomy and bodily integrity as important aspects of women's right to privacy. The plurality's analysis in Puttaswamy is interesting when placed within the context of a traditional narrative in India that views the family as sacrosanct. This narrative is based on a presumed existence of a family ‘unit’ whose privacy is in tension with the rights of individuals to personal autonomy and bodily integrity. A prominent example of this traditional narrative is precedent governing the constitutionality of section 9 of the Hindu Marriage Act, related to restitution of conjugal rights. According to this provision, a court may order a spouse who has withdrawn from the society of the other without reasonable excuse to resume cohabitation. Non-compliance with a decree of restitution may lead to financial sanctions, either in the form of attachment of property or periodical payments by the judgment debtor to the decree holder. It is widely believed that the Puttaswamy judgment will have important implications for gender equality. At the time of this writing, there are two separate petitions that have been filed in the Delhi High Court, urging it to declare provisions related to restitution of conjugal rights and marital rape as unconstitutional. However, this chapter will highlight how the decision of the Supreme Court in Puttaswamy has only reduced the ambiguity related to the concept of family privacy to a certain extent.