Is Marital Rape an Intersectional Issue?: Understanding the Crucial Role of Consent

The author of the blog is Anureet Kaur, a second-year BA LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab, with an interest in International Law. Email ID: anureetkaur23266@rgnul.ac.in.

Introduction

Marital Rape is one of the most contentious issues in the current Indian legal framework. On February 10, 2025, a recent blow came from the Chhattisgarh High Court in its recent judgement of  Gorakhnth Sharma v. State of Chhattisgarh where Justice Narendra Kumar Vyas overturned the conviction of a 40-year-old man for having unnatural sex and intercourse with his wife without her consent. The single-judge bench of Justice Narendra Kumar observed: 

“Thus, it is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with her wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance, therefore, this Court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out.”

The judgement suffers backlash on another ground as well. It fails to recognise the landmark judgement of the Hon’ble Supreme Court in the case of Independent Thought v. Union of India & Anr. (2017) where Exception 2 to Section 375 of IPC was struck down in so far as it immunised a husband from prosecution for sexual intercourse or sexual acts with his own wife whose age was below 18 years.

The Supreme Court observed that:

“The provision is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution, apart from being inconsistent with the provisions of POCSO, which must prevail.” 

The ruling increased the age threshold from 15 years to 18 years by observing that:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.”

At present, the pleas challenging the exception to Section 375 of IPC and criminalising marital rape are pending before the Supreme Court of India for hearing. The stance of the Indian government regarding the criminalisation of marital rape has remained the same. The government has opposed petitions that seek criminalisation of marital rape, by labelling them as “excessively harsh”.

Marital rape affects countless Indian women. Thus, it becomes imperative to look at the question: Whether Marital Rape be considered an intersectional issue or not? While one section of society is of the opinion that it should be considered an intersectional issue, the other part fails to agree. After researching this issue, I believe that marital rape is  important, though overlooked,  intersectional factor contributing to the marginalisation and subjugation of the married women in the country. 

The Intersectionality of Marital Rape

Marital rape is an intersectional factor as its consequences and impact on women vary across caste, gender, nationality, religion, and various other factors. Marital Rape denies women their inherent right to bodily autonomy, where lower-caste, economically marginalised, less educated women are at more risk to suffer from the grave issue of marital rape. 

Almost every religion has normalised the patriarchal structure and the control of men over women. If we further look at the cases of disabled women, they are more vulnerable to facing sexual exploitation at the hands of their husbands due to physical constraints. In the Indian framework, the fight for the human rights of women will remain incomplete, without criminalisation of marital rape and adopting an intersectional approach. 

A Knot, Not a Noose: Why Marriage Doesn’t Erase Consent

Marital rape is forced sexual intercourse in marriage without the consent of the woman and has serious physical as well as emotional consequences. It takes on a complex nature through the social and legal fabric that makes up so many societies. There are very few countries, mostly Western, that have recognised marital rape as an offence and a violation of the legal rights of women. Australia. Denmark, Malaysia, Sweden, Canada, the United States and New Zealand have criminalised marital rape. In India, marital rape has not yet been criminalised. In 2005, India classified marital rape as domestic violence under the Protection of Women from Domestic Violence Act, 2005. Thus, it is quasi-civil law, which means a woman can go to court to seek a Protection Order and compensation from her husband against any sexual abuse, and if the husband violates court orders, a criminal case will be registered against him.

Let’s try seeking the answer to the question: “Does Marriage mean irrevocable implied consent?.” Before delving into the same, I would like to mention the legal principle validating marital rape for centuries in many countries. Justice Sir Mathew Hale, former Chief Justice in the English Court, observed and ruled that: 

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife had given up herself in this kind unto her husband, which she cannot retract.”

Thus, according to this reasoning, her willingness or consent is considered irrelevant. It assumes that a woman has given implied consent to her husband in marriage. 

For centuries, this doctrine had prevailed over almost the entire world. It was only in 1922, the Soviet Union became the first country and recognised the need to punish marital rape. However, even 103 years later, this archaic doctrine continues to dangle over the necks of Indian women. 

Marriage implies that you have an emotional and physical or sexual companionship, but does that mean consent is inherent? In India, it is assumed that the minute the woman gets married, she consents to sex for all time immemorial. However, this goes against the very basic principle of enthusiastic consent. Consent has to be freely given, reversible, informed, enthusiastic and specific. According to data, in India, one in every 25 women was reportedly subjected to sexual violence by her husband, and these are just the reported cases. 

