Marriage, Consent, and Constitutional Citizenship: Rethinking the Marital Rape Exception in India

This article examines the continuing validity of the marital rape exception through constitutional, social, and feminist perspectives. It examines how Indian law treats consent differently within marriage and outside it, despite recognising the autonomy and agency of women in other aspects of life. The article begins by understanding the colonial patriarchal origins of the marital rape exception and goes on to argue how it is inconsistent with modern constitutional values of equality and dignity under Articles 14 and 21 of the Constitution. The contradiction between the legal recognition of domestic violence and the refusal to criminalise non-consensual intercourse within marriage is studied intensively. By understanding social realities such as economic dependence, structural coercion, and gendered expectations, the article opines that silence within marriage cannot always be interpreted as consent. Through comparative legal developments and constitutional analysis, the article argues that recognising a married woman’s sexual autonomy would strengthen rather than weaken the institution of marriage.