A spouse walks away from the marriage bed and wants this to be legally recognized. I told her/him that s/he could not get a divorce because s/he was at fault for having walked away without an apparent cause. S/he had made public a liaison with another person. I don’t care about divorce, s/he said: I just don’t want the other to harass me physically. S/he barges into the separate house I have rented. Disrupts my office. Can’t s/he be restrained from doing that?

I have deliberately made the above gender narrative neutral though the case I am talking of concerns a husband having left the marriage.

Apart from his marital fault of adultery, my client was exemplary in other spheres of marriage: as a parent, as a provider and even in correct demeanour and protocol towards his estranged spouse. Similarly, a wife who wants to walk away could well be exemplary in all spheres of marriage; she could be self-supporting, non-demanding, a good parent but might seek to be ‘left alone’.

Does such a spouse have a right to seek refuge in love outside a loveless marriage? Does s/he have the right of privacy/autonomy/liberty?

We had filed a suit for injunction seeking protection from the wife barging into his separate house and his office, against proper assurances of financial security. This was dismissed. We had argued as follows:

1. Marriage, by its very structure, requires dilution of some privacy. It is a mutual institution that by its very structure requires giving up some privacy. However, the degree of ‘giving up’ is a personal choice negotiated by conduct or words to the extent possible that ‘mutuality’ allows.

2. In this case, the earlier mutual agreement had to change on the ground of my client’s inability to ‘cohabit’ because of his unhappiness.

3. The ‘bond’ of a marriage is to be respected if it is acceptable to both: if not, it becomes an intrusion and the law should not countenance that.

4. Marriage has two aspects – one is financial which is self-explanatory and the other is conjugal, which is a complex amalgam of abstract ideals of marriage: consortium, companionship, sexual intimacy and such like, all of these are in the nature of ‘personal obligations’ or ‘duties’ which in the contract law, for example, are not enforceable.¹ Yet, a decree for ‘restitution of conjugal rights’ is enforceable at risk of attachment of the property of the defaulting spouse.

The non-enforceability of the personal obligation in a contract is, on the face of it, based on the concern for the quality of discharge of that personal obligation. However, the subtext, I submit, is also ‘liberty’ and ‘privacy’.

5. For all the above reasons, this deeply intimate private duty/obligation/privilege becomes horrendously oppressive.

In the 21st century, these arguments need to address the fault theory regime in Indian family law.

 

Dismissing our case,² the judge was scathing about my client’s attempt to circumvent the rigour of divorce law due to his own inescapable fault. In all fairness, the judge was somewhat constrained by legal precedents and chose the conservative view. Privacy had not then been clearly established as an individual right. Was there an alternative? My client could have filed for judicial separation. It is borrowed from English law, ‘mensa et toro’, the literal meaning of which is ‘separate bed and board.’ Such a decree would amount to a legal recognition of the state of the marriage.

However, under our divorce statutes,³ the grounds for judicial separation and divorce are the same. In both instances, the petitioner must be a victim of marital fault and while granting relief the court must be satisfied that the petitioner is blameless. A blameworthy petitioner has to try harder to attribute the larger fault to the other to obviate his/her own fault. Hence the problem of shrill, and often lying, affidavits.

The twist is that even a blameless petitioner may be refused a divorce, if the court finds that the complained- of spouse has not been cruel enough to merit the ‘relief’ prayed for. The nub of the matter is the cruel irony that the court will decide whether one is unhappy enough to deserve a divorce/judicial separation. If it is a case of ‘unhappiness simpliciter’, the law turns away with an indifferent shrug. This oddity could be called a ‘conundrum’ in polite times, but is really an instance where the Dickensian Mr. Bumble would call the law an ‘ass’.⁴

 

Would my case have been different in the post-Puttaswamy era? Puttaswamy,⁵ a case on privacy, and Navtej⁶ and Joseph Shine,⁷ which uses the privacy-autonomy principle, are known as the ‘privacy trio’ judgements. Delivered in 2018, they are vital for the development and reinforcement of the constitutional purpose of, inter alia, liberty and equality. All three were premised on privacy as an aspect of the liberal values of the Constitution.