In 2012, the Justice Verma Committee recommended that the Exception to Section 375 of the IPC be removed. Furthermore, Justice M. Nagaprasanna in the case of Hrishikesh Sahoo pointed out that:  “no exception under law can be so absolute that it becomes a license for the commission of a crime against society.”

The then Congress government opposed the same, citing concerns about the sanctity of marriage. Over the last ten years, the NDA government has also maintained the same stance. Thus, the two parties are clearly divided by party lines; however, united in turning a blind eye to the sensitivity of women’s bodily autonomy.

The government points out that, in India, we are suffering from illiteracy, and poverty and are divided by religious beliefs, thus, it is very difficult to recognise marital rape as an offence. However, the question is: Don’t these factors themselves perpetuate the violation and exploitation of women's rights? By not criminalising marital rape, we are not just making them suffer from the socio-legal factors but also from the sexual violence at the hands of their own husbands. 

Moreover, I would like to point out that: Has poverty prevented the government from demonetising currency? Or did religious beliefs come in the way of announcing overnight lockdowns during COVID-19? The answer is “NO” then why married women but not Indian men have to worry about the sanctity of marriage when it comes to sexual consent, despite this entrenched resistance?

A family health survey has revealed that about 30% of Indian women have experienced some form of spousal violence, and 6% of women have experienced sexual violence from their husbands. That is a million women whose rights are curtailed by our country’s institutions. Moreover, these are just the reported cases. The gravity of the issue is much more serious than our imagination. 

Where India is clinging to its colonial-era laws, much of the world has already moved further. The United Kingdom has already criminalised marital rape in the year 1991; Nepal and Bhutan have already beaten us in 2004; and even Pakistan, our neighbouring country, has made certain progressive steps by criminalising certain forms of sexual violence in marital institutions through an amendment to Section 375 of the Pakistan Penal Code (PPC) in 2021 though it needs to be noted that not every act of non-consensual sexual intercourse is criminalised in Pakistan.

The Counterargument: The #MarriageStrike Debate

In 2022, a curious hashtag “MarriageStrike” and a tweet by Ashraf Ansari (an active men's rights activist) were trending on Twitter (present-day ‘X’).

“Having sex with your wife is a crime but your wife having sex with someone else is not a crime.”

The quote itself was flawed:

1. Firstly, having non-consensual sex with your wife is not yet a crime in India. Let's suppose, India sees the light and takes the positive step to recognise marital rape as a crime. Here also, consensual sex with a wife will not be an offence; rather, indulging in non-consensual sex without her willingness will be considered against the law.

2. The second contention is also misleading as adultery has been decriminalised in India, and both husband/wife having sex with someone else is not an offence; rather, it is a ground for divorce under the current Indian legal framework.

While researching this topic, I came across a statement by The Print’s journalist, where she highlighted that “In India, women are safer outside a marriage than within one.” The journalist pointed out that “NDA is neither the first nor will it be the last government to fail Indian women.” This statement can further be proven if we look at our societal structure. 

The Central government’s stance that marital rape should not be criminalised is disappointing. In an affidavit to the Supreme Court, which is reviewing petitions challenging the constitutionality of marital rape, the Union Ministry of Home Affairs asserted that labelling marital rape a criminal offence was “excessively harsh” and “could destabilise the institution of marriage”. 

Furthermore, recognition of marital rape as an intersectional factor might be considered a concern by those who are against the criminalisation of marital rape and, further believes that this will result in the introduction of changes disrupting conjugal relationships and the institution of marriage.

However, these assertions can be negated on three basic grounds: 

1. The continuation of conjugal relations can never be more important than body integrity.

2. Marital Rape violates an individual’s basic human rights.

3. A married woman, along with everyone else, has a right to bodily autonomy.

Way Forward: A Fight for Rights

Marital rape has remained the least addressed form of sexual violence against women. It is also called Sexual Intimate Partner Violence (IPV). Underreporting of sexual IPV is one of the major issues that India is suffering from. According to the available data, only about 10% of victims report sexual IPV.

Sexual intercourse by a husband without her wife’s consent amounts to a violation of the human rights to liberty and dignity. The Supreme Court itself in the case of Independent Thought v. Union of India, (2017) observed that “Married Woman cannot be treated as a chattel– needs care, protection and rehabilitation.” 

The author is of the opinion that India needs to take a bold step by criminalising marital rape. Women are one of the vulnerable groups, and not recognising their consent in activities involving their bodies is a non-recognition of their basic human right. This further makes them more vulnerable to exploitation in Indian patriarchal society. 

