The category error at the heart of marital rape law

“The rhetoric of consent, when absolutized and criminalised, becomes less a shield for dignity and more a legal instrument that dismantles marriage from within.”

This captures the central anxiety in the contemporary push to criminalise marital rape. Advocates of criminalisation, including Dr Shashi Tharoor’s, argument that consent is a fundamental human right that does not dissolve upon marriage, and that any legal exception permitting non-consensual sex within marriage converts the voluntary vow of “I do” into a compulsory “you must.” From this perspective, criminal law is presented as the only morally
coherent response to protect dignity and autonomy within marriage.

The emotional and ethical appeal of this argument is undeniable. Yet law, especially criminal law, cannot be shaped by moral intuition alone. It must be grounded in jurisprudence, proportionality, and social reality. The question India must confront is not whether sexual
violence is immoral—it undoubtedly is—but whether criminal law is the appropriate instrument to govern the most intimate, continuous, and emotionally complex human relationship known to society.

Criminal law is, by design, a blunt instrument. It presumes a clear aggressor and an identifiable victim, a discrete incident in time, evidentiary objectivity, and a Mens Rea that can be isolated and proven beyond reasonable doubt. It is a framework evolved to address public wrongs, violence between strangers, and acts that can be severed from context. Marriage, however, is not episodic. It is a continuous relationship marked by ongoing consent, negotiation, compromise, emotional interdependence, physical intimacy, and shared economic and social life. To insert a stranger-rape framework into this continuum is not moral clarity; it is a category error.

Western modernity—shaped significantly by Abrahamic theological and legal traditions—largely treats marriage as a revocable contract between autonomous individuals, secondary to personal desire and easily dissolvable when individual fulfilment declines. Indian civilisation, by contrast, has historically understood marriage as a samskara—a formative institution that is social, generational, and dharmic. It is the foundation of grihastha ashram, the axis around which family, lineage, and responsibility revolve. For millennia,
Indian society survived invasions, famines, colonial exploitation, and economic hardship not because individuals were atomised, but because the family remained resilient. To argue that this civilisational experience is irrelevant today is to misunderstand how societies endure.

A significant discomfort in Western sexual jurisprudence lies in its unease with procreation as a civilisational purpose. Indian thought never shared this embarrassment. Marriage was historically oriented towards continuity—biological, cultural, and ethical. Sex within
marriage was not merely an act of pleasure but a route to creation and responsibility. This does not render consent irrelevant. Rather, it situates consent within an ongoing moral relationship, not as a transactional licence to be renegotiated before every act. To criminalise marital intimacy by isolating moments, stripped of context such as shared life, shared duties, and shared consequences, is to tear sex out of its civilisational setting and reduce it to
episodic individualism.

The most consequential fault-line in this debate is philosophical: not every moral wrong must be a criminal wrong. Indian legal tradition has long recognised graduated remedies, social correction before state coercion, and proportionality between harm and punishment. The law already provides multiple remedies for marital breakdown and abuse—divorce, judicial separation, maintenance, protection under domestic violence statutes, and intervention by civil and family courts. To leap directly to criminalisation is not merely an expansion of protection; it reflects a deeper suspicion of marriage itself, presuming husbands as latent criminals and transforming the family into a permanently surveyed legal battlefield.

Empirical context: Intimacy, consent, and modern stressors

Any serious legal reform must be informed by social reality, not abstraction. Research on sexual engagement among married couples reveals notable patterns globally and in India. Worldwide, married couples typically engage in sexual intimacy about once a week—approximately 50–55 times annually—according to analyses published in Archives of Sexual Behavior (2017), a range broadly reaffirmed by data from 2023–2025. Yet the more consequential trend is decline. Over the past three to four decades, frequency has fallen, particularly in the United States, where the proportion of married adults reporting weekly sex dropped from about 70% to 60% between 2000 and 2018 (National Survey of Family
Growth). Contributing factors are not legal exemptions but modern stressors: long work hours, exhaustion, mental-health pressures, and digital distraction.

Indian data, though more limited, points in a similar direction. A 2023 Tweak India poll (n=2,113) reported that roughly 33% of married respondents had sex weekly, with the remainder reporting less frequent intimacy; recent reports suggest only about 20–26% exceed weekly encounters. Importantly, nationally representative data also frames the consent question with nuance. NFHS5 (2019–21) records that about 6% of women reported experiencing spousal sexual violence—an unacceptable reality that demands redress—while also indicating that the overwhelming majority of marital sexual encounters are consensual. Globally, WHO estimates place forced marital sex in the range of 6–10%, underscoring that
coercion, while serious, affects a minority rather than defining marital intimacy as a whole.

These trends matter for lawmaking. They show that intimacy is being eroded primarily by socioeconomic pressures, not by the absence of criminalisation. The appropriate policy response therefore prioritises work–life balance, mentalhealth support, relationship counselling, and consent education—interventions that strengthen marriages and protect dignity—rather than a reflexive expansion of criminal law into intimate life.

Criminalisation also raises grave concerns about due process. Criminal law depends on proof beyond reasonable doubt. In allegations of marital rape, there are typically no witnesses, no clear temporal boundaries, and no objective markers of consent within a continuous relationship. This creates two dangers: the weaponisation of criminal law during marital conflict and irreversible damage to reputation and liberty based on allegations that may be impossible to fairly adjudicate. A civilisationally mature society must ask whether it is wise to place the criminal justice system inside the bedroom. A law that cannot be fairly enforced ceases to be justice and becomes an instrument of power.

Underlying this debate is a deeper ideological divergence. Western liberalism elevates autonomy as the highest good. Indian philosophy tempers autonomy with dharma (duty), rina (obligation), and maryada (moral restraint). Marriage is precisely the space where individuals voluntarily limit absolute autonomy in exchange for stability, care, and continuity. If marriage is redefined as a zone where every disagreement risks criminal prosecution and intimacy
becomes legally adversarial, then marriage ceases to exist as an institution and collapses into cohabitation under threat.

There is also an unresolved irony in labelling the marital rape exception a colonial relic while importing post-1960s Western sexual jurisprudence wholesale. True decolonisation does not
mean replacing British law with American ideology. It means crafting legal responses rooted in Indian social reality—responses that protect women without dismantling the family as an institution.

Reform is necessary; destruction is not. A civilisational grounded response would strengthen civil remedies, ensure speedy family courts, mandate counselling and mediation, and impose severe punishment for proven physical violence. Criminal law should remain the last resort, not the first impulse. To criminalise marital intimacy wholesale is to assume that the institution itself is irredeemably broken—an assumption contradicted by Indian history.

Indian marriage is not perfect. No human institution is. But it has endured because it adapts without collapsing. A law that treats intimacy as a crime scene and spouses as suspects does not liberate; it atomises. The question is not whether women deserve dignity—they always have. The real question is whether justice can be delivered without dismantling the civilisational architecture that sustained Indian society for millennia. That is the debate India
must have—calmly, jurisprudentially, and without importing borrowed anxieties.

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