Navtej Johar decriminalized consensual same-sex intercourse and overruled Suresh Kumar Kaushal.⁸ Joseph Shine decriminalized adultery and overruled Sowmithri Vishnu⁹ and Puttaswamy defined privacy and overruled ADM, Jabalpur.¹⁰

 

A nine-judge bench in Puttaswamy gave the broadest definition of the right to privacy, with the caveat that no enumeration can ever be exhaustive. Each judge in lyrical prose attempted an expose of her or his view on privacy. The same is difficult because it is like describing air, i.e. so essential and yet so intangible. Its value is realized only when suffocating in deprivation. This definition was then juxtaposed on the matter of whether the Aadhaar cards scheme violated the fundamental right to privacy. All judges refuted the Attorney General’s argument that privacy was an ‘elitist’ concept.

What is the impact of this case for my client now? He has still not filed for a divorce because his enormous ‘fault’ overwhelms any ‘rightness’ that he might have brought to the marriage. My submission is that Puttaswamy should make a difference, but my reservation is that the Puttaswamy principle will not easily translate in the judicial sphere in family law for two main reasons: (i) The trajectory of Supreme Court rulings on such issues has been distressingly uncertain; (ii) Though the Supreme Court has enunciated the principle, High Courts still need to follow and build upon it. The lower judiciary needs to be educated that these principles are the cornerstone of our justice system and cannot be treated as abstract ideas far removed from reality.

A friend asked, ‘Are the lower courts not bound by "precedent" from a higher court? Or, are these Supreme Court judgements so complex and arcane that no judge can understand, let alone follow them?’ The answer is within the question. It is binding and yet there seems to be no understanding of what exactly is binding, as I will explain later. And yes, such long judgements tend to create confusion with stray sentences/obiter/discussion providing adequate room for conflicting interpretations. And when there is such conflict and confusion, the lower judiciary errs to the perceived safety of the narrow and conservative ambit.

 

The lower judiciary needs to feel confident that they are the foundation of the justice dispensation system and even a conservative/narrow approach to law (which lower judiciary tends toward) must include and respect constitutional morality. Having said that, privacy in any case is a difficult concept because we still have no clarity on what it really is and how to apply it in private litigations like matrimonial law. However, I will attempt to do just that in this essay.

The post-Puttaswamy era was in harmony with the philosophical liberal ethos of an otherwise controversy riddled tenure of the then Chief Justice Dipak Misra.¹¹ These ‘good’ judgements should not have been a surprise; after all they crystallized jurisprudential values that had been burgeoning over the years in a series of preceding judgements. Yet these judgements were a pleasant surprise because the movement to liberal democracy had not been certain. There have been shocking lapses that took us many steps back, and there were many opportunities lost to move forward.

 

Our constitutional jurisprudence emerges from a group of men (women are very few) with their separate experiences, which however are not diverse enough to provide truly varied perspectives. At the end they are a range within patriarchy, from a liberal patriarch to a conservative. My critical friend will say that the very nature of judicial discretion means varied judgements and I agree. However, discretion by its very definition, is a veering by a few degrees this way or that, within the parameters of a very clear constitutional mandate, which is non-patriarchal and inclusive.

An instance of a judge being limited by his socialization of social patriarchy (which is a pre-constitutional morality) is the Delhi High Court judgement in the Harvinder Kaur case.¹² Here a husband’s petition for conjugal rights was allowed with the words: ‘The breaker-up of the home is the wife. She has disrupted the matrimonial home without sufficient cause. There is withdrawal not only from intercourse but also from cohabitation without just cause. Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop.’¹³

In contrast (in keeping with constitutional morality), is the case of T. Sareetha,¹⁴ of the Andhra Pradesh High Court delivered by a judge with clearly a different socialization. The husband’s petition for restitution of conjugal rights was denied on the ground of women’s autonomy embedded in the right to privacy. The court stated: ‘The life of a man or woman which the sovereign can commandeer through the coercive power of the state for performing an unwilling act of sexual cohabitation cannot but be regarded as that of a human beast drained of all spirituality.’5 Unfortunately, the Supreme Court as guardian of our Constitution – which is clearly, emphatically, magnificently non-patriarchal – followed the Delhi High Court.

Martha Nussbaum believes that the flaw of the Andhra Pradesh judgement is its focus on privacy rather than liberty.¹⁶ However, I do not believe the Supreme Court would have ruled any differently even if the argument had focused on liberty. The focus and inner logic of the Supreme Court ruling was to avoid a ‘feminist’ approach, even when it is synonymous with ‘liberty’ and/or ‘privacy’.