As we stride into 2025, I hope India will soon criminalise marital rape, as lack of comprehension of consent creates a hollow where half of our population is expected to leave the fundamental rights at the threshold of their marital homes, by telling the female population that the bodies are no longer their own choice because they are married. In any case, the constitutional rights of women should not be trampled for the sanctity of marriage.

References:

• Frieze, I. H. (1983). Investigating the Causes and Consequences of Marital Rape. Signs, 8(3), 532–553. http://www.jstor.org/stable/3173950 

• Supreme Court Observer. (2024, October 16). Challenge to the marital rape exception - Supreme Court observer. https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/#:~:text=The%20second%20exception%20states%2C%20%E2%80%9CSexual,Nagaprasanna%20rejected%20the%20petitioner's%20plea. 

• Singh, V. P. (2021). Judicial approaches to the criminalisation of marital rape. Indian Journal of Gender Studies, 29(1), 10–32. https://doi.org/10.1177/09715215211056791 

• Gangoli, G. (2011). Controlling women’s sexuality: rape law in India. In G. Gangoli & N. Westmarland (Eds.), International approaches to rape (1st ed., pp. 101–120). Bristol University Press. https://doi.org/10.2307/j.ctt9qgkd6.9 

• Banerjee, D., & Rao, T. S. S. (2022). The Dark Shadow of Marital rape: Need to change the narrative. Journal of Psychosexual Health, 4(1), 11–13. https://doi.org/10.1177/26318318221083709 

• Manupatra. (n.d.). Articles – Manupatra. https://articles.manupatra.com/article-details/Marital-Rape-and-Law 

• Sharma, R. (2023, December 14). Unveiling the Silent Suffering: A Comprehensive exploration of marital rape in Indian society. https://migrationletters.com/index.php/ml/article/view/9360 

• Deosthali, P.-B., Rege, S., & Arora, S. (2021). Women’s experiences of marital rape and sexual violence within marriage in India: evidence from service records. Sexual and Reproductive Health Matters, 29(2), 127–138. https://www.jstor.org/stable/48714652

• Makam, G. (2023). Marital Rape Laws in India: Bridging the Gap between Gender Equality and Criminal Justice. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4475468 

• BENNICE, J. A., & RESICK, P. A. (2003). MARITAL RAPE: History, Research, and Practice. Trauma, Violence & Abuse, 4(3), 228–246. http://www.jstor.org/stable/26636357 

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Intersectionality of Sexual Violence against Dalit women

The author of this blog is Raktim Kundu, a second-year law student at Symbiosis Law School, NOIDA. He has a keen interest in Constitutional Law and Human Rights and can be contacted at raktimk605@gmail.com.

Introduction

Intersectionality as a concept is a result of the presence and acceptance of historical notions in the everyday lives of individuals. It helps to connect the dots (social notions) already present in society, but are only given individualistic care without understanding the real picture. One such dot is caste, especially the Scheduled Caste and Scheduled Tribe. The presence of inherent caste-based discrimination in society was felt starting from the historical times (in the form of caste-based categorical notion of Hindu society) till the present (in the form of incidents and statistical reports). The main victims of this caste-based discrimination are, most of the time, women, as they are discriminated against on multiple fronts: gender, caste, class and sometimes economic status.

Source:  (Kumar, 2021)

Why is Sexual Violence Committed against Dalit Women?

There are multiple reasons for the commission of sexual violence, some of which are:

1. Localisation of Dalit women:

According to the 2011 census, most of the Dalit population is concentrated in rural areas where there is a lack of quality education, awareness, economic growth, etc. Though the substantial number of rural villages has decreased, the main stereotypical notions against Dalit women still continue due to their societal acceptance.

2. Normalisation of sexual violence against Dalit women

Caste-based discrimination is one of the root causes of systematic violence. This has resulted in normalisation and tolerance or ignorance of the commission of sexual violence, starting from the psychological mindsets of the perpetrators to the people in charge of enforcing the law.

3. Intersectionality is a relatively new concept

The intersectionality approach was first conceptualised in the late 1980s by Kimberlé Crenshaw. This led to a gradual shift in the reasoning of Courts from a case-to-case basis approach (oftentimes, either of the elements – Dalit or women was absent from the judgement) to an express acceptance and application of the intersectionality approach (like Patan Jamal Vali v. State of Andhra Pradesh). 

