Authored By: Divya Choudhary
Manipal University Jaipur
ABSTRACT
Indian criminal law continues to recognise a marital rape exception based on the idea that marriage implies permanent sexual consent. This article examines whether the doctrine of implied consent can be justified under modern rape law, where consent is understood as voluntary, ongoing, and capable of being withdrawn. It argues that implied consent is a legal assumption that treats marital status as a substitute for actual consent. While the law requires clear and present consent in all other sexual relationships, this requirement is ignored within marriage, creating an inconsistency in criminal law. The article uses a doctrinal method to analyse statutory definitions of consent and basic principles of criminal law. It shows that marriage may create expectations of intimacy but cannot remove an individual’s right to refuse sexual acts. By focusing only on implied consent and not on broader constitutional or policy debates, the article highlights how this doctrine weakens the role of consent in rape law and undermines the recognition of sexual autonomy within marriage.
Key words: Marital rape, implied consent, criminal law, and sexual autonomy.
INTRODUCTION
Consent is considered an essential element of the offence of rape under Indian law. It is consent which distinguishes rape from consensual sexual intercourse and forms the basis of criminal responsibility in sexual offences.2 According to the Bharatiya Nyaya Sanhita, 2023 (BNS), consent means “an unequivocal voluntary agreement where the women, by words, gestures, or any form of verbal or non-verbal communication, communicates her willingness to participate in the specific sexual act.” The law further clarifies that the mere absence of physically resistance to the act of penetration cannot, by itself, be regarded as consent.3 However, the BNS also expressly provides that sexual intercourse or a sexual act by a man with his own wife does not constitute rape if the wife is above the age of eighteen years.4 This marital rape exception is rooted in a pre-seventeenth century common law rule articulated by English common lawyer Sir Matthew Hale, who asserted that a woman’s consent to sexual intercourse is irrevocably given upon marriage.5 This outdated standard still has an impact on contemporary Indian legal theory according to the BNS. This is what is known as doctrine of implied consent.
RESEARCH METHODOLOGY
This study adopts a doctrine research method, relying on primary sources like statues, case laws, and secondary sources like literature. This study is based on an analysis of statutory provisions governing consent and sexual offences under Indian criminal law. It examines the concept of consent as defined in rape law and evaluates how the doctrine of implied consent operates within the marital rape exception. By focusing only on implied consent and not on broader constitutional or policy debates, the article highlights how the doctrine weakens the role of consent in rape law and undermines the recognition of sexual autonomy within marriage.
DOCTRINE OF IMPLIED AND IRREVOCABLE CONSENT IN MARITAL RAPE
The doctrine of implied consent is based on the idea that once a women gets married, her right to give or refuse consent to sexual relations is taken away.6 Such consent is treated as irrevocable, meaning that the wife cannot withdraw her consent during the subsistence of marriage. Under this belief, a wife is expected to submit to sexual intercourse with her husband even if it is against her wishes. This pre-colonial idea continues to exist in the current legal system, despite consent being treated as the most crucial factor in the offence of rape.
The question of criminalising marital rape reached the Supreme Court through several petitions. In its affidavits, the Union Government stated that although a women’s consent is recognised within marriage, marriage involves an ongoing expectation of reasonable sexual relations between spouses. It further argued that lack of consent within marriage does not have the same legal consequences as it does outside marriage and that existing laws dealing with domestic violence and sexual abuse are enough to protect women. Therefore, the Government maintained that treating marital rape as the offence of rape would be “excessively harsh and disproportionate.”7 The marital rape exception entered Indian laws during the British colonial period. This exception was later done away with in England in the year 1991 through the landmark decision in R v. R, 8 which rejected the outdated idea of “matrimonial consent” exemption and affirmed that consent is required for every sexual act, irrespective of marital status. Despite this legal development in the country of origin, the marital rape exception continues to remain part of Indian law, raising serious questions about its continued justification.
In important judgements such as Navtej Singh Johar v. Union of India,9 which decriminalised consensual same-sex relations, and Joseph Shine v. Union of India, 10 which decriminalised adultery, the Supreme Court strongly upheld the principles of personal choice, bodily control, and sexual freedom. However, the marital rape exception creates a contradiction in the law by placing married women in a position where they have fewer rights over their bodily autonomy than unmarried women. Hence, it is evident that the law permits unequal treatment and continues a system in which married women are legally placed in a weaker position. This results in unequal legal treatment within criminal law.11
Marriage cannot be equated with consent. Recognising consent with marriage is not only a legal necessity but also a moral and human imperative. It upholds the value of equality, mutual respect, and trust that form the foundation of a marital relationship. A fair and just society must acknowledge that every individual, regardless of marital status, has the right to make decisions about their own body, sexuality, and personal choices. Marriage should therefore be understood as a relationship between equals, and not used as a shield to justify control, coercion, or abuse.12
CONCLUSION
The doctrine of implied and irrevocable consent is based on the assumption that marriage itself replaces an individual’s right to choose in matters of sexual consent. This assumption conflicts with modern rape law, which treats consent as voluntary, ongoing, and capable of being withdrawn at any time. Although consent is recognised as the core element of sexual offences, the marital rape exception allows marriage to override this requirement. By presuming permanent consent, the law reduces the agency of married women and makes refusal within marriage legally meaningless. This reflects an outdated view of marriage that prioritises the institution over individual autonomy. While marriage may involve expectations of intimacy, it cannot legally remove the right to refuse sexual acts. If consent is to remain central to rape law, it must apply equally regardless of marital status. Therefore, the doctrine of implied consent cannot be sustained within modern Indian criminal law.
Reference(S):
1 Author is a student as Manipal University, Jaipur, India.
2 Mr. Yogendra Kumar Sharma and Dr. Arun Kumar Singh, “Consent Jurisprudence in Indian Rape Law: A Critical Examination” December-2025.
3 The Bharatiya Nyaya Sanhita, 2023 (45 of 2023) Section 63, Explanation 2.
4 The Bharatiya Nyaya Sanhita, 2023 (45 of 2023) Section 63, Exception 2.
5 Matthew Hale, “The History of the Pleas of the Crown” 1736.
6 Deepika K., Consent at the Crossroads: Reforming POSCO Act for a Changing World, LiveLaw, 30 December 2025, https://www.livelaw.in/articles/consensual-relationship-and-pocso-act-analysis-516514
7 Helen Regan and Esha Mitra, “Marital Rape is still not outlawed in India. Changing that would be ‘excessively hard’, government argues”, CNN World, 11 October 2024, https://edition.cnn.com/2024/10/11/india/indian-government-marital-rape-intl-hnk.
8 R v. R, 1991 UKHL 12, 1992 1 A.C. 599 (H.L.).
9 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
10 Joseph Shine v. Union of India, (2019) 3 SCC 39.
11 Kanaksha Kataria, “Till Consent do us part: The Marital Rape Exception and India’s Constitutional Deficit,” LSE, 14 January 2025, https://blogs.lse.ac.uk/humanrights/2025/01/14/till-consent-do-us-part the-marital-rape-exception-and-indias-constitutional-deficit/.
12 Ms. Taijosi Dey, “Marriage is Not Consent: Rethinking Immunity for Marital Rape,” November 2025.
