The question of whether consent is relevant within marriage is now one of the most polarising debates in Indian legal discourse. Although sexual autonomy and personal integrity have been judicially acknowledged as part of the Article 21 right to life and personal liberty,[1] The criminal law is quite controversial because Section 63 of Bharatiya Nyaya Sanhita criminalizes non-consensual sexual intercourse, but simultaneously exempts the husband from prosecution if the wife is not under 18 and the couple is not separated. [2]
Indian marriage law has often been depicted as a narrative of progress, striving to harmonize deeply entrenched social norms with modern legal principles. However, the introduction of the ‘sex-consent matrix’ sheds light on the complexities underlying this narrative.[3]. Although it is assumed that marriage sanctifies sexual relations, a spouse’s right to refuse sexual relations is not recognised by either the Hindu Marriage Act of 1955 or the Special Marriage Act of 1954. Non-consensual acts in this context are typically addressed through civil remedies, such as grounds for divorce or separation, but do not constitute a criminal offense. In this way, what amounts to a violation of bodily autonomy and dignity is reframed as a private matrimonial grievance, despite constitutional jurisprudence elevating autonomy to a fundamental right.
This duality has created a fragmented legal space where the safeguarding of sexual autonomy is determined not by the central tenet of consent, but instead, totally arbitrarily by marital status, age, and separation.
STATUTORY LANDSCAPE: CIVIL AND CRIMINAL DIMENSIONS
The legal framework governing sexual autonomy within marriage is spread across criminal law and personal laws, each treating the issue through a different lens.
- Bharatiya Nyaya Sanhita,2023 (BNS)
Section 63 defines ‘Rape’ and criminalizes non-consensual intercourse. However, Exception 2 provides immunity to husbands, stipulating that sexual intercourse by a man with his own wife and the wife not being under 18 is not rape. This provision has long been a focus of criticism for conflicting with the constitutional protections and international norms.[4].The “Independent Thought vs. Union of India” judgment addressed the issue of marital rape within the context of child marriage, where the Supreme Court read down the exception to exclude wives under eighteen, thereby aligning with the Protection of Children from Sexual Offences Act 2012 (POCSO), which imposes strict liability for sexual acts with minors.[5]
- Hindu Marriage Act, 1955 (HMA)
The HMA does not specifically mention sexual consent, but allows a spouse to get divorced based on cruelty under Section 13(1) (ia). The courts have at times interpreted cruelty to include forced or degrading sexual conduct, mindful of the mental pain or humiliation caused to the spouse’s dignity.[6] However, the HMA does not create criminal liability, treating this as a private matrimonial dispute, not as a public wrong.
- Special Marriage Act, 1954 (SMA)
Similar to HMA, the SMA provides “cruelty” as a ground for divorce under section 27 (1) (d).[7]Nevertheless, it does not provide criminal sanction for non-consensual sex, even if it governs civil marriages where the parties expressly want a secular alternative.
This pronged approach illustrates a distinct difference between criminal law that selectively criminalizes non-consensual intercourse in marriage (only for minors or for separate wives) and personal law that treats “cruelty,” providing survivors with access to public remedies.
STRUCTURAL ABSENCE OF CONSENT IN PERSONAL LAW
- Minimal recognition of consent to marriage
There is no explicit requirement for consent for two people to get married under the HMA or the SMA. The HMA and SMA have identical provisions containing an extremely medicalised version of consent for the validity of marriage between two persons. In case a party has unsoundness of mind, mental disorders, or insanity, the marriage is voidable under the HMA and void under the SMA. Further, if the consent is obtained by fraud or force/coercion (which may have high thresholds of proof), the marriage is voidable. This leads to the somewhat surprising conclusion that there is no requirement for explicit consent to marriage under these laws[8]. This yields the ironic result that, except in cases of incapacity, fraud, or coercion, there is no positive duty for parties to freely express their consent to marry.
- The Public Notice requirement under the Special Marriage Act
According to the SMA, if a man and woman, professing the same faith or diverse ones, intend to get married under the Special Marriage Act, they are mandated to give a 30-day notice, which would be put up on the notice board of the registrar of marriages, before the date of tying the nuptial knot.[9] These practices essentially solicit families and communities to engage, by enabling families and communities to threaten or harass couples attempting to conduct a “love marriage” inter-caste or inter-faith. By endorsing familial consent and community prerogative, the SMA undermines the decisional and sexual autonomy of two adults who are otherwise legally entitled to be married while exposing them to potential harassment and violence.
- Restitution of conjugal rights: Legal mandate for cohabitation
Section 9 of the Hindu Marriage Act[10], 1955, and Section 22 of the Special Marriage Act, 1954, both deal with the remedy of restitution of conjugal rights[11]. This legal remedy enables a spouse who has been abandoned by their partner to request the court to mandate the other spouse to return and continue cohabitation.
