Navigating the Public-Private Divide: Women's Rights and Societal Change • Law Notes by TheLaw.Institute

For centuries, a simple but powerful idea has governed how societies – and their laws – think about women’s lives: that there is a “public” world of work, politics, and civic life, and a “private” world of home and family. The public world has always been considered the legitimate domain of law. The private world has largely been treated as beyond its reach. This divide might seem like a neutral organizational principle, but feminist legal scholars argue it is anything but. It is one of the most consequential and least questioned structures in law – one that has directly enabled the subordination of women and insulated violence against them from legal accountability.

What the public-private divide actually means
How law reflects and reinforces the divide
Domestic violence: bringing the private into public law
Limits of the Act
Sexual violence and the unresolved question of marital rape
The constitutional argument
Why abolishing the divide matters for gender equality

What the public-private divide actually means

At its core, the public-private divide is the idea that the state and its laws govern the public sphere – employment, contracts, property, political participation – while the private sphere of the home and family is a zone of personal autonomy, left largely to individuals. On the surface, this looks reasonable. In practice, as feminist scholars have argued, the public sphere essentially belongs to men while the private sphere is inhabited by women but controlled by men. The law’s reluctance to enter the private domain has therefore not protected women’s autonomy – it has protected the power of those who dominate them there.

This is not a coincidence or an oversight. The liberal legal tradition, from which modern legal systems including India’s draw heavily, was built on individualism and the idea that the state should not interfere in private life. But as feminist jurisprudence points out, women were historically excluded from the public sphere entirely – denied education, property rights, and political participation. At the same time, the violence and inequality they experienced within the home was cordoned off as a “private matter.” The result: women were excluded from the protections of the public legal order while simultaneously being denied protection within the private one.

How law reflects and reinforces the divide

The public-private divide is not just a social attitude – it is embedded in legal doctrine. Before India’s legislative reforms of the late 20th century, there was no statute that specifically addressed domestic violence. Courts treated family conflict as a matter to be resolved within the household. Police routinely declined to intervene in disputes framed as “domestic.” This reflected a deeply held institutional assumption that what happens between a husband and wife inside the home is simply not the law’s business.

As legal scholars have noted, traditionally, interference into “domestic privacy” was seen as a greater evil than actual violence inflicted upon a woman. Courts in earlier periods explicitly invoked the sanctity of the domestic sphere as a reason for non-intervention – protecting privacy over persons. The violence was real; the legal response was silence.

The exclusion operated across two fronts. First, women were kept out of public institutions: discriminatory service rules in government employment, exclusion from certain professions, restricted property rights. Second, the harm women suffered in private – dowry harassment, physical assault, sexual violence within marriage – was rendered legally invisible by framing it as a domestic matter. Liberal feminist theory identifies this dual exclusion as the root of female subordination: legal and social barriers preventing women from succeeding in the public world, combined with a refusal to regulate the private world where they are most vulnerable.

Domestic violence: bringing the private into public law

The most significant legislative challenge to the public-private divide in India came with the Protection of Women from Domestic Violence Act, 2005 (PWDVA). Before this Act, “domestic violence” was not even defined in Indian law. The Indian Penal Code addressed cruelty to wives under Section 498A, but this applied only to married women and only to physical and certain forms of mental cruelty. The range of harm women actually experienced – economic deprivation, emotional abuse, sexual violence within marriage, isolation – went unaddressed.

The passage of the PWDVA was described as the culmination of a long-drawn struggle by the women’s movement for bridging the public-private divide and eliminating violence within the home. For the first time, the law recognized that the home is not beyond regulation. The Act defines domestic violence broadly to include physical, sexual, emotional, verbal, and economic abuse – explicitly acknowledging that financial control and deprivation are forms of violence, not merely personal matters. It extended protection beyond wives to women in live-in relationships, recognizing that the law cannot confine itself to formally recognized marriages while leaving other women unprotected.

Critically, the Act also entitles a woman to continue residing in the shared household, even if she has no ownership title over it. This directly counters the private-sphere argument that the home “belongs” to the husband and that the law has no role in determining who lives there. The PWDVA is the first substantial step toward vanquishing the questionable public-private distinction traditionally maintained in Indian law – moving domestic violence from the realm of family shame to the domain of legal rights.

Limits of the Act

Progress, however, is uneven. The PWDVA is a civil law, meaning its primary mechanism is protection orders rather than criminal punishment. A breach of a protection order is cognizable, but initial violations alone do not automatically trigger arrest. Implementation has also been hampered by inadequate infrastructure – insufficient Protection Officers, limited shelter homes, and, as scholars like Nivedita Menon have cautioned, patriarchal attitudes within police and judicial institutions that effectively nullify the law’s promise on the ground. The text of the law can be progressive; its enforcement depends on institutions that often are not.

