The Uses and Abuses of Marital Privacy
How strong is the marital privacy argument to justify marital rape exception in a post-Puttaswamy era?
Pending before the Supreme Court are a batch of petitions challenging the constitutionality of the marital rape exception (MRE) present in Section 375 of the Indian Penal Code, 1860 (IPC). The MRE exempts married men from any allegations of rape where they have intercourse with their wives; the wife not being below 18 years of age.
Women’s rights groups have long called for the deletion of the MRE, arguing that its existence legitimises rape within marriage. This led to the Law Commission of India reviewing this provision in 2000. In its report, the Law Commission decided against deleting the exception because it would lead to undue state interference within marriage. Twelve years later, when the government was reviewing the recommendations of the J.S Verma Committee Report, post the Nirbhaya incident, it too rejected the recommendation to delete MRE from the IPC on the ground that it would harm the Indian family.
Versions of this argument—breakdown of the Indian family system due to State interference (the ‘marital privacy’ argument in short)—are routinely cited to block any legislative attempts to remove the MRE from the IPC.
Yet, a careful examination of judicial precedents and legislative developments reveal that this argument may be nothing more than a smokescreen. The State and the judiciary routinely pierce the marital veil for a variety of legitimate reasons. Further, post the nine judge bench decision in Puttaswamy (2017), the meaning of privacy itself has undergone a sea-change leaving very little room to justify the continued existence of MRE in the IPC.
The Origins of Marital Privacy
To understand why the marital privacy argument is cited routinely, it would help to briefly trace its origins.
The Indian Constitution does not explicitly mention privacy as a fundamental right. Early Supreme Court decisions refused to treat privacy as a fundamental right. However, this changed in 1975 when a three-judge bench of the Supreme Court in Gobind v State of Madhya Pradesh, recognised a right to privacy under Article 21 of the Indian Constitution. However, the framing of privacy in the judgement was left deliberately vague. The Court noted that, “any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing. ”
As constitutional scholar Gautam Bhatia has argued, this framing of privacy highlights its multifaceted nature. There is the spatial dimension (the home), an institutional core (family and marriage) and personal/individual liberty or decisional autonomy aspects of privacy (motherhood, procreation, child rearing) all mashed together in this above definition.
However, a thorny question that the SC avoided in Gobind and many subsequent decisions was what would happen when there was a conflict between these three facets of privacy. In upholding marital privacy, can the State ignore decisional autonomy of individuals within a marriage? This question came up in cases challenging the constitutionality of Section 9 of the Hindu Marriage Act, 1955 (HMA).
Fundamental Rights is to Family What a Bull is to a China Shop
Perhaps the most infamous judgement where marital privacy was raised to sacrosanct status was in the Delhi High Court case of Harvinder Kaur v Harmander Singh Choudhry (1983) (‘Harvinder’). In this case, the constitutionality of Section 9 of the HMA was under challenge. This section provides that when the husband or the wife ‘withdraws from the society of the other’ without a reasonable cause, the aggrieved spouse may approach the court for a decree of restitution of conjugal rights (RCR). Failure to comply with such a decree could lead to the attachment of one’s property. The Court in Harvinder Kaur had to consider if the State could compel an adult to return to the matrimonial home against their wish. Would doing so violate a person’s right to autonomy/liberty and bodily integrity?
An earlier judgement delivered the same year by the Andhra Pradesh High Court in T. Sareetha v T. Venkata Subbaiah,(1983) (T. Sareetha) categorically held that the State had no such power. Justice P. Choudhary struck down Section 9 of the HMA as being unconstitutional for forcing a woman to return to the matrimonial home after she left voluntarily. Thus, exposing her to violence and sexual coercion and violating her right to autonomy over her own body.
However, the Delhi High Court in Harvinder Singh felt that T. Sareetha misunderstood the goal of RCR provisions. Section 9 of the HMA was not meant to force conjugal relations but rather to provide an opportunity for reconciliation. Infamously, the Delhi HC observed that introducing principles of Constitutional law within the home and married life would be like introducing a “bull into a china shop.” In other words, the judges in Harvinder Kaur, were prioritised preserving marital privacy over an individual’s right to decisional autonomy within marriage.
The Supreme Court had a chance to consider these two conflicting opinions in Saroj Rani v Sudarshan Kumar (1984). In this judgement, it upheld Delhi High Court’s verdict in Harvinder and paid little attention to Justice P. Choudhary’s focus on the right to autonomy and bodily integrity.
Piercing the Marital Veil
The above case presents a model for marital privacy acting as a smokescreen for State inaction in cases of domestic violence and abuse. It took a protracted feminist campaign to show why the private sphere of the home could be just as violent for women as public spaces. The enactment of provisions to protect against marital cruelty in the IPC (498A) and through the law on domestic violence is a testament to this fact. These laws enable the State and Courts to pierce the veil of marital privacy to protect against abuse. Since marital rape is also a form of violence, the State cannot again hide behind the false public-private dichotomy and cite the preservation of marriage as a justification for non-interference. The State has an equally valid if not higher duty to protect citizens from violence, whether it be within the private or public sphere.
Moreover, it is worth pointing out that a high threshold of violence is not always necessary to pierce the marital veil. The State and judiciary have waded into the marital bedroom with alarming frequency to decide routine matters like annulment and/or dissolution of marriage. Often, the grounds for seeking annulment or divorce lead to deeply personal questions that courts have to preside over.This includes, whether the marriage was sexually consummated, whether the parties are impotent etc. To determine such cases, courts sometimes direct parties to undergo medical tests and sometimes even ‘gender tests’.
Despite violating personal autonomy, the Supreme Court has permitted such interference. It has held that it would be virtually impossible to arrive at a conclusion without such interference. The right to privacy within marriage is not absolute and has to be balanced against the right to fair trial. Between the two, it is the right to fair trial that has taken precedence. This is not surprising given that marital laws in our country are largely fault based. Significantly, the Court has never considered marital privacy as an impediment to fair trial.
This demonstrates just how weak the marital privacy argument really is. Therefore, it would be hard to rely on such an argument given that the Court already routinely peeks into the marital bedroom for a variety of reasons.
Decisional Autonomy Within Marriage
As demonstrated above, the marital privacy argument is not a strong one when it comes to defending the constitutionality of the MRE. Additionally, there is another prong of argument that is available to the petitioners challenging the constitutionality of the MRE— invoking decisional autonomy for individuals within marriage.
In the landmark Puttaswamy judgement in 2017, privacy was recognized as a fundamental right under Article 21. Post Puttaswamy, the meaning of privacy itself has undergone a sea-change. As Bhatia argues, the true brilliance of Puttaswamy lies in clearly establishing that a right to privacy could not be grounded in spaces (home) or institutions (marriage). Rather, it ought to be grounded in the individual and their autonomy to make choices about the most integral aspects of their lives, their bodies, who they love and how they choose to live. Understood this way, privacy becomes a powerful constitutional tool to strike down the MRE. By shielding married men from allegations of rape, the State violates the bodily integrity of married women and leaves them unprotected against violence and abuse.
Privacy of the marital bedroom maybe important, but it can never be more important than the individual/decisional aspect of privacy. Post-Puttaswamy, courts are beginning to recognize this principle. In Joseph Shine v Union of India, delivered in 2018, the Supreme Court decriminalised adultery. While doing so it observed, “Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when the rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution.”
This is a long way from the Harvinder decision and signals an important shift in the constitutional jurisprudence on privacy. It remains to be seen whether the current pending matter on the constitutionality of the MRE will centre decisional autonomy in its ruling.