Redefining Consent – Why India Must CriminalizeMarital Rape

Abstract

Marital rape remains an unrecognized area in Indian criminal law, undermining the autonomy of married women and reflecting deeply entrenched patriarchy in the legislature itself. Despite all the protests and demands made for reforms, the issue remains largely ignored. The failure of the lawmakers to criminalize marital rape violates fundamental rights of married women promised under Article 14 (right to equality) and Article 21 (right to life) of the Constitution of India. Every married woman deserves to live in a safe and healthy environment, yet many face sexual violence by their own husbands without any legal safeguards. The lack of legal protection strips women of basic human rights and makes them vulnerable to abuse. The paper provides a critical analysis of the historical position of marital rape in Indian criminal law. It highlights how the continuing ignorance towards such a critical matter reduces women to mere chattel to men, which somewhere reinforces gender inequality. Furthermore, it exposes the laxity and reluctance of lawmakers in addressing this pressing issue that requires necessary legal reforms. This paper puts forward that implied consent cannot be considered as rightful consent, as marriage cannot be used as a justification for any sort of forceful sexual activity, nor can it breach a woman’s autonomy over her own body. With countries, like the United States and states like New York, recognizing and criminalizing marital rape, it is now time for India to move a step ahead to protect its women. Urgent law reforms are required to protect women from the grasp of such heinous acts, and women must be encouraged to speak and come out of their sufferings without the fear of societal or legal repercussions.