By – Vridhi Parakh
Abstract
Indian criminal law does not treat a husband’s forced intercourse with his adult wife as rape. The article will examine how the adjudication of rape trials shapes an “ideal” victim through gendered norms of sexuality, which in turn shape judicial interpretations of consent. The marital rape exception goes further: it constrains women’s agency and redefines their legal identity within rigid categories of victimhood before any trial begins, by treating marriage as her standing irrefutable consent. How do the historical foundations of marriage and the presumption of conjugal consent shape the construction of the “credible” rape victim in India, and why does this idealisation of wifehood complicate the legal recognition of women’s sexual autonomy?.
Introduction
The term rape originates in the Latin term ’rapere‘, which translates as “to snatch, to grab, to carry off”. Apart from being an utterly dehumanising act, rape violates Article 21 of the Indian Constitution as an unlawful intrusion into the privacy and sanctity of a woman’s bodily dignity, honour and self-esteem. Women outside marriage are often imagined as vulnerable and exposed to men who are strangers, while the husband is cast as a guardian whose presence deters these predators. This promise of protection fails on its own terms when the violence comes from the husband. Of the ever-married women who reported sexual violence in the National Family Health Survey, 82 per cent named their current husband. Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita provides that ‘intercourse or sexual acts by a man with his own wife, provided she is above the age of eighteen, is not rape. This means the very same act of forced sexual intercourse will be charged as rape if it is committed against an identified stranger but will be treated legally as though it never occurred if the violation is of a wife’s body.
This article argues that the non-recognition of marital rape is not merely a gap in law, an oversight or a political failure. It is the most visible expression of a deeper juridical logic : the logic through which law constructs a category of woman whose injury is, by definition, not an injury. We call this logic pre-emptive victim abrogation. Unlike evidentiary disbelief, which happens at the credibility stage of a trial, or judicial bias, which happens at the reasoning stage, pre-emptive victim abrogation operates at the definitional stage. It dissolves the wife’s capacity to be a victim before any individual case begins, by building the husband’s right of sexual entitlement into her legal identity as wife.
The credible victim is a social figure, built from normative expectations about how a woman who has ‘really’ been raped looks, behaves, and speaks : she is sexually inexperienced, resists visibly and bears the injuries to prove it, reports immediately, was attacked by a stranger, and performs distress in a way that courts find authentic. The further a woman departs from this script – the more sexually experienced, the more acquainted with the accused, the more delayed her report – the less she is believed. Because the law presumes her consent in advance, the wife is structurally excluded from this narrative (re)construction. The ideal victim is a woman whose body was taken without consent and against her will; the ideal wife is a woman who, in law, has already given that consent permanently and irrevocably through the institution of marriage. The exception applies to every wife, however she behaves, so no virtue, resistance, or promptness can bring her within the law’s protection. The ideal victim and wife are therefore structurally incompatible: where one requires visible non-consent, resistance, and distance from the perpetrator, the other is defined by presumed consent, compliance, and intimacy. The law protects the ideal victim, but it produces the ideal wife – and the two cannot coexist in the same person. The article traces the presumption’s origins, tests it against judicial authority, and concludes that reforms aimed at credibility alone cannot reach the wife.
Indian Model for Consent
A. Marriage//Consent Structure: “I DO”
The marital rape exemption is sustained, in large part, by the public-private binary – criminal law must not interfere in private marital relations. The defence rests on a consent argument: the wife consented to the marriage;marriage implies consent to sexual access; therefore, the husband’s intercourse is presumed consensual. Historically, tradition has construed the ‘wife’ as chattel, an object or possession that can only be possessed by man. This idea stems from the Unities theory that advances the doctrine of coverture: A man could not rape an extension of himself. After marriage, husband and wife become one; that is in marriage, the wife forfeits her civil identity and is regarded as the property of her husband.
Common law carried Hale’s Coverture into Indian Criminal Codes. Despite recommendations for its removal in 2013, the Union of India retains its stance and opposes striking this exception. While certain judicial observations have privileged a husband’s purported sexual entitlement, this position has been contested within the judiciary. Suchita Srivastava v. Chandigarh Administration recognised a woman’s right to refuse participation in sexual activity as part of her personal liberty. Independent Thought v. Union of India read down Exception 2 for wives under eighteen, though adult wives were not before the Court. Nimeshbhai v. State of Gujarat held that a wife cannot invoke rape provisions against her husband, yet urged that the notion of implied consent in marriage be jettisoned and the legislature should intervene. Hrishikesh Sahoo v. State of Karnataka questioned the legitimacy of an absolute marital exemption and refused to quash a rape charge against a husband. The Supreme Court stayed that judgment and has since clubbed the challenge with other petitions. These competing positions expose the central tension: whether marriage can justify withholding the protection of criminal law from violations of a woman’s sexual autonomy.
B. The Instability of Consent: “You may now kiss the bride”
The conjugal consent presumption is ideologically dependent on a sham of marital consent that is fictitious for a large proportion of Indian marriages. Consent is imagined as a one-time act performed at the altar that closes off the possibility of future refusal, as the wife has signified agreement to sexual advances in advance. For a large number of women, the question of whether marriage itself was freely chosen is not straightforward. Arranged marriage- a prevalent form of union in India is a negotiation between families, and the woman’s agreement is often inferred from her compliance/silence. Consent is not freely given as both social coercion (pressure women feel to have sex, bear children and continue the lineage as a result of social and cultural expectations of marriage as the institution that legitimises intercourse for procreation) and interpersonal coercion (pressure women feel to have sex due to non-violent threats such as withholding money or child support) undermine autonomy. Open refusal to marry is possible, but it risks: social ostracism, economic insecurity, and damage to familial relationships. If the institution itself is shaped by constraint, the claim that it produces permanent and irrevocable consent cannot be defended as a reflection of actual will.
C. “No means No, but does Yes really mean Yes?”
The strongest objection is that marriage is a sacred union and criminalising marital rape “will create absolute anarchy in families”. Firstly, if marriage is sacrilegious, the presumed consent loses its enforceability, and what remains is the claim that the family’s interest outweighs the wife’s body. That is pre-emptive victim abrogation. Secondly, Section 85 of BNS and the Protection of Women from Domestic Violence Act 2005 demonstrates that the law can recognise a wife’s sexual injury elsewhere, since it treats sexual abuse by a husband as domestic violence. However, the Act offers civil remedies only. Non-consenual intercourse with a separated wife, carries a reduced punishment of two to seven years under Section 67, against a minimum of ten for rape. Punishment thus strengthens when refusal is away from the institution of marriage.
Conclusion
Criminalization is necessary, but it does not by itself resolve the problem. The exception applies regardless of the wife’s conduct, so improving how courts weigh credibility will not touch it. As long as consent continues to be treated as something that can be presumed, and credibility continues to depend on narrow narratives of victimhood, the underlying structure remains intact. At its core, this is a question of legal subjectivity: is the wife seen as an individual capable of refusal, or as a relational figure whose will is absorbed into the institution she enters? Until that question is answered differently, law will continue to produce a category of wife whose injury is unrecognisable. Recognising a wife’s sexual autonomy would make consent in every rape case a question of fact, not status, and would extend to wives.
Author’s Bio
Vridhi Parakh is a second-year student currently pursuing B.A LL.B (Hons) at O.P Jindal Global University. Her interest lies in exploring the various facets of criminal law, criminology and the forensic sciences.
Image Source : https://www.thehindu.com/news/national/criminalisation-of-marital-rape-supreme-court-seeks-centres-response/article65898207.ece