The formation of a valid consent for sexual intercourse has varying qualifiers depending upon the facts and circumstances in question. But is it possible for a lack of consent to qualify as a legally valid consent?

The second exception to section 375 of the Indian Penal Code gives an affirmative response to the above question. The marital rape exception states that “sexual intercourse by a man with his wife … is not rape.” The exception to marital rape under existing rape laws are based upon the doctrine of coverture which an idea from Anglo-American law, wherein the husband and wife were considered a single entity which was legally represented by the husband. Currently India is amongst those 34 countries where marital rape remains decriminalized.

The status quo was challenged in the Delhi High Court where the petitioners relied upon  Article 14, 15(1), 19(1)(a), and 21 of the Constitution to argue against the constitutional validity of exception 2 of section 375 which deals with the offence of rape. The two-judge bench delivered a split judgment: Justice Shakder struck down the exception as unconstitutional on all of the above grounds, while Justice Hari Shankar upheld its constitutionality.

The split in the opinion shows the two contrast existing mindset around the idea of gender roles and patriarchal authority. While one stream of thought believes that marriage somehow dilutes the individual characteristic of a person and subsumes it into a conjugal organism, the other believes that marriage is the coming together of two equals with their rights remaining unchanged in the context of individual autonomy. Justice Hari Shankar believes that marriage requires a lower quality of consent for sexual intercourse; while he further believes sexual intercourse to be a legitimate expectation during wedlock. Justice Shakder contradicted with these opinions while maintaining the idea of bodily autonomy and equality before law.

In the contemporary times, the Indian constitutional law does not and cannot support the dilution of sexual consent based on marital status. The observation is not merely individual and the same has been emphatically pronounced by the judiciary in the recent times.  The  idea has been discussed in the Puttaswamy judgment, where Chandrachud J’s plurality opinion is unambiguous on the question of law, while many the other judgments make it clear that the decisional autonomy is a fundamental facet of the right to privacy, and is not lost or in any other way compromised through social institutions such as marriage. Decisional autonomy within the marriage was also the fundamental basis upon which adultery was decriminalized in the Joseph Shine judgment; and sexual autonomy was at the core of the Navtej Johar judgment. It is too regressive now to contradict this fundamental precept.

I believe that any opinion that supports the marital rape exception has no place in a jurisprudence that is formally committed to the basic idea of individual autonomy, dignity, privacy, and equal concern and respect. This includes the baffling idea that a married woman who is raped will feel “less outraged” than an unmarried woman who is raped. Examples can be multiplied; and when this judgment goes on appeal, the least that can be done is a formal expunging of these observations from the record for the sake of sustaining the basic dignity of a judicial institution.