If She Says No, Marriage Cannot Say Yes: Rethinking Marital Rape Through the Lens of Consent and Constitutional Morality

ABSTRACT

The recognition of marital rape continues to remain a very controversial aspect of Indian criminal law. While the rape itself is widely recognized as an infringement of personal liberty and autonomy, the Indian criminal law has continued to give husbands a pass in cases of non-consensual sexual acts by a husband against his wife, based on the outdated belief that marriage is equivalent to an eternal consent to sex. This paper contends that such a belief is contrary to the principles of equality, dignity, liberty, and bodily autonomy as guaranteed by the Constitution of India. The concept of consent cannot be eternal and absolute as it is a continuous act of free will.

Through a rigorous study of constitutional principles, judicial precedents, feminist theories of jurisprudence, comparative law and international human rights norms, this paper argues that forced sexual intercourse within marriage satisfies all the constitutive aspects of rape and that it should not be exempt from criminal responsibility on the ground that it is committed by the husband. This paper further examines the difficulties of prosecuting cases of marital rape, critically evaluates arguments made in opposition to such criminalization and makes recommendations for legislative and institutional reforms. The paper finally argues that making marital rape a crime does not weaken the institution of marriage but rather reinforces the institution by recognizing that marriages are those characterized by respect, dignity and consent. In a constitutional democracy, marriage cannot strip individuals of their fundamental rights, and if the woman chooses not to consent, then her choice needs to be respected.