4. Inability to report violence by victims themselves

Through the systemic oppression and consideration of other factors like poverty, family, and the power of the accused, the victims of sexual violence oftentimes resist reporting the incident or are unable to find a suitable platform to report them (especially in the case of sexual workers and victims of sex trafficking).

5. Power and Impunity

There is no honour in honouring crimes against women. The practical view of the inherent feature of caste in Indian society can be seen from the analysis of incidents of sexual violence against Dalit women till the judgement by the Courts. The process is full of thorns.

Are any Socio-Legal Steps Taken to Stop Sexual Violence?

An Act was enacted that considers the intersectionality of caste and gender. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, has laid down specific punishments for certain sexual acts like verbal and physical sexual abuse under section 3 (1)(w). It has also highlighted the commission of certain sexual offences of a general nature without any change in the punishment (section 3(2) (va) read with Schedule: sections 354A, 376B IPC)). The procedure for the trial of cases has been modified to a victim-oriented process, such as the establishment of special courts, the assistance of special public prosecutors, etc. This shows that the Act has led to the inclusion of the Dalit section of women within the criminal justice system. However, it lacks a positive activist approach, like additional or increased punishment and procedural sections, which can lead to a change in the approach of enforcement agencies. 

Several recent judgements of the Supreme Court, High Courts and District Courts have highlighted the intersectionality of caste and gender in their judgements. 

1. Patan Jamal Vali v. State of Andhra Pradesh

1. Accused raped a blind girl belonging to the Scheduled Caste

2. The Sessions Court took into consideration the fact that the victim’s mother was illiterate to dismiss the accused’s counsel argument for the removal of S.3(2)(v) of the Prevention of Atrocities Act, 1989

3. Besides awarding a life sentence to the accused, the Supreme Court recommended reformation in the Act of 1989 to include specific instances of sexual violence. It also considered the hardship of proving that the victim’s family belonged to the Scheduled Caste.

The case shows the disconnection between the aim of the statute and the procedural reality regarding sexual violence against Dalit women. It also shows that the application of the intersectionality approach demands more than mere formal acknowledgement of the problems faced by Dalits (by including them in the general criminal justice system by enacting a different Act). 

2. Shantiniketan Incident:

1. A 15 years old girl belonging to Scheduled Tribe was gang raped

2. Only offence under Section 376 of IPC was registered, and no offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was included.

The Government of India has launched the following schemes and initiatives for the prevention of sexual offences against women:

1. Emergency helpline: 112 with a category designated for women

2. One Stop Centre (OSC) scheme provides an integrated scheme for overall law enforcement agencies, including medical aid to victims of sexual offenders. Among the sanctioned 728 OSCs, 595 OSCs are operational

Different organisations, including Human Rights Watch, NGOs, and Legal Services Authorities, have successfully taken various awareness initiatives, like reports, helping to implement the schemes, and helping in the process of enforcement of rights 

Why does Sexual Violence against Dalit Women Persist?

1. Statutory Loopholes of existing Acts

1. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, is only applicable to offences committed by persons not belonging to Scheduled Castes and Scheduled Tribes and thus omits from its view people belonging to the caste who may abet the commission of the sexual offence. Also, the scope of acts included in the domain of sexual violence is expressly limited.

2. The Bharatiya Nyaya Sanhita, 2023 has highlighted some sexual acts like rape (section 63), gang rape (section 70), and outraging modesty (section 74). There are no specific caste-based punishments in BNS.

3. Lack of consideration of aggravating factors like technology

2. Procedural Limitations to the Application of Acts

Laws become mere representations of social issues and are useless when procedural implementation is lacking. The same is true in the case of sexual violence. Continuous incidents of procedural lapses like abuse of power, dereliction of duty by governmental and enforcement organisations, and lack of initiatives for the development of society have stalled the implementation of the Acts and judgements of the Court. 

3. Descriptions in judgements of Courts as highlighted by an analysis of 12 judgements by the National Council of Women Leaders

The judgements, like those highlighted in the report, represent a contrasting picture of what is supposed to be portrayed by the Courts. An analysis of these judgements, some of which are mentioned below, highlights the victim struggling to reach the Court in the hope of getting justice often times have to lose their hope after the Court fails to appreciate the matter by giving the right judgement (due to procedural lapses, lack of evidence, improper application of substantive law, etc.).