 

Therein lies the problematic: how do patriarchal judges align with the Constitution which is a liberal document and thus aligned with feminist ideology? Speaking at a function on the eve of his retirement from the Supreme Court, Justice Sikri said that every judge should possess, ‘some element of femininity to do complete justice.’¹⁷ At a conference on feminist lawyering, Justice Chandrachud agreed that the Constitution was feminist but also mentioned that many judges would be hesitant to give themselves and the Constitution that label. Puttaswamy surely is ‘feminine’ and must be celebrated along with its two sister judgements. They should be elaborated to develop the dialogue of gender equality.

 

Now that we have these judgements, we need to run with them for family law, and expose to the court the dark subtext of the home that violates its principle.

Puttaswamy first deliberates on constitutional morality – that fundamental rights, though separately enumerated, do not form separate watertight compartments. They flow and merge and overlap to form one large all-pervasive fabric or ethos that is inclusive of every aspect of the dignity of the individual. By this description, the court held that the enumerated fundamental rights are by no means exhaustive.

Thus they held that ‘privacy’, though absent as a word in Part III of the Constitution, is contained within the warp and weft of the enmeshed fundamental rights, expounded as one dynamic, alive and broad fundamental right that every individual must have. The court relied on Justice Khanna’s dissent in ADM, Jabalpur case that located the fundamental rights in society, rather than as a creation of the Constitution. The Puttaswamy judges held that the same is true for privacy which exists in society and the judgement only recognizes it as a fundamental right, equal in import to the others.

These judgements at a first reading deal with the matter of privacy against the state. At this level, privacy comes into play for family law that deals with marriage/family as state-supported institutions regulated by statute.

My submission is that divorce should no longer be a difficult exercise in the post-Puttaswamy era. To be compelled by law to stay in a marriage is not in consonance with the law as manifested in Puttaswamy. For the law to support a spouse who unreasonably and irrationally refuses divorce is unconscionable in the Puttaswamy regime.¹⁸

A deeper reading reveals the scope to find privacy on intersections other than that of the individual and state. There is room, as Justice Chandrachud says, for ‘non-state actors’ as well. This too is important for family law where we deal with balancing individual rights within the family.

 

Will this theory be accepted in court? In my experience, judicial resistance is not to privacy as a theory but to moving away from the patriarchal construct, that suits half of the population that exercises power in varying degrees over the other. Thus, the very persons who can change society and develop law on egalitarian democratic constitutional lines are intuitively invested in the status quo, even when their intellect might persuade them otherwise.

Most judges (particularly of the lower judiciary) do not want to drastically change the status quo based on what they see as abstract concepts, particularly when that approach marks them as different, perhaps too bold, even ‘upstartish’. They want to leave these philosophies to the higher judiciary which for me is a deep systemic problem. The lower judiciary needs to internalize these ideas and be assured that they are not abstract but so real as to be primordial.

This is difficult because deep socialization against liberal/broad positions makes many judges and lawyers feel morally committed to patriarchy. They would prefer to read their law from that moral position which is invariably narrow/conservative/limiting, and thus cannot serve justice, and by its very nature is quite opposite to the above traits.

Nussbaum (in a somewhat different context) blames the uncertainty in Indian law in matters of gender rights and liberal values to a lack of gender sensitization and education of judges.¹⁹ While I agree with that, I believe that with education, they also need intellectual courage to break through their own patriarchal socialization. The Constitution has no scope for patriarchal ‘benevolence’. It simply acknowledges our rights and assures us that they are protected. It does not ‘gift’ us rights because we already have them. If these rights are not realized, we knock at the door of the judiciary.

 

To balance competing rights within family, the judiciary veers to patriarchal values and it is worrisome that judges don’t see that as unconstitutional. It is a complex traction at several levels which may lead many judges to adopt a narrow approach even to reading Puttaswamy, by saying that it deals only with intrusion by the state, and thus they carry on their patriarchal interpretations in every other realm of law and society.

Thus, the Puttaswamy value must be reiterated many times for it to travel down gently to the lower judiciary. The message post-Puttaswamy has to be that privacy is not limited to individual interaction with the state. The very concept of privacy does not allow for that limitation once it is found to be a fundamental right. The judiciary as an instrumentality of the state has to guarantee all individuals their complete rights.

In its broad definition of privacy, the ‘right to be left alone’, Puttaswamy includes autonomy, independence, right to choose, right to disagree, right of family, motherhood and procreation. As a practicing family lawyer, I focus on the italicized words. Motherhood remains unclear. Is it maternal preference during tender years, or is it the choice to be a mother? Procreation is the right to have children but it is unclear whether fathers can insist for mothers to bear their children. The reference to family implies the privacy of the family unit, which is again problematic because the need of the hour is to break the unit to reach grimy recesses of indignities and atrocities suffered by disempowered individuals within the home.

