Research Topic: Right to Privacy a beacon of hope to marital rape victims

Research Questions:

1. Can the right to privacy protect a woman from marital rape and if not how it serves as the
first step towards it?
2. Why is it that marital rape is not being decriminalized?

LITERATURE REVIEW:
Marital Rape is one of the most heinous sexual offense that has not been criminalized.
It has been given a licensed to remain legal under the exception of the Indian Penal Code of
section-375. Marital rape exception allows a husband to sexually violate her wife and not be
penalized for it. The origin of the marital rape’s exemption roots from the social understanding
that women were the property of men, first of their fathers, and then husbands. The rape laws
were enacted as property laws, to protect a man’s property (a daughter or wife) from other men,
not as laws to protect the right of a woman or their dignity. In the beginning, the penalty for rape
was intended to punish a man for defiling another man’s property. The husband could get
compensation for the rape of their wife but he could not be charged with rape. The same
proposition was strongly supported by in 17th century in England; “The husband can not be
guilty of a rape committed by himself upon his lawful wife, for their mutual matrimonial consent
and contract, the wife hath given up herself in this kind unto the husband which she can not
retract(Sir Matthew Hale, Chief Justice ).”The present exception of spousal or marital rape from
the definition of rape perpetuates the problem because it allows the husbands to believe that their
behavior is acceptable legally as well as socially. In Indian society chastity of women is of
paramount importance and virginity is a prerequisite in a girl to become a bribe; and after
marriage, a girl becomes the exclusive property of her husband(“Rape and Victim of Rape). This
ideology has been time and time upheld in numerous cases. One of the main defense given in not
criminalizing such rape is that the traditions allow man supremacy over his wife. In contrary to
what is stated, the most renowned books of Indian culture and traditions frown upon marital
rape. Vatsyayana warns husbands (especially in the context of arranged marriages) not to force
themselves on their wives: “Women, being of a tender nature, want tender beginnings, and when
they are forcibly approached by men with whom they are but slightly acquainted, they
sometimes suddenly become haters of sexual connection, and sometimes even haters of the male
sex. The man should, therefore, approach the girl according to her liking.”In addition to
legalizing marital rape, the law also offers a loophole to husbands who file for restitution for
conjugal rights under Section-9 of HMA. In Saroj Rani v Sudarshan Kumar Chadha S.C held
that section 9 only compels a woman to cohabit with her husband and does not force her to have
sexual relations with him but as marital rape is legal in India even the husband violates her she
can not hold him criminally liable. The right to privacy shines a light of hope when it comes to
marital rape. In K.S. Puttuswamy v Union of India, a historic and landmark decision, a 9-judge
bench of the Supreme Court pronounced that the right to privacy is a constitutional right which is
not only rooted in the right to life and liberty but also enshrined in all other fundamental rights,
including the right to equality and the fundamental freedoms. The Supreme Court held that
individuals have a right to privacy which grants them complete autonomy over their bodies The
judgment is fascinating in the way in which several judges refer to the right to gender identity
and other rights relating to one’s intimate life in a very outspoken manner. J. Bobde held that the
right to privacy is confined not only to intimate spaces such as the bedroom or the washroom but
goes with a person wherever he or she is. Privacy has been defined quite simply as the right to be
left alone by Justice Chandrachud. The Court referred to several key decisions around women’s
autonomy over their bodies and sexuality as part of the right to privacy, including the right of
women to work during at night, protection of reproductive rights, the right to bodily integrity, the
rights of unwed mothers, the right against forced sterilization and the right to decide on marriage,
procreation and the choice of family life. These, the Court held, were matters of one’s most
intimate and personal choices and essential in the pursuit of happiness, which is founded upon
autonomy and dignity. Nonetheless, there is a lack of research on how come women lose their
bodies right after marriage, and if marital rape promotes sexual slavery.

Rough Structure Of The Paper:

1. Introduction:
a)Include at least a catchy phrase if not a paragraph.
b) Introduction to the topic of marital rape and the law dealing with the topic(BRIEFLY).
c)Introducing the right to privacy.
2. Marriage and Marital rape:
a)Defence of Marital rape
c)Political and legal stands on Marital rape.
d)marital rape promoter ofsex slavery
3. Right to privacy:,
a) does it offer a isremedy?
b) how is it the first step towards criminalizing marital rape?
4. conclusion

Right To privacy A Beacon Of Marital Rape Victims

“INDIA GAINED IT’S INDEPENDENCE IN 1947 BUT THE WIVES ARE STILL SLAVES TO THE
COLONIAL NORMS.”
The Indian Penal Code of 1860, enforced before the country achieved its freedom is still followed post-
independence. Under section 375 which defines Rape, It has an exception :
“Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not
rape.”(IPC,1860)1

1 Indian penal code,1860

The Indian penal code considers that if a rape is committed by the husband himself then that won’t be
counted as rape. This regressive approach to such a heinous offense originates from the colonial idealogy
of perceiving women as property. This idealogy has existed since the Roman empire. A woman since
time immemorial was considered a man’s asset. The existence of rape laws was first enacted as property
laws where a man can get compensation if his wife was raped.

