Five years ago on August 24, the Supreme Court delivered the landmark nine-judge bench decision in the K.S. Puttaswamy versus Union of India declaring the right to privacy a fundamental right flowing from part III of the constitution of India.
Back then, legal scholars argued that Puttaswamy had the potential to change the legal landscape of women’s rights in India and that it would depend on how the courts subsequently apply Puttaswamy on a case-by-case basis in the right spirit.
On gender equality, Puttaswamy was the basis for two significant Supreme Court decisions: the decriminalisation of same-sex relationships (Navtej Johar vs Union of India) and the scrapping of the adultery law from the Indian Penal Code (Joseph Shine vs Union of India).
The plurality judgment in Puttaswamy also had a separate section titled “feminist critique”, which was elaborated further in the adultery judgment to dispel the concerns of normalising violence within the ‘institution’ of family, home and marriage under the garb of privacy. Scholars have noted that all the judges in Puttaswamy placed the ‘individual’ at the heart of privacy.
However, the marital rape exemption remains entrenched in the Indian Penal Code even today. The Delhi high court in May delivered a split judgment on the constitutionality of the marital rape exemption.
While Justice Shakdher relied on Puttaswamy’s progressive vision of privacy to strike down marital rape exemption, Justice Hari Shankar referred to “unwarranted incursions on the privacy of the marital bedroom” to uphold the exception.
Justice Shankar’s opinion has been a major step backward. It cannot be denied that the removal of the marital rape exemption would be the true realisation of the potential of Puttaswamy for women’s rights in India.
Also read: Delhi HC’s Split Verdict on Marital Rape: Highlights of What the 2 Judges Said
Bull in a China shop
Back in 1984, the Delhi high court, while upholding the constitutionality of Section 9 of the Hindu Marriage Act, which allows the court to pass an order for ‘restitution of conjugal rights’, in Harvinder Kaur vs Harmender Singh Chaudhary, said that: “Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a China shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and married life, neither Article 21 nor Article 14 have any place.”
The decision was delivered five months after the revolutionary Andhra Pradesh high court judgment in T. Sareetha vs T. Venkata Subbaiah wherein the court in a similar challenge struck down Section 9 of the Hindu Marriage Act. T. Sareetha, for the first time in judicial history, envisioned privacy that focused upon a combination of bodily integrity and decisional autonomy.
When the matter reached the Supreme Court in 2013, it upheld Harvinder Kaur and not T. Sareetha.
As the split judgment in the marital rape exemption case is in appeal at the Supreme Court, it is hoped that this time the apex court, especially considering after Puttaswamy’s powerful delineation of the privacy of body and mind, would uphold Justice Shakdher’s decision.
Significantly, Puttaswamy’s vision of dignity was also relied on in the adultery judgment to note that “even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny”. But Justice Shankar’s opinion in the recent marital rape exception judgment is reminiscent of the bull in a China shop analogy when he noted that, “Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her, without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law.” This also brings one to the pertinent discussion on the understanding of the institution of marriage in India.
Also read: Dowry and the ‘Great’ Indian Marriage
Contextualising marriages
Justice Shankar’s opinion, in essence, regards the “institution” of marriage as the sanctified union of the “individuals” in the marriage and equates the individual to the institution. This is a common argument against criminalising marital rape.
Marriages, as understood in this country, continue to be heterosexual, patriarchal and endogamous in nature.
Dr. Pratiksha Baxi’s work on choice marriages highlight the nature of custodial power over women by their natal families in alliance with state and non-state bodies of law and governance. Instead of “honour killing”, as is well known, she suggests “custodial death” – a starker term since the young people killed in such cases are in custody, much like prisoners of their own families.
In her book, Public Secrets of Law: Rape trials in India, she elaborates how love is criminalised as rape when it doesn’t fit into the understanding of heterosexual marriage within one’s caste, class, religion or nationality. Therefore, if institutions are often states of violence, then is it reasonable to invoke the privacy of the “marital bedroom”?
In this regard, Puttaswamy categorically recognised that “gender violence is often treated as a matter of “family honour” resulting in the victim of violence suffering twice – the physical and mental trauma of her dignity being violated and the perception that it has caused an affront to “honour”. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets.”
The belief that women embody “honour” is also what makes raping and killing women of marginalised communities, a means to attack the community.
Further, questioning the argument of homosexual unions being “unnatural”, Dr. Nivedita Menon asks a pertinent question in her book Seeing like a feminist: “The disciplining of thought through families, the media, education, religion – all telling you that desire for someone of the same sex is a sin, or insane or criminal. But if it comes unbidden to you, the desire, and it has to be frightened out of you, then what is ‘natural’ – the thought or its disciplining?”
Considering this background, it becomes all the more important to consider marital rape as a crime so that the institution of marriage can be protected in its true sense of equality. The Puttaswamy judgment while recognising that women have a legitimate interest in privacy laid the framework where privacy is to be understood as not having the State to make decisions about one’s familial relationships – whether and whom to marry, whether and when to have children. Post Puttaswamy, Justice Hari Shankar’s view cannot hold water.
Also read: How the Supreme Court Has Seen ‘Cruelty’ as a Ground for Divorce
The ‘reasonable’ person in law
The term “reasonable person” is very frequently used in judgments and legal discourse. In a seminal work published in 1999, revisiting the decisions of the high courts in the context of matrimonial relationships between 1920 and 1950, Dr. Usha Ramanathan most eloquently described who is a reasonable person in law.
The piece shows how the judiciary’s compassion lay with what a “reasonable man” would do. A “reasonable man” can be absolved from blame because one can identify with him while condemning the “unreasonable woman” who transgresses her boundaries. This continues to find resonance in Justice Shankar’s opinion in 2022 where in considering “legitimate expectation of sex” as a part of marriage and invoking the “marital bedroom”, it is only the “reasonable man” and his privacy which is protected.
Declaring the marital rape exception as “unconstitutional” would be the apt realisation of Puttaswamy’s framework of privacy – grounded in bodily integrity, decisional autonomy, individual dignity and freedom. While overturning the infamous judgment in ADM Jabalpur v Shivkant Shukla, which upheld the decision of the government to suspend fundamental rights during Emergency, Justice Kaul had noted in the Right to Privacy judgment that the Emergency judgment should be “buried ten fathom deep with no chance of resurrection”.
As we complete 75 years of Independence, it is hoped that the marital rape exemption meets the same fate at the Supreme Court of India.
Tiasha Mukherjee is a law researcher at the high court of Orissa.
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