The debate over criminalising marital rape in India has once again taken centre stage after Congress MP Shashi Tharoor introduced a private member's bill in the Lok Sabha seeking to recognise non-consensual sex within marriage as a criminal offence. His argument that India must move from the principle of “no means no” to “only yes means yes” reflects a larger constitutional aspiration to uphold bodily autonomy, dignity, and equality for all citizens, irrespective of their marital status. Yet, despite decades of activism and repeated judicial challenges, the exemption for marital rape remains intact under Section 63 of the Bharatiya Nyaya Sanhita, 2023, which excludes sexual acts by a husband with his wife over the age of 18 from being punishable rape.
This legal exception is a relic of colonial-era thinking, rooted in patriarchal assumptions that marriage creates an irrevocable right of sexual access. Historically, wives were considered the property of their husbands their consent permanently presumed and their autonomy legally irrelevant. While India's constitutional framework has long rejected notions of subordination based on gender, the continued existence of this exception indicates a significant disconnect between the country's constitutional ideals and its criminal law.
The Argument of Misuse: A Flawed Justification
A common reason offered for opposing the criminalisation of marital rape is the potential for misuse of the law. Critics argue that disgruntled spouses might use such provisions to harass their partners, especially in the context of matrimonial disputes. However, the possibility of misuse is not unique to marital rape laws, it is a feature of virtually every legal provision in India. Laws dealing with dowry harassment, domestic violence, forgery, corruption, or even murder are all susceptible to false complaints. Yet the legal system does not discard them simply because misuse is possible.
To say that a law is unnecessary because it might be misused is to misunderstand the purpose of criminal law. The possibility of misuse should lead to strong safeguards, stringent evidentiary standards, and due process, not a blanket refusal to recognise an act of violence. Moreover, the fear of misuse often reflects deep-seated patriarchal anxieties that criminalising marital rape would destabilise traditional family structures and undermine male authority within marriage. But these concerns cannot override women's fundamental rights to bodily integrity and dignity guaranteed under Articles 14, 15, and 21 of the Constitution.
Global Context and India's Legal Isolation
According to the United Nations Population Fund's 2021 State of World Population report, around 40 countries worldwide still do not criminalise marital rape, and even among those that do, penalties frequently differ from rape outside marriage. India remains in the minority of nations that explicitly exempt sexual violence within marriage from being prosecutable. This stands in stark contrast to its global image as the world's largest democracy and a nation that aspires to uphold gender equality.
Despite several landmark moments, most notably the nationwide outrage after the 2012 Nirbhaya case, India continues to grapple with persistently high levels of gender-based violence. The decision of the government to overhaul the country's 164-year-old penal code in 2023 without addressing this glaring gap highlights the political reluctance to confront social conservatism and entrenched patriarchal norms.
The Judicial Dilemma: Denial of Sex as Cruelty vs. Non-consensual Sex as Crime
One of the key complexities in the Indian legal landscape is that matrimonial jurisprudence often treats denial of sex by a spouse as mental cruelty, forming grounds for divorce. Courts have repeatedly ruled that refusal to engage in sexual relations may amount to “cruelty,” thereby justifying the dissolution of a marriage. This concept flows from the traditional belief that sex is a marital duty rather than an expression of mutual consent. This creates a paradox: if refusal of sex is cruelty, how does one reconcile this with the notion that forcing sex should be a crime?
The contradiction exposes a deeper issue: the judiciary's inconsistent understanding of consent within marriage. As long as marital relations are framed as an obligation rather than a voluntary and intimate partnership, the criminalisation of marital rape risks being reduced to symbolic reform, lacking substantive impact. Without a shift in judicial language and reasoning, the tension between these two principles will continue to grow.
Balancing the Rights
A meaningful reform must involve more than deleting the marital-rape exception, it requires a comprehensive re-evaluation of marital norms, judicial reasoning, and societal attitudes toward consent. Recognising that marriage cannot be treated as perpetual consent is essential, alongside revising family law so that denial of sex is not equated with cruelty unless part of broader abuse, thereby ensuring equal sexual autonomy for both partners. Safeguards against misuse, such as strong evidentiary standards and careful judicial scrutiny, must be incorporated without diluting the law's purpose, while police, medical professionals, and the judiciary require training to handle such cases with sensitivity and clarity. Public awareness efforts should emphasise that criminalisation aims not to undermine marriage but to ensure dignity and safety within it. Ultimately, the debate reflects the values India chooses to uphold: a constitutional democracy cannot operate on assumptions that treat women's bodies as marital commodities, and concerns about misuse cannot justify denying essential protections.
The author is an advocate practicing in Delhi, and the views expressed are personal.