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Right to Privacy within Marriage in India

Meaning and Interpretation

The law of the land has established right to life as a fundamental right and the courts have structured the meaning of life. Article 21 of the Indian Constitution provides, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.1 Courts have opined that the word life does not simply means sustenance but it also encompasses dignity, freedom, privacy, etc.

Privacy is an essential requisite for a meaningful life. The term privacy is no where defined in the Constitution and is subject to judicial interpretation, which has made it a fundamental right within Article 21. Privacy includes physical non interference, bodily integrity, psychological freedom and confidentiality.2 The courts in R. Rajagopal v. State of Tamil Nadu3, and People’s Union for Civil Liberties v. Union of India4 interpreted privacy as essential to life and is a part of fundamental rights guaranteed under Article 21, hence privacy is a right to be alone 5 or a state of non interfere without any justification by anyone. However, the question stands as what if this individual right comes in conflict with the rights of an institution like marriage. The lawmakers and interpreters have tried to balance both the sides.

Legal Outlook of Privacy within Marriage

Marriage is a bond of love and trust. This institution has given some inherent rights to each partner but there are situations when this social and legal entity encroaches the privacy of the partners and then courts have a duty to look into the matter to check how far is this encroachment valid.

In Rajalakshmi M. Bhuvaneshwari v. Nagaphomendar Rayala,6 the husband demanded the phone recordings of his wife with another man in order to prove her illegal relationship with that man but the wife denied. The court held that neither the husband can demand such thing nor can he tap her phone as it is violative of her right to privacy and marriage does not give unreasonable privilege to do such an act.

In Sharda v Dharmpal7, the court opined that right to privacy has some restrictions and hence in this divorce proceedings, the court stated that it is necessary to submit reports of medical treatment if the same is substantive to the case and it is not violative to the right to privacy of the spouse under Article 21.

In Surjit Singh Thind v. Kanwaljit Kaur8, the husband wanted to present the virginity test of his wife as she was demanding divorce on ground of him being impotent. The court rejected the demand of the husband and opined that asking a woman to give her virginity test is violative to right to life with dignity and also her privacy under Article 21 of Indian Constitution.

Thus the court so far has been protecting the realms of privacy within marriage institution but some aspects of female’s rights are still neglected. India still has not criminalised marital rape and this violation of her sexual sovereignty continues.

Right to Privacy: Women Right to Sexual Activities

When the legal marriage doctrine which lay emphasis on moral purpose of marriage is the duty and the right to sexual privileges comes in conflict with sexual sovereignty of an individual, which one should prevail? The patriarchal system of India gives an upper status to men. The law philosophers believe that a marriage merges two individual as one unit and the right of this marital unit is above the individual privileges. The superior sexual authority that is man simply takes away his wife’s sexual privacy.

Though the constitution acknowledges privacy and liberty as fundamental rights of every individual yet when it comes to marriage, the woman’s claim remains dead. This juxtaposes legal rights of a woman over the legally protected rights of a husband over his wife’s body.

Marital rape is a heinous crime that is yet not considered as crime in India. A mere bond of marriage reduces a woman to a slave which has rights over everything except her own body. She has to be obedient to the will of her husband’s sexual demand irrespective of her own will or liberty to say no. Rape is a crime in India.

So, if the perpetrator is the husband, it simply absolves him of any crime. The societal values of marriage give the man an absolute right over his own wife. The wife forfeits her legal existence and this also means surrendering her independent rights in law which the husband assumes as his own.9 The duty to cohabitation is an absolute submission of women’s consent and liberty but no law in India ever questions this submission as injustice.

The legal philosophers argue that if marital rape is made a crime in India then it will be misused by many but mere misuse of law cannot be taken as a bargaining chip for in toto absence of law. Though the problem of proving a marital rape in court would be very critical yet the law of the land needs to make marital rape a crime to protect the sexual sovereignty of women. The state is under an obligation to protect the rights accorded on every citizen and if any form of violence meted on woman is the failure of State duty. Sexual abuse does infringe women’s fundamental rights and mere fact of the known identity of the offender cannot make the abuse as no offence.


It is a well known proverb that a man’s house is his castle but now a wife’s body needs to be looked as her castle and she must be given every right to protect the same. Sexual privacy or right to bodily integrity must be awarded as subset of fundamental rights as every individual has a right to life with dignity which also include physical integrity. The evangelical approach by government of protecting the matrimonial tie by not including marital rape as a crime is breach of women’s right to life. Law of the land must give equal sexual rights and make marital rape a crime as it violates the women’s bodily integrity and privacy as her will to indulge in sexual activity matters. Sex without consent will always be rape and mere legal status as a husband cannot make the act as love making.


By Aarvi, Rajiv Gandhi National University of Law, Punjab


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