MARRIAGE IS NOT CONSENT: RETHINKING THE MARITAL RAPE EXCEPTION IN INDIA

The question of criminalizing marital rape in India has re-emerged with renewed urgency in light of recent legislative efforts, including the introduction of a private member's bill by Shashi Tharoor seeking to remove the marital rape exception under Section 375 of the Indian Penal Code. This paper examines marital rape as a deeply contested legal and socio-cultural issue situated at the intersection of constitutional rights, criminal law, gender justice, and entrenched social norms. Although the Constitution of India guarantees equality, dignity, and personal liberty under Articles 14, 15, and 21, Exception 2 to Section 375 continues to immunise non-consensual sexual intercourse by a husband with his adult wife from prosecution. The article critically analyses the constitutional validity of this exception through evolving judicial reasoning in cases such as Independent Thought v. Union of India (2017) and Joseph Shine v. Union of India (2018), which foreground sexual autonomy, privacy, and equality within marriage. Further, the paper evaluates the implications of the proposed reform, assessing arguments for criminalisation, human rights compliance, bodily autonomy, and gender equality, against concerns regarding evidentiary challenges, misuse, and potential impact on the institution of marriage. Drawing upon comparative international law, recommendations of the Justice Verma Committee, and India's obligations under CEDAW, the study advocates a calibrated reform model combining legal change with institutional safeguards, social awareness, and survivor-centric support systems. Criminalising marital rape, it argues, would not undermine marriage but rather transform it into a partnership grounded in consent, dignity, and mutual respect consistent with constitutional morality.