The deep-rooted chauvinism can be observed in the proposition to legalize marital rape which was
supported by Sir Matthew Hale, Chief Justice In 17th century London:-
“The husband can not be guilty of a rape committed by himself upon his lawful wife, for their mutual
matrimonial consent and contract, the wife hath given up herself in this kind unto the husband which
she can not retract.”

Right to privacy has not been defined in the Indian constitution but it has not been considered a
fundamental right under Article 21 of the constitution that is Right To Personal Life And Liberty:
“Protection of life and personal liberty No person shall be deprived of his life or personal liberty except
according to the procedure established by law.”
 Marital rape and Marriage

Marriage under Hindu law has always been considered a sacrament. According to satpata brahmana, a
man is half of himself and can only be completed by his Ardhangini which translates to half of man. A
man cannot fulfill his social, religious, and physical duties without his better half. His wife is her best
friend and he must support her in every case as long as she is faithful. Manu asked men to honor their
wives saying,” a home where a woman is honored there the gods are pleased, but where they are not
honored no sacred rites can yield rewards.”

Defense of Marital rape

Marital rape stems from the long-practiced and deeprooted concept of patriarchy. There are various
defenses used by the supporter of marital rape which is as followed:

1. A sacrament and a cultural practice

One of the reasons given for not criminalizing marital rape is the belief that a Hindu marriage is a
sacrament and it would go against the long-practiced culture if it is criminalized. What this defense lacks
is the knowledge that Hindu marriage does not have sacramental characteristics anymore as, under The
Hindu marriage act,1955 provisions for divorce and remarriage of the widow has been recognized. Thus
the sacrament which is trying to be protected has already been done away with it in the first place.This
being said a Hindu marriage is also not a contract either and lies in between them. Marriage is a
relationship that is built on the foundation of trust and respect. They both shall provide a safe space for
each other by respecting other’s decision and by establishing trust that they will never intentionally harms
one another.Spousal rape, however, is contradictory as there is coercion which breaks the two major
foundations on which marriage is built on.Thus the defense which is used to protect the institution of
marriage in reality hollows a holy bond.The foundation are replaced with fear and submission by the
abuser.

This coercion is backed by arguments which state that culture allows marital rape as the partner must
fulfill the sexual duties even if it involves force.In contradictoire there are ancient texts which detest the
idea.Vatsayana the writer of the Kamasutra lays down the following way to approach the wife after
marriage in the second chapter titled Kanya Visrambhana:
 · One should not expect sexual intimacy on the first three nights of marriage and immediately the
first thing on the fourth day. The couples should be at ease and willingly enter into sexual intercourse

· They must try to establish an emotional connection. They can talk about their interests and find
something common if they don’t know each other.In later days a physical contact can be introduced
by the will of both but it should not be below the waist.

·
Vishnu Purana also mentions that a man should not force her wife to have sexual relationships if she is
unwilling. Under Vishnu puran 3.11
114-117. Here nanistam is the word unwilling

ऋतावुपगमः शस्तःस्वपत्न्यामवनीपते ।
पुन्नामर्क्षे शुभे काले ज्येष्ठायुग्मासु रात्रिषु ॥ 3.11.114॥
नाद्युनां तु स्त्रियं गच्छेन्नातुरां न रजस्वलाम् ।
नानिष्टां न प्रकु पितां न त्रस्तां न च गार्भिणीम् ॥ 3.11.115॥
नादक्षिणां नान्यकामां नाकामां नान्ययोषितम् ।
क्षुत्क्षामां नातिभुक्तां वा स्वयं चैभिर्गुर्णैर्युतः ॥ 3.11.116॥
स्नातःस्रग्गन्धधृक्प्रीतो नाध्मातः क्षुधितोपि वा ।
सकामःसानुरागश्च व्यवायं पुरुषो व्रजेत् ॥ 3.11.117॥

