Law: Rethinking the Marital Rape Exception in India

This Blog is Written by Vashishth Anand Choumal, 5th Year, BA LLB, KES’ Shri Jayantilal H. Patel Law College, Mumbai, & Surbhi Agrawal, 4th Year, BA LLB, KES’ Shri Jayantilal H. Patel Law College, Mumbai.

Blog 13 | Edition VII

The Right to Say No Within Marriage

Consent cannot reasonably be treated as a one-time decision made at the beginning of a marriage. It is capable of changing according to circumstances. Consent to one sexual act does not necessarily amount to consent to another, nor does consent on one occasion establish consent for the future. Marriage creates mutual obligations, but those obligations cannot logically amount to permanent control over a spouse's body. The legal recognition of marriage should not be confused with an unrestricted entitlement to sexual access. This issue also has a constitutional dimension. In Joseph Shine v. Union of India, the Supreme Court questioned patriarchal assumptions that treated women as subordinate within marriage and emphasised constitutional values of dignity and individual autonomy. The Court's broader Article 21 jurisprudence has similarly recognised privacy and personal autonomy as important aspects of personal liberty. Sexual choices are among the most intimate decisions an individual can make. Consequently, the question of consent within marriage cannot be separated from the constitutional value of bodily autonomy.

The Misuse Debate in Criminalising Marital Rape

A balanced discussion must acknowledge the concern that criminalising marital rape could lead to false or exaggerated allegations. Criminal proceedings can seriously affect liberty, reputation and family life, making fair investigation and due process essential. However, the possibility of misuse does not, by itself, justify denying legal protection to an entire category of persons. The better response may lie in safeguards such as impartial investigation, careful assessment of evidence and protection against malicious prosecution. Protecting the complainant's dignity and protecting the accused's right to a fair trial are not mutually exclusive objectives. The law must also distinguish genuine sexual violence from ordinary matrimonial disagreements. Criminal law should address coercion and non-consensual sexual conduct without transforming every marital conflict into a criminal proceeding.

Beyond the Marital Rape Exception: The Scope of Criminal Liability

The BNS itself demonstrates that marital status does not provide absolute protection in every circumstance. Section 67 specifically criminalises sexual intercourse by a husband with his wife during separation when it occurs without her consent. This distinction raises an important question. If the law recognises the significance of consent when spouses are living separately, why should the legal significance of consent disappear merely because the spouses continue to live together? The issue becomes even more complex where non-consensual sexual conduct causes serious bodily injury or death. The question is then not limited to whether such conduct constitutes rape; it also concerns whether marital status can shield independently punishable criminal conduct.

The Constitutional Question of Marital Autonomy

The judiciary must nevertheless remain conscious of the separation of powers. Defining criminal offences is primarily a legislative function, while constitutional courts determine whether legislation is consistent with fundamental rights. The marital rape debate therefore requires a careful balance between individual autonomy, equality, dignity, legislative policy and institutional limits. The question is not simply whether criminalisation is morally desirable, but whether the existing distinction created by the law can withstand constitutional scrutiny.

Conclusion

The marital rape exception reflects a continuing tension between traditional notions of marital entitlement and the constitutional recognition of individual autonomy. Protecting marriage as an institution does not require treating it as a source of permanent sexual consent. Marriage creates a legal relationship between two individuals; it does not erase their separate identities, dignity or bodily autonomy. Consent, by its very nature, must remain voluntary and capable of being withheld or withdrawn. The constitutional question is therefore not whether to protect marriage or individual rights, but whether both can coexist without making one spouse's autonomy conditional upon marital status. Ultimately, marriage may create companionship, commitment and mutual responsibility, but it cannot create permanent sexual entitlement. A person's refusal cannot become legally irrelevant merely because the relationship is marital. Protecting the institution of marriage must not come at the cost of protecting the individual within it.

(Write to the authors at vashishthchowmal16@gmail.com & surbhiagrawal2003@gmail.com.)