The notion of marriage being a sacrosanct institution as portrayed by the mainstream Indian media is a delusionary concept as opposed to the reality that exists. The split verdict delivered by the Delhi High Court in May 2022 on the issue of criminalising marital rape, is testamony to the most execrable form of masochism hidden behind the veils of marriage. The inevitable delays in hearing this case point out towards the deep seated system of oppression that exists in the society. A form of oppression that under the guise of stabilising the institution of marriage is widely used as a tool to deny women bodily autonomy and agency over cohabitation rights. Marriage is used as a mere licence that supposedly grants a man rights over a woman's body irrespective of her wishes. This "implied consent" as it exists is an act of gender based violence that is coercive and arbitrary.

India is one of the few countries in the world where non-consexual sex within marriage remains a legal right of the male spouse. Marital rape enjoys an exeption under Section 375 of the Indian Penal Code which decriminalizes it provided the wife is over eighteen years of age. The rationale behind this exception is questionable. The exception is based on outmoded concepts driving roots from England's Doctrine of Coverture.

The doctrine noted that husband and wife inexplicably became one after marriage, going on to label women as the property of their husband. In his book titled, Historia Placitorum Coron�, Mathew Hale iterates that a husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract: the wife has given up herself to her husband, which she cannot retract. The ideological justifications such as these internalize narratives of misogyny which are carried forward through the judicial system highlighting a blatant disregard for feminist rights.

In License To Rape: Sexual Abuse Of Wives, David Finkelhor and Kersti Yllo expose how romanticising the "he wanted to, she didn't" scenario is an act of brutality and humiliation which equals to other forms rape that are criminalised. It is deplorable how the system continues to disregard the damage and trauma experienced by women in subsisting and surviving marriages as not having the same effect as any other sexual offender, forcing women to endure sexual violence.

​​The existing jurisprudence in India reinforces the idea of how a victim should not be further victimised by laying down rationales such as consent not being the sole deciding factor or disguising sexual violence under the garb of passion. The judiciary has on numerous instances victimised victims by reiterating that cohabitation rights are an obligation that delve on a woman via marriage and placing this obligation at a higher pedestal as opposed to her right to bodily autonomy.

Exclamations such as the experience of a woman who is compelled to engage in a sexual act with her husband against her own free will cannot be equated to that of a woman who is abused by a stranger. The sheer oppression faced by a woman who drags her husband to court for rape exhibits how almost seventy years after independence, women in the country are still left to deal with a sado masochistic society.

The aforementioned socio legal issue legitimised by the judiciary is a menace that violates a woman's basic human rights including the right to bodily integrity and the choice to be able to say NO. The case, now being referred for consideration to the Supreme Court of India has ignited much awaited deliberation on this oppressive legislation. The scrutiny of this issue is integral to build a society that is more empathetic towards victims of marital rape and allow for integration of feminist perspectives in this domain.

Written By:

1. Lishika Sahni and
2. Kritin Bahuguna