(ṛtāv upagamaḥ śastaḥ svapatnyām avanīpate /

punnāmarkṣe śubhe kāle jyeṣṭhayugmāsu rātriṣu //
nāsnātāṃ tu striyaṃ gacchen nāturāṃ na rajasvalām /
nāniṣṭāṃ na prakupitāṃ nāpraśastāṃ na garbhiṇīm //
nādakṣiṇāṃ nānyakāmāṃ nākāmāṃ nānyayoṣitam /
kṣutkṣāmām atibhuktāṃ vā svayaṃ caibhir guṇair yutaḥ //
snātaḥ sraggandhadhṛk prītaḥ nādhmātaḥ kṣudhito 'pi vā /
sakāmaḥ sānurāgaś ca vyavāyaṃ puruṣo vrajet /)

It roughly translates to:

· During the time when planet are in auspicious position one should have sex with his wife.
 · He should not approach a woman who has not bathed or is sick

· He should not approach her if she is menstruating,

· He should not approach her if she is pregnant, unwilling(nastitam), angry, lacking in libido
(nakamam) or committed to another (anya-yoshitam).

· When engaging in sexual intercourse (vyavayam) he must have taken a bath and have a
aroused and affectionate mood.

2.Poverty

Indian gives a defense that due to the lack of education and poverty marital rape can’t be
criminalised.India comes with countries like Ghana, Saudi arabia ,oman, Indonesia who have not take an
action againt marital rape.Such defence again is very vague and lack proper research. Countries such as
Rwanda(GDP-PPP$ 2,452) Mozambique(GDP-PPP$ 1,303) and Nepal(GDP-PPP$ 3,318) which are
more knee deep in poverty(2020 list)in comparison to India(GDP-PPP$ 8,378) have already criminalised
marital rape. Nepal being a Hindu state has also recognised marital rape as a crime and quashed the
defense of it being a sacramental and a cultural practice.These 3 countries also have a less literacy rate
with Nepal having 67.9% in 2018,Rwanda having 73.2% in 2018 and Mozambique having 60.7% in 2017
rate as compared to India (74.4 % in 2018) but have protected the sexual rights of women, unlike India.

3. Fear of misuse:

The central government as well as other people argue that if a law in regards to criminalize marital rape
comes into being then the courts of the country will be filled with false accusations against men. This as a
result will not only exhaust the courts all over the country but will disrepute and defame a man’s
character in the society he lives in. This defense is completely tone-deaf towards the crippling
psychological impact of living with a perpetrator. It also ignores that that the it can make woman prone
to rape trauma syndrome. It is also necessary to point that any law can be misused. There can be false
accusations about murder, conspiracy, etc but that does not mean that such laws should not be
administered. In Budhan Choudhry and Ors. v. The state of Bihar, AIR (1955) SC 191 contention was
filed which sought to remove 498-A as the provision was arbitrary and violative of article14 of the
constitution and can be abused for personal vendetta.
498-A of the I.P.C says:. A Husband or relative of husband of a woman subjecting her to cruelty.—
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which may extend to three years and shall also be liable
to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.

It was held that the mere possibility of abuse can not make the provision arbitrary and violative of
article 14 of the constitution.

The same decision was also seen in the case of Mafatlal Industries Ltd. and Ors. v. Union of India
and Ors., [1997] 5 SCC 536 and State of Rajasthan v. Union of India, [1977] 3 SCC 592 where it
was held that just because a provision provides the power and the power is sometimes abused doesn’t
mean it’s existence should be denied.

Provision maybe be abused but that does not mean that an offense does not exist.

Political and legal stands on Marital Rape:

The central government has submitted an affidavit before the Delhi High court in 2017 stating that
criminalizing marital rape would lead to the deinstitutionalization of marriage as well as the reputation
of men will be in jeopardy as they may be falsely accused in such provisions. It also says that there is no
statistical proof of marital rape victims and denies their existence.

MP Shashi Tharoor has introduced the private member’s bill ‘The Women's Sexual, Reproductive and
Menstrual Rights Bill, 2018. He has emphasized that marital rape is not about marriage but about a lack
of consent.According to the National Health and Family Survey (NFHS-4) for 2015-16, 5.4% women
have experienced marital rape. 4.4% of them admitted to being raped by their husband just last
12months before the survey. The data also recorded if they were forced to do sexual acts that they did
not want to or if they were threatened to perform those activities that she did not want to by their
husbands in which 2.5% and 3.6% said yes which took the percentage of total 11.5%.

