Written by Agrima Shrivastava
First Year Student
Narsee Monjee Institute of Management

Table of Contents

• Introduction
• The Ghosts of the Colonial Past
• Consent as the Core of Dignity
• The Fear No One Talks About: Misuse
• Between Rights and Realities
• What the Courts Have Said
• The Way Forward
• Conclusion

Introduction

Every era leaves behind a moral legacy. Some parts of it light the path forward; others become shadows we must learn to outgrow. For India, laws governing sexuality have always sat at this uneasy crossroad between morality and freedom, between control and consent. When the Supreme Court struck down Section 377 in Navtej Singh Johar v. Union of India (2018), it wasn’t just reading down a penal provision. It was rewriting history affirming that love cannot be policed and dignity cannot be criminalized. It was India finally saying, “Your choices are your own.”

Yet, years later, another debate continues to divide our moral compass the criminalization of marital rape. How can a nation that celebrates consent outside marriage still deny it within marriage? And still, how can we ignore the haunting reality that even noble laws can be misused sometimes tearing apart families and reputations before justice has a chance to breathe? This is India’s dilemma: the search for a law that protects without persecuting, that believes without being blind.

The Ghosts of the Colonial Past

Section 375 of the Indian Penal Code, written in 1860, carries a quiet violence. It says a man cannot be guilty of raping his wife unless she is under fifteen. This was not law; it was possession disguised as protection. Colonial lawmakers believed that once married, a woman’s consent was permanently given a concept rooted in 19thcentury English thought that treated wives as extensions of their husbands. Ironically, England itself abolished this marital rape exemption in R v. R (1991), recognizing that consent cannot be “given once and forever.” But in India, this colonial ghost lingers.

Consent as the Core of Dignity

The Constitution of India, through Articles 14, 15, and 21, gives every individual the right to equality, liberty, and dignity. These are not lofty ideals; they are promises. In Navtej Singh Johar, the Supreme Court reminded us that constitutional morality not social morality must guide the law. If consent matters for unmarried partners, how can it vanish after marriage? If a woman’s “no” outside marriage is sacred, why does it become irrelevant inside it? Criminalizing marital rape, therefore, isn’t about dismantling marriage it’s about redefining it as a partnership of equals, where intimacy is chosen, not demanded.

The Fear No One Talks About: Misuse

But every conversation about marital rape law meets a pause a nervous silence filled with a different kind of fear. What if the law is misused? We’ve seen this story before. Section 498A, meant to protect women from cruelty, has sometimes been used maliciously in divorce or alimony disputes. Allegations of sexual assault within marriage, once made, can destroy reputations, careers, and families long before
any trial.

And that’s the painful truth the line between justice and vengeance is dangerously thin when emotion enters the courtroom. It’s not wrong to fear misuse. It’s wrong to let that fear silence reform. What India needs is not inaction, but balance a law strong enough to protect, and wise enough to prevent
exploitation.

Between Rights and Realities

Imagine a woman trapped in an abusive marriage every night, her “no” dismissed, her silence mistaken for consent. For her, the absence of a marital rape law is a daily betrayal by the Constitution itself. Now imagine a man falsely accused of rape during a bitter divorce battle his name, career, and family torn apart before truth surfaces. Justice must see both. Laws should protect dignity, not destroy it. Perhaps the answer lies in procedural safeguards independent investigation before arrest, judicial oversight, and evidentiary thresholds for allegations made amid marital breakdowns. Perhaps the law needs genderneutral language, recognizing that consent violations can affect any partner, regardless of gender. True reform means building a system that trusts women without condemning men that listens
to pain without becoming blind to truth.

What the Courts Have Said

In RIT Foundation v. Union of India (2022), the Delhi High Court delivered a split verdict one judge urging recognition of marital rape, another cautioning restraint. The case revealed India’s divide: the heart demanding reform, the mind demanding caution.
The Justice Verma Committee (2013) too, after the Nirbhaya case, called for deleting the marital exception yet Parliament hesitated. Fear of “social disruption” outweighed the promise of equality. But can a society truly stand strong on a foundation of silence?

The Way Forward

The conversation on marital rape is not a war between genders it’s a search for justice between human beings. The law must evolve with empathy, not extremism. Criminalization must come with guardrails judicial scrutiny before arrest, counseling and mediation in ambiguous cases, and evidentiary sensitivity for crimes that occur in private. Above all, we need to educate- to teach that marriage is not ownership, but partnership; that consent is not a burden, but a bond.

Conclusion

India’s story from Section 377 to marital rape is a story of awakening a nation slowly learning that morality cannot dictate liberty.
Decriminalizing homosexuality was about the right to love. Recognizing marital rape will be about the right to refuse. Both are expressions of the same truth: autonomy is the essence of being human.
But autonomy must coexist with accountability. A just law is not one that punishes the most, but one that protects the best and prevents the worst. As India stands at this crossroad once again, it must choose courage over comfort, balance over bias. Because in the end, a society that fears misuse more than it fears injustice is a society not yet free.

References

• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
• RIT Foundation v. Union of India, 2022 SCC OnLine Del 1396.
• Rajesh Sharma v. State of U.P., (2017) 8 SCC 746.
• R v. R [1991] 1 All ER 747.
• Justice J.S. Verma Committee Report, 2013.
• Indian Penal Code, 1860 Sections 375 & 498A.
• Constitution of India Articles 14, 15, 21.