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Author: Shloka Bansal
Behind closed doors, where silence screams and consent is a forgotten word, the law chooses to look away. In India, democracy stops at the bedroom door.”
INTRODUCTION
Rape constitutes one of the most reprehensible and dehumanizing offences, capable of inflicting profound psychological, emotional, and physical trauma upon a woman. It violates her bodily autonomy, dignity, and fundamental rights. In the face of such a grievous assault, the only beacon of hope lies in the legal system, a mechanism through which she can assert her rights, seek redress, and ensure that the perpetrators are brought to justice under the rule of law.
But what recourse remains when even the law ceases to be a refuge for a woman, when she endures the anguish of such a violation in silence, not because she is afraid, ashamed, or constrained by societal stigma, but because she knows that her voice will fall on deaf ears? Because what, for her, was a harrowing and traumatic ordeal is dismissed by others as her “marital duty”, a responsibility she is expected to bear, and, more disturbingly, a so-called right claimed by the man she is married to.
She says ‘no,’ but the law still hears a ‘yes’ because she is his wife. Marital rape is a grievous and deeply disturbing offence, one that society acknowledges in whispers but refuses to formally recognize. The irony is stark: when a man forces himself upon a woman before marriage, it is unequivocally condemned as a criminal act. Yet, when the same act is committed within the bounds of marriage, it is often disguised as a “conjugal right.” The very same conduct, stripped of consent, transforms from a crime to a supposed entitlement, not because the act changes, but because the woman is now a wife, not merely an individual with autonomy.
In India, marriage is traditionally regarded as a sacred institution, a union built on trust, companionship, and mutual respect. Yet, what a woman often cannot fathom is that this very sanctified bond can be weaponized as a shield for sexual violence. The sanctity of marriage is, at times, distorted to legitimize acts that would otherwise constitute a grave violation of bodily autonomy and human dignity.
INDIA’S CONSTITUTIONAL CONUNDRUM
Article 14 of the Indian Constitution unequivocally guarantees that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Yet, a glaring constitutional paradox persists, why is a married woman treated differently from an unmarried woman when both are subjected to the same heinous offence of rape? Does a woman, by virtue of marriage, forfeit her right to equality and bodily autonomy? Denying married women, the same legal protection against sexual violence as their unmarried counterparts is not only discriminatory but also a direct affront to the spirit and letter of constitutional equality.
Article 21 of the Indian Constitution guarantees that “no person shall be deprived of life or personal liberty except according to procedure established by law.” This fundamental right encompasses not just mere existence, but the right to live with dignity, autonomy, and self-determination. Then why is a married woman often denied the freedom to make decisions about her own body and her own life? Why is it that a woman can claim her right to life and liberty from the world, but not from her own husband? Marriage does not render a woman the personal property of her spouse. A woman’s body is not public property, and certainly not marital property. And yet, Indian law, by refusing to criminalize non-consensual sex within marriage, implicitly treats it as such. This legal oversight stands in stark contradiction to the very essence of personal liberty enshrined in Article 21.
THE LEGAL FICTION: CONSENT WITHDRAWN BY MARRIAGE
Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS) defines rape as a sexual act committed by a man against the will or without the consent of a woman. This definition rightly centres on the principle of consent, a cornerstone of personal autonomy and bodily integrity.
However, Exception 2 to Section 63 carves out a troubling exclusion: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
The critical question that arises is this: Does Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita grant a husband the legal privilege to force sexual intercourse upon his wife, even without her consent? Or more disturbingly, does it compel a wife to surrender her bodily autonomy upon marriage, stripping her of the right to say “no”?
This exception effectively assumes that consent is automatically and perpetually implied in marriage, as though the solemnization of marriage results in an irrevocable, one-time grant of sexual consent. Such an assumption is not only constitutionally flawed but also morally indefensible. It violates a woman’s fundamental right to personal liberty, dignity, and bodily integrity as protected under Article 21, and her right to equality under Article 14.
What kind of democracy protects a husband’s lust over a wife’s consent?
In Independent Thought vs. Union of India, the Supreme Court examined the constitutionality of Exception 2 to Section 375 IPC, which previously allowed husbands to have non-consensual sex with their wives as long as the wife was above 15 years of age. This conflicted with several child protection laws such as the POCSO Act (which defines anyone under 18 as a child), the Child Marriage Act, and the Juvenile Justice Act, all of which recognize 18 as the legal age of majority.
