Marital Privacy, A Pseudo Concept?

This blog is inscribed by Amri Gupta

The concept of Right to Privacy is recognised under Article 21 of the Indian Constitution, 1949. The concept of Privacy is dynamic in nature due to which it has to be understood in different contexts and needs judicial interpretation. Privacy includes bodily integrity and inviolability and protection of personal identity including marital privacy. But, the acceptance of Privacy in marriage is yet to be addressed and embedded in the minds of people.

The concept of Privacy becomes more debatable when it gets associated with women. However, the presumption of women and their privacy in marital institutions is based on Victorian Patriarchal norms i.e. Doctrine of Coverture which considers men and women as unequal. It considers women as a chattel to her husband and not as an independent entity due to which no rights are vested under her own identity.

In the modern era, this doctrine paved a way for an unrecognised offense named Marital Rape. Google defines it as an act of sexual violence against a woman without her consent. Further, Section 375 of Indian Penal Code, 1860 mentions about an exception which states that sexual intercourse or acts by a man with his own wife provided the wife above fifteen years of age is not a rape. Thus, the act supports the Doctrine of Coverture ignoring the concept of Fundamental Right.

Paradox Related To Marital Rape In India:

Marriage is considered as a sacred institution, if interfered will lead to its breakdown. Many petitions have been turned down, by ignoring the fact that marriages survive because women silently bear the abuse and violence administered on them by their husbands. In Indian Family System, the concept of ‘tolerance’, ‘adjustment’ is propagated among women only to save and respect the honour and sanctity of institution.

Two sets of arguments can be identified which are being proposed to deny wives their right of protection against sexual assaults within marriage. One argument believes that due to conditions of poverty, illiteracy, social and religious beliefs, the Indian system is not suitable to understand the gravity of marital rape while the other argument believes that as domestic violence is misused by women the same can happen with marital rape. Both of these arguments contradict each other as former presumes that the majority of men and women are illiterate , poorly trapped by orthodox beliefs which makes them insufficient to understand the intricacies of congenital rape while the latter believes that the Indian women are too smart to misuse the law. Both arguments support the notion of ‘good wife’.

The Courts in India are inspired by the Blackstone Commentaries which puts husband on a levitated position as a ‘lord’, ‘provider’ or a ‘master’ whereas wife in a subjugated position. (1) It is believed that during marital ceremony, man vows to protect his wife, therefore, is empowered by customary laws to be superior and dominant. This dominance makes the relationship weak as it involves force used by a man over his wife. The traditional norms deny woman of any authority and fosters a passive and submissive attitude which compels them to remain silent for preservation of their family. They are made to believe that marital rape is acceptable , therefore, the act which is a criminal offense becomes acceptable within marriage.

Recommendation for criminalising marital rape was dismissed by Standing Committee on Home Affairs in 2012on the grounds the at women devise various methods to approach courts and it is not necessary to charge a man with rape.(2) Law Commission held a view that criminalising marital rape is an excessive interference with the matrimonial relations. These pernicious assumptions ignore the duty of state which includes the protection of the rights of a wife as a woman and as a citizen rather focuses on preservation of marriage. It ignores the fact that forced sexual activity even within a marriage implies assertion of male power. It promotes coercive demand of sex by husbands from their wives undermining the fact that letting go of a violent person will not change his sadistic, aggressive attitude. Also, existence of relationship cannot be a defence against sexual violence.

A survey conducted by the International Center for Research on Women revealed that one out of five men of Indian origin admitted forcing their wife for sex.(3) Marital Rape and sexual violence is not limited to vaginal penetration as wives are being thrashed violently, insertion of objects like feet, torch etc into a woman’s genitalia results in harmful consequences like vaginal infections, risk of sexually transmitted diseases, miscarriages, sexual dysfunction, anxiety, shock and even depression. This is accompanied by humiliation and intimidation, therefore, segregation of marital rape from other abuses is not possible.

Further, it is believed that once a woman goes through marital ceremony, she is supposed to give up her body and her rights to her husband. It overshadows the fact that giving consent to enter into marital relationship does not imply perpetual and lifelong consent to be abused sexually. This concept is held unreasonable and vague by courts of UK and USA. But, Indian concept ignores this piece of fact and supports the slavery practiced by wives to their husbands, thereby, leaving her with no remedy.

Violation of Fundamental Rights:

Abovementioned paradoxes are violative of Fundamental Right specially Article 14 & 21 of Indian Constitution. Article 14 uses two clauses ‘equality before the law’ and ‘equal protection of the law’ but provision of IPC discriminates against married woman who have been raped by their husband and provides protection to unmarried woman, thereby, denial of equal protection from rape and sexual violence as it exempts those actions perpetrated by one’s husband. Hence, violates the Right to Equality.

From the case law named State of Karnataka v. Krishnappa,(4)it is evident that courts have begun to acknowledge freedom from unwanted sexual intercourse and denial of unwanted sexual intercourse. But, it does not protect the right of privacy of an individual after entering into marital relation. It also disrupts the clause of ‘right to live with dignity’ as it does not provide protection to women who have been raped by their husbands, leaving them in physical and mental agony.

Further, it violates Article 12 of the Universal Declaration of Human Rights, 1948 which says that a person’s privacy should not be subjected to any arbitrary intrusion or his honour or reputation should be attacked.(5)

How to Tackle The Problem?

The journey to address this heinous act has to begin from each and every household. It is prerequisite to make home safe for women because until there is no recognition of women’s dignity within home itself the situation cannot be controlled. The concept of consent within marriage should be taught and accepted with open arms, thereby, promoting the concept of women’s right over their bodies.

Amendments should be made in judicial system and fundamental structural inequalities in order to demote the idea of dominance and suppression by patriarchy. Changes should aim at the recognition of women’s right irrespective of their marital status rather than maintaining the sanctity of marriage.

Further, women should be made aware of their rights and the concept of maintaining the sanctity of marriage should not overpower fundamental rights.


  4. The State of Karnataka v. Krishnappa, 4 SCC 75 India(2000)

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