1. Delay in delivery of judgement, like in the case of Karamchedu Massacre (in 1985), it was about 20 years, and the accused had died

2. The gang rape case of Bhanwari Devi in 1991, formerly known as Vishaka v. State of Rajasthan, highlights the vulnerability of female activists who protest for the protection of Dalits and against the stereotypical notions of society like child marriage.

3. There was a diversity of opinions between the public and the Court on the cause of the offence. For example, in the Khairlanji Massacre in 2006, it was held that the cause was revenge and not caste, which was judged on the ground of lack of evidence (which also later led to the acquittal of the accused)

4. Acquittals, due to insufficient evidence, such as in the 2014 Bhagana gang rape case, often fail to acknowledge the deep-rooted systemic oppression that not only hinders the collection of evidence but also daunts survivors from coming forward to share their harrowing experiences.

5. Issuing charges against activists who stand as a voice for the victim, by trial courts, like in the rape and murder case of Jisha in 2016.

4. Vicious cycle of oppression:

Sexual violence does not happen in isolation. Emotional and mental oppression create insecurity that limits educational opportunities. When safety is compromised, it fosters a cycle of issues that can impact future generations, underscoring the need to address these problems to create a safer, more supportive environment. 

5. Lack of Specific Focus on Dalit women by the Executive

Under the constitutional structure, the executive is responsible for enforcing the laws enacted by the legislature. However, in the case of sexual violence, the Executive fails to uphold its duty, as can be seen from the lack of an intersectionality approach in the existing schemes for victims of sexual offences and Dalits. Various schemes have been launched to uplift Dalit people, including empowerment and economic growth. Still, no specific scheme or initiative has been put in place with regard to sexual violence. 

Is there any Practical Solution? 

To solve an issue, the first step is to accept the occurrence of the problem. This will lead to a smooth flow in the formulation and implementation of safeguards. However, there is, generally, both a lack of acceptance of the issue of sexual violence against Dalit women and an ignorance of the incident. This necessitates the adoption of the intersectionality approach as it not only helps to highlight the uniqueness of experiences faced by the victims but also helps to connect the existing movements for Dalits and women with each other. 

The argument has increasingly been accepted in the courts, mirroring a change in societal attitudes, especially highlighted by the Ayodhya and Hathras incidents, and social programmes like Kabir Kala Manch in Maharashtra. As public perceptions shifted, they affected legal interpretations, demonstrating the link between societal values and the justice system. 

Caution:

The application of the intersectionality approach is important. Still, it should not be used as a means to distract the general public from the actual incidents, as was done in the Manipur incident.

References

3 in custody over rape-murder of Dalit woman in Ayodhya. (2025, February 03). Retrieved from India Today: https://www.indiatoday.in/india/uttar-pradesh/story/three-police-custody-rape-murder-dalit-woman-ayodhya-uttar-pradesh-2673837-2025-02-03

Attacks on Dalit women: a pattern of impunity. (n.d.). Retrieved from Human Rights Watch: https://www.hrw.org/reports/1999/india/India994-11.html

Dalit. (2025, March 08). Retrieved from Britannica: https://www.britannica.com/topic/Dalit

How Fake News Created Pretexts to Lynch Kuki-Zo Women in Manipur. (2023, January 01). Retrieved from NewsClick: https://www.newsclick.in/how-fake-news-created-pretexts-lynch-kuki-zo-women-manipur

(2022). Initiatives for SC welfare. Ministry of Social Justice & Development. Retrieved from https://static.pib.gov.in/WriteReadData/specificdocs/documents/2022/apr/doc20224737401.pdf

Kumar, A. (2021, October). Sexual Violence against Dalit Women: An Analytical Study of Intersectionality of Gender, Caste and Class in India. Journal of Women's Studies, 22(10), 123-134. Retrieved from https://vc.bridgew.edu/jiws/vol22/iss10/11 

(2021). Landmark cases of caste-based sexual violence from 1985-20220. National Council of Women Leaders. Retrieved from https://counterviewfiles.wordpress.com/wp-content/uploads/2021/09/cbsv-landmark-cases-illustration-english-ncwl-september-2021.pdf

Measures taken by Government to prevent Crime against Women. (2019, December 10). Retrieved from Press Information Bureau: https://pib.gov.in/newsite/PrintRelease.aspx?relid=195670

NCRB Report Shows Rise in Atrocities Towards Dalits and Adivasis. (2022, August 31). Retrieved from NewsClick: https://www.newsclick.in/NCRB-Report-Shows-Rise-Atrocities-Towards-Dalits-Adivasis

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