Thus, we need to drill further (which Puttaswamy leaves scope for) to focus on individual rights balanced with compelling rights of other members of the family.

 

In all cultural contexts, privacy is liberty, freedom and equality. Patriarchal overbearingness is what led many ‘western’ feminists to challenge privacy as a shroud over excesses against the disempowered within the family. In most western jurisdictions, the identity of women merged into that of her husband.

Like in India, the US Constitution too does not use the word ‘privacy’. It was developed first with the great Brandeis essay²⁰ which dealt with intrusion by the press, then against the state, in a series of judgements that developed the concept of personal autonomy. Our Constitution began its journey as a modern, post-war, progressive document. Women were enfranchised from the inception of the Republic unlike women in the ‘West’ who fought a long, hard battle for the right to vote. Racial minorities in the US got the right to vote only in 1965, whereas the Indian Constitution, from its inception, did not countenance such types of obvious discrimination.

Additionally, women and minorities were empowered with the theory of substantive equality that informed our law as opposed to formal equality that leads to the unhappy result of intensifying inequality by treating unequals as equals. In contrast, the substantive equality model treats the marginalized as a separate category, deserving the protection of the constitutional mandate contained in Article 15 that works to make justice accessible and meaningful. In this way Article 14 sees gender equality whereas Article 15 recognizes the special needs of women and children. Thus, as a combination, we have a nuanced concept of substantive equality.

The problem of competing rights in family law is that while the idea of parental responsibility and privileges is well delineated, the current trend of sometime casually adhering to the formal equality standard has endangered women and mothers. Thus, the result is that in the event of divorce, she must share her children equally but not enjoy an equitable distribution in the marital wealth that she helped create by being at home as primary care giver. This is the injustice of formal equality despite our jurisprudence of substantive equality.

 

This veering to formal equality could have many reasons: one is the exhaustion of overworked courts, strained for time to deal with the nuance of philosophy of law and justice. I do not accept this as reasonable though I do acknowledge the problem. The other is a symptom of a neo-patriarchal trend based on the misplaced belief or idea that in the 21st century we have enough gender equality and are now ready to treat men and women equally in all situations.

This, unfortunately, is not the case. Any newspaper/academic paper and practical experience will show it is not so. The very fact that ‘feminist’ has not yielded to the ultimate goal of ‘humanist’ yet, shows that it is not so. In other words, gender discrimination continues to persist.

Puttaswamy has opened new possibilities of developing the argument that competing rights of liberty, privacy, autonomy of each family member need to be upheld and balanced with a substantive equality approach.

 

Let us now look at privacy in the matrimonial statute. The first aspect of privacy (autonomy and also individual liberty) began with the 1955-56 Hindu Code that eroded the theory of marriage as a sacred institution. To that extent it was in keeping with Christian marriages where marriages are binding as sacred, to exit from which required a high degree of marital fault.

The faults in the original Hindu Marriage Act, 1955 were thus limited and with a high threshold for grant of divorce. The 1976 amendment included more marital faults as grounds for divorce. By an amendment in 2001, Christian divorce law was brought on par with the Hindu Marriage Act on the matter of grounds for divorce. Thereafter, though there was no further legislation, the courts evolved the law by interpreting marital faults on a lower threshold to make divorce, if not a right, then at least less difficult.

The evolution, however, has not been certain with sharp backward trends as the 2015 decision in Narendra v. K. Meena.²¹ The statute thus, remains a stranglehold against the rights to exit a marriage. Here is where Puttaswamy can galvanize the statute, with the right to privacy, liberty to take charge of one’s life, the right of a person to protect his/her dignity and autonomy as a single person who is complete. This, of course, must be made meaningful with balancing/ adjustment/equitable distribution of financial and parental obligations and rights. Thus, my client’s story, in theory, should have a happy resolution for him and the consequence for his wife need not be unhappy, if children and finance are taken care of by law.

 

A limitation for me in the Puttaswamy judgement is that in its lyrical enunciation of the dynamism of our Constitution, the court (except for Justice Bobde who referred to privacy in Hindu and Islamic society) based its opinion only on western definitions of privacy. Thereby it nullified its own principle that all fundamental rights in our Constitution are an articulation of what already exists in our society.

