When communal violence broke out in Manipur three years ago, incidents of physical and sexual violence made their way to our news feeds. Manipur witnessed a barbarity whose effects will be suffered even decades later. Earlier this month, a 20-year-old woman who was gang-raped during the ethnic violence succumbed to her injuries. Devastating. The victim’s sister’s words, spoken at Delhi’s Constitution Club, remain with me : “Nobody could give her justice.” What does justice look like for women in India? I examine how lacunae in key laws continue to undermine women’s consent.
Codified in the Indian Penal Code of 1860 and retained in Section 63 of the Bharatiya Nyaya Sanhita, the law continues to exempt non-consensual sexual intercourse by a man with his wife from the definition of rape.
This exception fundamentally negates women’s consent within marriage by presuming irrevocable and perpetual sexual access. While women may seek civil remedies under the Protection of Women from Domestic Violence Act, 2005, the denial of criminal redress for rape entrenches a hierarchy in which marital status overrides bodily integrity. The 42nd Law Commission Report in 1971 recommended criminalising marital rape. Yet, the BNS retains it.
Different marital ages
Under the Prohibition of Child Marriage Act, 2006, and allied statutes, the minimum age for marriage is 18 years for women and 21 for men. The differentiation has no scientific basis. If the objective is to prevent early marriage or ensure maturity, the same age should apply to all genders. If the objective is to protect women, lowering their marriage age defeats that purpose. It legitimises age gaps, and reinforces dependency and curtailed education. A law that institutionalises inequality at entry cannot claim to promote dignity, equality, or meaningful consent.
Restitution of conjugal rights
Restitution of Conjugal Rights (RCR) allows one spouse to compel the other to resume cohabitation if they have withdrawn from the marriage without proving “reasonable cause”. Codified under Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act, the remedy treats cohabitation in marriage as an enforceable duty rather than one based on consent.
The burden is placed on the withdrawing spouse, most often women, to justify their decision, even where withdrawal is driven by emotional, psychological, or sexual abuse. Given that marital rape is not criminalised, RCR can force women back into situations that compromise bodily integrity and dignity. By prioritising the preservation of marriage over consent, the law conflicts with the rights to life, privacy, bodily autonomy, and equality. Conversely, there are situations where women and girls expressly give consent, yet the law refuses to recognise it.
Criminalisation of consensual underage relationships
Under the POCSO Act, 2012, offences like sexual assault do not require proof of non-consent. This implies that consent becomes irrelevant when a person below age 18 is involved in a sexual act. Large proportions of POCSO prosecutions stem from romantic relationships among adolescents. These cases are often initiated by families seeking to control young women’s choices, especially in instances of inter-caste, inter-faith, or socially disapproved relationships. Without distinguishing exploitation from consensual intimacy, the law sacrifices adolescent autonomy without meaningfully strengthening protection against abuse.
Marriage assurance
Section 69 of the Bharatiya Nyaya Sanhita, 2023 criminalises sexual intercourse obtained by a false promise of marriage. This rests on the presumption that women’s sexual consent is tied to the expectation of marriage. Consensual non-marital relationships are thereby reframed as sites of deception or victimhood, even when both parties entered the relationship voluntarily. Intentions in relationships evolve, and the absence of clear legal standards invites inconsistent enforcement and potential for misuse. So long as consent remains conditional in law, justice for women will remain conditional in reality, in direct defiance of the Constitution’s promise of dignity, equality, and personal liberty.
The writer is MP and leader, All India Trinamool Congress Parliamentary Party. Research credit: Chahat Mangtani
