Privacy a Fundamental Right: Now What Happens With Marital Rape?

By defining privacy in context of bodily rights & dignity, SC has broadened the contours of the marital rape debate.

(On 24 August 2017, a nine-judge bench of the Supreme Court unanimously affirmed that privacy is a fundamental right under the Constitution of India. One year on, The Quint looks back at what the judges said, and why the historic judgment is so important for all of us.)

In a historic decision, a nine-judge bench of the Supreme Court held that privacy is a fundamental right and that it is an integral part of right to life and personal liberty under Article 21 of the Constitution, and as part of freedoms guaranteed under Part III of the Constitution.

The six opinions in the judgement expand the ambit of privacy from a narrow definition to look at individual dignity, bodily integrity and an individual’s right to privacy in the public and the private sphere. This means that the comprehensive 547-page judgement will have far reaching implications on Aadhaar, Section 377, data protection – and marital rape.

Speaking to The Quint, Supreme Court advocate Karuna Nundy, who’s working on the case on marital rape in the Delhi High Court, said:

In the US, the Roe vs Wade judgement that had found that a woman had the right to bodily integrity was founded on the right to privacy. The arguments on Monday in the High Court should be bolstered by a nine-judge bench of the Supreme Court stating that citizens unambiguously have the right to privacy. It is, of course, subject to reasonable restrictions.

On a reading of the judgement, it is clear that the right to privacy judgement attacks the core of the argument against criminalising marital rape, which is, that rape in a marriage is a ‘private matter’ which the state shouldn’t be allowed to interfere in.

By defining privacy in the context of bodily autonomy and the right to live a life of dignity, the judgement opens up a window of possibility for criminalising marital rape. Justice DY Chandrachud in his opinion, cites arguments which say that “privacy must not be utilised as a cover to conceal and assert patriarchal mindsets.”

Here are further excerpts from the Supreme Court’s judgement which would have import on a wider understanding of marital rape.

A Misunderstanding, and Some Statistics

On 10 August, it was reported that the Supreme Court has said that “forced marital intercourse and sexual acts part of offence of rape in penal law has been extensively debated and now it cannot be considered as a criminal act.” The apex court was dealing with the specific exception to Section 375 of the Indian Penal Code (IPC) which says that the intercourse or sexual act by a man with his wife, not below 15 years, is not a rape.

However, the apex court was not dealing with the issue of marital rape. The bench was hearing a plea questioning the constitutionality of a provision which allows a man to have a physical relationship with his wife who’s aged between 15 to 18.

Lawyers familiar with the case argue that the limited point under consideration was on the question of age of consent and whether a girl below 18 years of age can take an informed decision – irrespective of whether she’s married or not.

Marital rape in India is underreported, and so often under-represented.

According to the National Family Health Survey from 2005-06 cited in an Huffington Post article published in August 2017, 6.6% of women said that they had experienced sexual violence at the hands of their husbands. That’s 66 out of 1,000 women. On the other hand, 0.16% of women – or 1.6 out of every 1,000 women – experienced sexual violence by perpetrators who are not their husbands.

Will a woman’s right to bodily autonomy be buried under society’s construction of a ‘sacred’ marriage? Or will marital rape finally be criminalised? As the petition on marital rape is heard by Delhi High Court in an ongoing case, it’s a question that Indian women will be eagerly awaiting the answer to.

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