The judicial system views on marital rape shows conflict. It has said time and time again that
criminalization of marital rape is an issue that parliament has to deal with as it does notcome under the
 purview of it ‘powers.

The judiciary although does not want to take any decision on the topic of marital rape it indirectly gave
it a green light it as seen in the case of SAROJ RANI VS. SUDARSHAN KUMAR AIR 1984 SC
1562.It upheld the constitutional validity of section 9 of The Hindu Marriage Act.1955 which states:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of
the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal
rights and the court, on being satisfied of the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted, may decree restitution of
conjugal rights accordingly.”

It ruled that this section simply wants the couple to cohabit and does not compel sexual relations. It just
wants the couple to set aside their differences and give a second chance to the marriage. Although the
court ruling states that cohabitation does not include sexual relations , by making a woman to cohabit
with her husband he leaves a gap. A woman in such a time may be raped by his husband but would not be
able to press charges as marital rape is not criminalised.

MARITAL RAPE PROMOTER OF SEX SLAVERY

Marital Rape also turns the wife to a sex slave. A slave is a person who has no bodily rights of her own
and is at mercy of his owner. Not criminalising Spousal rape makes the marriage stoop down to a slave-
owner relationship and not giving a way out to the victim the law offers and advantage to the culprit. The
wife is used as an object made for pleasure and nothing else.Taking an example of a woman who with the
help of advocates in Human Rights Law Network (HRLN),New Delhi approached the Supreme Court
but the apex court dismissed the plea on the ground that it is not possible to change a law for one person.
She says,” He would insert things inside me, slap me, and bite me. I had bite marks all over my breasts.
Even during my mensuration, he wouldn’t spare me. The torture is not just limited to that one incident. I
also lost my job of working as a human resources executive in a multi-national company because I wasn’t
able to work..”

RIGHT TO PRIVACY
Right To Privacy has fought a long battle in order to be recognised as a fundamental right.The first case
that dealt with the questionof privacy being a fundamental right was MP Sharma v. Satish Chandra
which was decided by an eight judge bench in 1954. It held that that there is no mention of privacy being
a fundamental right. In subsequent case Kharak Singh v. State of Uttar Pradesh, decided by six judges in
1962 stated that while Unites states of america does recognise right to privacy it’s not recognised by the
constitution of India.

In K.S. Puttaswamy v. Union of India the issue of right to privacy was brought back by the 91 yr old
retired High court judge of Karnataka before a 9 judge bench.Although the case actually challenged the
Adhaar card scheme of the government It brought major changes in regards to bodily integrity as well.

The ancient definition of privacy followed in India was very vague. It stated that marital issues should not
be disclosed and should be sorted within the family . This was still being followed by the Indian judiciary
in regards to marital rape. The court restricted itself in interfering with marital issues even when it came
to such a heinous crime but the judgement made in the case replaced the orthodox definition with a new
one.Privacy under K.S. Puttaswamy v. Union of India is defined as a right to be left alone.

justice Nariman, ruled that right of personal choice the substructure of right to privacy. He writes that
“the dignity of the individual encompasses the right of the individual to develop to the full extent of his
potential. And this development can only be if an individual has autonomy over fundamental personal
choices.”

Justice Kaul stated: “Privacy is about respecting an individual and it is undesirable to ignore a person’s
wishes without a compelling reason to do so”

Justice Chandrachud ruling also established that the misinterpretations of privacy has led women to be a
victim of gender and sexual violence . The misguided definition always let go such crimes and
submerged women under these offences offering them no way to escape.Although the judge inthis case
has recognised and indirectly stated that sexual offences such as marital rape are against the article 21 of
the constitution no such remedy has been offered.
Nevertheless the case stands as landmark judgement when it comes to dealing with sexual offences as it
rules a very progressive and feministic approach. It shows how much the ideology in regards to sexual
offences has change from Harmander Kaur v Harvinder Singh Choudhary Sharma which stated that a
woman should be compelled only to cohabitating blind siding from a fact that a woman can be forced in
such instances and won't be able to seek remedy leaving a loophole for culprits.

Conclusion:

Marital rape is a heinous crime one which physically and mentally destroys a woman.It can no longer be
cloaked under the defence of marriage being a sacrament. Rapist is a rapist even if he masks as a
husband.The right to privacy shines a huge beam of hope and serves as the revolutionary judgement.Even
Though it can’t provide with remedies to the victims it has started a revolutionary fire fueled by the
anguish of each and every woman of the country who seek to be the owner of their own body.