In Saroj Kumar v Sudarshan Kumar Cadha, the Supreme Court upheld the constitutionality of RCR, since it served the social goal of preventing a breakdown of marriages. The Court noted that a spouse could refuse cohabitation for a “reasonable excuse,” such as cruelty, but did not identify lack of sexual desire, incompatibility, or withdrawal of consent as a rational. This framing privileges access as an entitlement and undermines the autonomy of a spouse to refuse intimacy.[12]
THE CONSENT SEX MATRIX
To understand the relationship between structural gaps and criminal legislation, the Sex Consent Matrix illustrates marital sex across two separate dimensions: (1) the presence or absence of consent, and (2) the classification of the act under relevant laws as either a legitimate act or a criminal act. This framework highlights the inconsistencies within Indian law, which at times penalize consensual acts while permitting non-consensual acts.
Quadrant 1- Consensual and legal
This quadrant encompasses traditional, consensual sexual relationships involving cohabiting spouses, when both are eighteen or older. Such relationships are protected as forms of conjugal rights, as stated in the HMA and SMA, and are therefore free from the power of criminal interference. However, constitutional jurisprudence indicates that this kind of intimacy does not override individual autonomy. In Suchita Srivastava v Chandigarh Administration, the Supreme Court held that a woman’s decisions about reproduction and sexuality fall under the protection of Article 21 and reinforced the idea that marriage does not extinguish personal autonomy.[13]
Quadrant 2- Non-consensual and illegal
The law supports criminal liability in two instances. First, the non-consensual intercourse with the separated wife constitutes rape under Section 63 of BNS, because separation gives rise to no presumption of cohabitation. Secondly, sexual intercourse with a wife under 18, regardless of consent or status of marriage, is statutory rape.
Quadrant 3 – Non-Consensual but Legally Exempted
This quadrant includes the most controversial scenario, i.e, the marital rape of an adult (18+) wife in a relationship with her husband. Because of Exception 2 to Section 63 of BNS, such act does not constitute as rape – the survivors are only left with the civil remedies available to them, including; divorce on the grounds of cruelty under the Hindu Marriage Act / Special Marriage Act (HMA / SMA); or injunctive relief under the Protection of Women from Domestic Violence Act 2005 (PWDVA).[14] The non-consensual sex with adult wives remains legally protected despite the constitutional guarantee of autonomy and dignity.
Quadrant 4- Consensual but Statutorily Restricted
The final quadrant involves consensual sexual relations with a wife under eighteen, even where both parties willingly engage. Despite mutual agreement, such acts are classified as statutory rape. Although the HMA allows for the annulment of child marriages and the SMA establishes minimum ages for marriage, neither law explicitly criminalizes consensual relationships of this nature. This results in a paradox: consensual adolescent intimacy is penalized, while non-consensual sexual relations within adult marriages remain unexamined by the law under Quadrant 3.
CONCLUSION
From the instant a marriage is solemnized under the HMA or SMA, and throughout its continuing intimate relationships, Indian law progressively undermines the significance of consent. There are Insufficient protections for genuine consent to marry, while the public notice system that subjects couples to coercion, and the legal endorsement of restitution of conjugal rights collectively diminish autonomy. When this is combined with the Sex Consent Matrix, the scenario reveals a state of structural inconsistency and constitutional discord.
Author(s) Name: Sabreen Salmani (Thakur Ramnarayan College Of Law)
References:
[1] The Constitution of India,1950, Art. 21
[2] Bharatiya Nyaya Sanhita,2023, s 63 exception 2
[3] The Suits Law Firms,’ Consent: The Sex-Consent Matrix in Indian Marital Laws(2025) <https://www.thesuitslawfirm.com/consent-the-sex-consent-matrix-in-indian-marital-law > accessed on 20 July 2025
[4] n (2).
[5] Independent Thought v Union of India (2017) 10 SCC 800
[6] Hindu Marriage Act,1955, s 13 (1) (ia)
[7] Special Marriage Act,1954, s 27 (1)(d)
[8] Jwalika Balaji,” Introducing the Sex-Consent Matrix” in Indian Marital Law (2025) <https://lawandotherthings.com/introducing-the-sex-consent-matrix-in-indian-marital-law/ > accessed on 7 July 2025
[9] Dhananjay Mahapatra,’ Special Marriage Act Mandates Prior Publishing of Notices, SC had Dismissed PIL Challenging a Mandatory Notice’ The Times of India (India, 7 February 2025)
[10] Hindu Marriage Act, s 9
[11] Special Marriage Act, s 22
[12] Saroj Kumar v Sudarshan Kumar Cadha (1984) 4 SCC 90
[13] Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
[14] Protection of Women from Domestic Violence Act, 2005