By not identifying privacy in our personal laws and social fabric, we have risked freezing privacy into a very limited idea. This may become a potential reason why the lower judiciary will tend to interpret privacy/ autonomy as branches of gender equality, as alien to ‘Indian culture’ and more akin to ‘western mores’.

Due to the distracting din of our obvious social and economic issues, neither Puttaswamy nor western writers of privacy have analysed privacy in India. In 2000, Martha Nussbaum made an enunciation of privacy in the Indian world, which thankfully she admitted to perhaps being too simple.²² Nussbaum cites novels by Arundhati Roy and Tagore, in which the central theme was the danger of spilled secrets. Nussbaum does mention the T. Sareetha²³ case and the problem of the shroud of privacy on the family unit as it surfaces in the Harvinder Kaur²⁴ case. She thus highlights the inherent social contradictions that reflect in our jurisprudential development.

 

Unfortunately, as to the rest, a western lens marks Nussbaum’s approach. For example, she is oppressed by how intrusive our traffic is (though to be fair, she does mention New York as a competitor, but no other place in the entire western globe). Realizing that traffic surely cannot mean we have no privacy, she mentions ‘modesty’. Nussbaum then finds privacy most certainly in the fact that the poorest Indian travels long distances to ‘excrete’ in private!

I thus receive Puttaswamy with pride and venture to say that the western scorn about our lack of privacy (due to our populated streets and absence of toilets) is an unfortunate limitation of their understanding of privacy. For India the concept has existed in the deepest layers of our society, where resides our core philosophy. This philosophy which pervaded the land across diverse communities was a lifestyle and life ethic that was individualistic and yet inclusive. This is the reason why we have by and large survived (thus far) as a pluralistic society. As to the law of the majority, Hindu law was not as patriarchal as is made out to be, first by westerners and then by modern right wing Indians looking for Hindu muscularity to compete with what they see as ‘muscular’ Islam.

 

Ancient thinkers like Narada and Kautilya recognized the importance of privacy of the inner home, ‘antahgraha’; the power of withdrawal in the private world, ‘antardhyan’; the woman’s autonomy over her wealth, ‘stridhan’. She could have separate ownership of wealth, business and even land.²⁵ The importance of respecting a woman’s bodily integrity is dealt with in the T. Sareetha case. It cited a Bombay High Court judgement, ‘Hindu Law itself, even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure, as compulsion by the courts to force her to return against her will.’²⁶

Islam, too, recognizes the importance of privacy. The prophet would spend 40 days every year in the caves in the desert heights for spiritual strength. Purdah originally was privacy till it became a symbol of oppression (for the outside world). The Prophet recognized autonomy by advocating contractual marriages where a woman’s family could negotiate her mehr in case of divorce. Women could ask for divorce under khula and there was no stigma to their marrying again. The Prophet’s wife, Khadija was an independently wealthy businesswoman and stayed so even after her marriage. This is autonomy, a subset of privacy that was core to Islamic law. However, the same is now wrongly applied by oppressive, ruthless patriarchal mindsets committed to retain power.

Some High Court family law judgements delivered post-Puttaswamy show the message has not filtered down. The message of empathetic nuanced treatment of the woman’s realm as separate even while within the family has not been understood. Rulings continue to decimate women’s rights as mothers and individuals in the name of welfare of the children. The tussle here is mothers being reduced to chattels in the name of children’s welfare. Orders asking the mothers to return to countries that they fled from, because children must ‘know their father’, are examples.These orders ignore precedents that were cited even prior to Puttaswamy, but should not be able to do so easily now.

 

An old English judgement, Poel v. Poel²⁷ made a woman-centric balance when it ruled, ‘I am very firmly of opinion that the child’s happiness is directly dependent not only upon the health and happiness of his own mother but upon her freedom from the very likely repercussions of an adverse character. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.’

Similarly, in Shalini Vohra’s²⁸ case, the mother was allowed to relocate to pursue her career. Every person has a right to develop his or her potential. In fact, a right to development is a basic human right. The respondent mother cannot be asked to choose between her child and her career.

The trend of rulings shows that notwithstanding a clear constitutional mandate for liberty, equality and fraternity (the last is a much neglected word; core to maintaining our pluralistic ethos), there is no guarantee of protection from illiberal spaces. There has been no careful building of a liberal edifice that would make it a secure and strong fortress of individual rights.

Justice Kaul mentions privacy as a ‘subset’ of liberal values. These values are seemingly not positive law because of their abstract content. Yet, they are core to every individual whose rights must prevail over every institution, which includes marriage. Further, while prevailing, it strengthens the democratic element of that institution, including marriage.

