When the Law’s Blind Spots Leave Women Vulnerable, Five Critical Gaps in India’s Legal Framework
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.
The Marital Rape Exception
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. Fifty-four years after the Law Commission’s recommendation, the law remains unchanged. In those five decades, countless women have suffered sexual violence within marriage, denied the same legal protection that applies to every other woman.
The message is clear: a wife’s consent is presumed, permanent, and irrevocable. Her body is not her own.
Different Marriage 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. When the state itself says that women are ready for marriage at 18 but men need three more years to mature, it reinforces a patriarchal assumption: women do not need the same level of maturity because they will be dependents, not equal partners.
Restitution of Conjugal Rights
Restitution of Conjugal Rights 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. It treats a woman as a duty-bearer, not a rights-holder. Her body becomes a site for the enforcement of marital obligations, not the seat of her personhood.
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. A 17-year-old in a consensual relationship with a same-aged partner can see that partner prosecuted as a sex offender. The law, intended to protect children, can become a tool for punishing young love.
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.
The law assumes that a woman cannot simply desire a relationship for its own sake; she must always be seeking marriage. Her consent is not taken at face value but interrogated for its underlying motives. This is not respect for women’s agency; it is its denial.
Conclusion: Justice Remains Conditional
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 Manipur survivor’s sister asked: “Nobody could give her justice.” The question haunts us because we know the answer. Our laws are not designed to give women justice. They are designed to preserve patriarchal structures, to protect the institution of marriage, to control female sexuality.
Until we confront these blind spots, until we reform these laws, until we place women’s consent and bodily autonomy at the centre of our legal framework, the question will continue to be asked. And the answer will continue to be: nobody could give her justice.
Q&A: Unpacking the Five Legal Gaps
Q1: What is the marital rape exception and why is it problematic?
Section 63 of the Bharatiya Nyaya Sanhita exempts non-consensual sex by a man with his wife from the definition of rape. This presumes irrevocable and perpetual sexual access within marriage, denying wives the criminal redress available to every other woman. The 42nd Law Commission Report recommended criminalising marital rape in 1971—over 50 years ago—yet the law remains unchanged.
Q2: Why are different marriage ages for men and women problematic?
The minimum marriage age is 18 for women and 21 for men, with no scientific basis for the distinction. If the goal is maturity or preventing early marriage, the same age should apply to all. Lowering women’s marriage age reinforces dependency, legitimises age gaps, and curtails education. It institutionalises inequality from the start of married life.
Q3: What is Restitution of Conjugal Rights and how does it harm women?
RCR allows one spouse to compel the other to resume cohabitation without proving “reasonable cause” for withdrawal. The burden falls on the withdrawing spouse—usually women—to justify their decision, even when withdrawal stems from abuse. Given marital rape is not criminalised, RCR can force women back into abusive situations, prioritising marriage preservation over bodily integrity.
Q4: How does POCSO affect consensual adolescent relationships?
POCSO offences do not require proof of non-consent, making consent irrelevant for those under 18. Many prosecutions arise from romantic relationships among adolescents, often initiated by families seeking to control young women’s choices (especially in inter-caste or inter-faith relationships). The law fails to distinguish exploitation from consensual intimacy, sacrificing adolescent autonomy.
Q5: What is the problem with Section 69 on false promise of marriage?
Section 69 criminalises sex obtained by false promise of marriage, presuming women’s sexual consent is always tied to marriage expectation. Consensual non-marital relationships are reframed as deception. Intentions evolve; without clear legal standards, this invites inconsistent enforcement and misuse. The law denies that women can desire relationships without seeking marriage.