The Court held that the marital rape exception, in so far as it applied to girls aged 15 to 18, was arbitrary, unconstitutional, and violative of Articles 14 and 21. It harmonized the provision with child protection laws by reading down the exception, raising the minimum age to 18. While the judgment was a progressive step, it left adult married women outside the scope of rape protection, keeping the broader issue of marital rape unresolved.
COMMON DEFENCES & THEIR COLLAPSE
Whenever the issue of marital rape is raised, one of the most common arguments in opposition is the fear of misuse, that women might falsely accuse their husbands and exploit the law. It is true that no legal system is immune to misuse, and yes, there have been instances where laws have been misapplied. But that cannot be a reason to deny justice altogether. Which law is entirely immune to misuse? From dowry laws to anti-corruption statutes, every legislation carries the potential for both justice and abuse, yet we do not discard them. The answer to possible misuse is not legislative inaction, but robust judicial scrutiny. It is the responsibility of the judiciary to ensure that innocent individuals are protected while genuine victims receive justice. Our legal system is built on the principle that “let a hundred guilty go free, but not one innocent be punished”, and that balance is precisely what judicial safeguards are meant to uphold. The fear of misuse cannot justify the continued denial of a woman’s right to bodily autonomy within marriage.
THE ROAD AHEAD: CONSENT IN ALL SPACES
Exception 2 must be repealed because justice cannot and should not be delivered on the basis of age or marital status. It is a fundamental truth that justice belongs to all. What we need is a survivor-centric legal reform, one that prioritizes the needs, dignity, safety, and autonomy of survivors of sexual violence, irrespective of whether they are married or unmarried, and regardless of age.
Our legal response must move beyond mere punishment and focus on the mental, physical, and social well-being of survivors. The objective should be to create a society where no woman feels compelled to remain silent about such violations, not because the law fails her, but because society finally begins to stand with her.
To achieve this, we must first challenge and change the deep-rooted patriarchal mindset that views a wife as the husband’s property. A woman should feel safe and respected within her own marriage and her own home. Because the truth is: A marriage without consent is not sacred, it is institutionalized violence.
CONCLUSION: DEMOCRACY BEGINS AT HOME
In the world’s largest democracy, a woman may be subjected to non-consensual sexual intercourse within her own home, night after night, and yet, the law fails to recognize it as a crime. Our Constitution, often hailed as one of the most comprehensive in the world, enshrines fundamental rights that safeguard the dignity, equality, and freedom of every individual, including women. However, when these constitutional ideals are tested against archaic legal provisions, they appear diluted in effect. This disconnect does not diminish the value of the Constitution itself, but rather highlights the urgent need to harmonize existing laws with its progressive and inclusive spirit.
The Constitution is the grundnorm, the foundational legal norm from which all laws derive their validity. Every statute, provision, and legal exception must be in harmony with the Constitution. No law can exist in contradiction to the fundamental rights enshrined under Part III of the Constitution, as these rights are supreme and prevail over any conflicting legislative provision.
However, when laws like Exception 2 to Section 63 of the BNS continue to exist that deny married women protection against sexual violence, it creates a dangerous dissonance. It sends a message that even the most fundamental rights, such as the right to equality and personal liberty, can be selectively applied. This not only undermines the authority of the Constitution, but also shakes the public’s faith in the very rights that empower them. For a nation that calls itself a democracy, legal inconsistency at the cost of individual dignity and autonomy is deeply troubling and must be addressed through urgent constitutional alignment.
When the one place where a person is meant to feel the safest, their own home, becomes the most unsafe, it is a clear signal that the law must awaken and evolve. If a woman cannot feel protected within the very institution that promises companionship and care, then our legal system must confront that reality, not ignore it. Justice loses its meaning if it stops at the doorstep of a woman’s home. In such circumstances, legal reform is not a choice, it becomes a constitutional and moral imperative. After all democracy begins at home and so must justice.
References
Shukla, V.N., Constitution of India, 201, (M.P.Singh Ed., Lucknow: Eastern Book Company, 13th Ed., 2017)
PSA Pillai, Criminal Law, 832 (KI Vibhuti Ed., LexisNexis, 14th ed., 2019)
Independent Thought vs UOI, (2017) 10 SCC 800: AIR 2017 SC 4904