 

The legacy of the present Chief Justice Gogoi for family law, judging by the work allocated to him by his roster, I thought, would be relatively bland. However, it is important to note that he has recently constituted a bench to hear the constitutionality of restitution of conjugal rights after Puttaswamy. Yet he has disappointed in letting go of opportunities that are meaningful for the woman’s cause. In a hearing about a difficult choice for a woman between career and child, he would not engage with the question of autonomy: a clear Puttaswamy mandate.

While we have the luxury of nine Puttaswamy judges (two of whom are in line to be Chief Justices of India successively) who can widen the application and reach of privacy, there is a need to spread the impact of Puttaswamy, not only in society, but in the judiciary itself. Going by the approach of some courtrooms, the Supreme Court itself needs to receive Puttaswamy laterally to the non-Puttaswamy Supreme Court judges, and then it must percolate to the High Courts who will help filter it to the lower judiciary. That is the need of the hour.

 

* The author wishes to thank the following for their valuable input and support in the writing of this essay: Prof. Werner Menski; Dr. Rajeev Dhavan; Naina Kapoor, Advocate and Anshu Hardy Davar for her valuable assistance in putting it all together with me, Diya Devaiah, Zubin John, Adya R. Luthra and Tejas R. Luthra, all students of Jindal Law School, Sonepat.

** Malavika Rajkotia is the author of Intimacy Undone: Marriage, Divorce and Family Law in India, 2017.

Footnotes:

1. Lumley v. Wagner [1852] EWHC (Ch) J96, In the famous case of personal obligation not being enforceable, the court held that the singer could not be forced to sing at the nightclub, though could be restrained from singing elsewhere.

2. (2008) 108 DRJ 611.

3. Hindu Marriage Act, 1955; Special Marriage Act, 1872; Indian Divorce Act, 1869.

4. Charles Dickens, Oliver Twist. Wordsworth Editions, Ware, 2000.

5. Justice K.S.Puttaswamy v. Union of India. (2018) 4 SCC 651.

6. Navtej Singh Johar v. Union of India. AIR 2018 SC 4321.

7. Joseph Shine v. UOI. AIR 2018 SC 4898.

8. Naz Foundation v. Govt of NCT of Delhi 160 2009 Delhi Law Times 277.

9. Sowmithri Vishnu v. UOI. AIR 1985 SC 1618.

10. ADM Jabalpur v. Shivakant Shukla (1976) 2 SCC 521.

11. However, the liberal Dipak Misra in a contradiction of sorts, recently at a conference in Bangalore said that marital rape should not be made a crime as ‘it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.’ Available at https://www. deccanherald.com/city/marital-rape-shouldn-t-be-crime-in-india-ex-cji-misra-727688.html (last visited on 3 May 2019).

12. Harvinder Kaur v. Harmander Singh Choudhry. AIR 1984 Delhi 66.

13. Ibid.

14. T. Sareetha v. T. Venkata Subbaiah. AIR 1983 AP 356.

15. Ibid.

16. Martha C. Nussbaum, ‘India: Implementing Sex Equality through Law’, Chicago Journal of International Law 2, 2001, p. 1.

17. Function organized by the Supreme Court Bar Association at the retirement of Justice A.K. Sikri, Times of India, 6 March 2019.

18. Pre-Puttaswamy Samar Ghosh Case. (2007) 4 SCC 511, explores this.

19. Martha C. Nussbaum, 2001, op. cit., p. 1.

20. Warren and Brandeis, ‘The Right to Privacy’, Harvard Law Review 4, 1890, p. 5.

21. Narendra v. K. Meena (2016) 9 SCC 455.

22. Martha C. Nussbaum, ‘Sex Equality, Liberty, And Privacy: A Comparative Approach to the Feminist Critique’, in Zoya Hasan et.al. (eds.), India’s Living Constitution: Ideas, Practices, Controversies. Permanent Black, 2002.

23. T. Sareetha v. T. Venkata Subbaiah. AIR 1983 AP 356.

24. Harvinder Kaur v. Harmander Singh Choudhry. AIR 1984 Delhi 66.

25. Flavia Agnes illustrates cases of women bringing land as dowry but retaining it as separate.

26. Bai Jiva v. Nar Singh Lal Bhai. ILR (1927) 51 Bombay 329.

27. Poel v. Poel. [1970] 1 WLR 1469.

28. Vikram Vir Vohra v. Shalini Bhalla. (2010) 4 SCC 409.