Sexual violence and the unresolved question of marital rape

If the PWDVA represents progress, the marital rape exception shows how much distance remains. Exception 2 to Section 375 of the Indian Penal Code – now replicated in the Bharatiya Nyaya Sanhita – states that sexual intercourse by a man with his own wife is not rape. India remains one of very few countries that explicitly decriminalizes marital rape, treating the marital relationship as a legal barrier to the crime of rape rather than an aggravating context.

The logic behind the exception is rooted in the same public-private divide: marriage is a private institution, and what happens within it – including sexual violence – is not the state’s concern. The judiciary’s disinclination to criminalize marital rape flows from a vertical approach to constitutional rights, which fosters a public-private divide to the disadvantage of women. Constitutional rights are treated as protections against the state, not as rights that operate horizontally between individuals – which means the abuse a woman suffers at the hands of a private individual, especially a husband, falls outside their scope.

The J.S. Verma Committee, constituted after the 2012 Nirbhaya gang rape, recommended criminalizing marital rape, arguing that the immunity stemmed from the outdated notion of women being the property of their husbands and irrevocably consenting to their sexual needs. Despite this, the Criminal Law (Amendment) Act, 2013 did not adopt this recommendation. The Parliamentary Standing Committee rejected it on the ground that doing so would put the institution of marriage “under greater stress.”

In May 2022, the Delhi High Court delivered a split verdict on the question. Justice Rajiv Shakdher held Exception 2 unconstitutional, finding it violated Articles 14 (equality), 15 (non-discrimination), 19(1)(a) (freedom of expression), and 21 (life and liberty). Justice C. Harishanker took the opposite view, leaving the matter to the legislature. The Supreme Court is now hearing the consolidated petitions. Meanwhile, the National Family Health Survey (2019-21) found that 82% of married women aged 18-49 who experienced sexual violence identified their current husbands as the perpetrators – and that nearly 9.9 out of 10 cases of sexual assault go unreported in India.

The constitutional argument

The case for criminalizing marital rape is not just policy – it is constitutional. Exception 2 violates Article 14 insofar as it creates two classes of women based on marital status, denying married women the same protection from rape available to unmarried women. It violates Article 21 as well: the Supreme Court has repeatedly held that the right to life encompasses the right to health, dignity, and privacy, and the Court has specifically recognized that every woman is entitled to sexual privacy. A law that decriminalizes non-consensual sex within marriage directly undermines each of these rights. India’s international obligations under CEDAW and the ICESCR leave no room for ambiguity either – laws criminalizing rape should be absolute, and exceptions carved out for the family sphere constitute human rights violations.

Why abolishing the divide matters for gender equality

The feminist critique of the public-private divide is not simply that the law should intervene more in people’s personal lives. It is a more precise argument: that the selective enforcement of legal neutrality – keeping the law out of the home while enforcing it rigorously in the market and public square – produces and sustains gender inequality. Women’s most serious and frequent experiences of harm happen in private contexts. Treating those contexts as beyond law’s reach is not a neutral act. It is a choice that benefits those who hold power in those spaces.

Feminist lawyering in India has consistently pushed against this framing – demanding that courts and legislators understand the connection between the private injuries women experience and the public rights they are constitutionally guaranteed. The Constitution itself, as Chief Justice Chandrachud has noted, is feminist in its commitments to equality, liberty, and social justice. The challenge is to make those commitments real in the spaces – homes, marriages, families – where they are most systematically violated.

Laws addressing domestic violence and sexual assault are not incursions into private life. They are the basic extension of the rule of law to the places where women actually live. As long as the home remains a space where rights are suspended rather than enforced, the promise of constitutional equality will remain formally intact and practically hollow. Feminist legal theory’s application in Indian jurisprudence continues to push for substantive equality – not just formal guarantees on paper, but enforceable rights in every sphere of a woman’s life.

What do you think? If the Constitution guarantees every citizen the right to life and dignity, should those rights be any less enforceable within a marriage than outside it? And if the law already intervenes in the home to enforce property rights and contracts, what justifies its reluctance to intervene when the issue is a woman’s physical safety?

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Navigating the Public-Private Divide: Women’s Rights and Societal Change

Table of Contents

What the public-private divide actually means 🔗

How law reflects and reinforces the divide 🔗

Domestic violence: bringing the private into public law 🔗

Limits of the Act 🔗

Sexual violence and the unresolved question of marital rape 🔗

The constitutional argument 🔗

Why abolishing the divide matters for gender equality 🔗