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
