Restitution of Conjugal Rights, Consent, and the Question of Marital Rape

I recently watched Chiraiya. It’s uncomfortable, heavy, and very easy to dismiss. A lot of people are already calling it propaganda.

But I can’t help but wonder, are we so quick to label something as propaganda simply because it shows women as victims in a way that makes us uneasy?

Yes, there have been instances of misuse of Section 498A of the Indian Penal Code. Courts have acknowledged it, society has debated it, and as lawyers, we’ve all seen cases where the provision has been stretched beyond its intent.

But it would be dishonest to stop the conversation there.

Dowry deaths are not fiction. Cruelty within marriage is not rare. These are not isolated stories created for effect; they are lived realities across the country.

Misuse exists. So does abuse. Both can be true at the same time.

And somewhere in between these two truths, there are cases we come across far too often--cases that don’t neatly fit into slogans or legal boxes. Cases where consent is blurred, where silence is mistaken for agreement, and where the law, as it stands today, leaves very little room to intervene.

Marital rape is one of those spaces.

As a lawyer, there are moments when you sit across from a client, and you know something deeply wrong has happened--but you also know that the law does not recognize it in a way that allows you to act meaningfully. That gap, between harm and remedy, is frustrating because it is both structural.

And that is where this conversation becomes uncomfortable.

Because when we talk about marital rape in India, we are not just talking about criminal law. We are also talking about how family law quietly shapes the boundaries of consent within marriage.

The continued existence of restitution of conjugal rights (RCR) under the Hindu Marriage Act, 1955, creates a legal framework that implicitly prioritizes cohabitation and marital access over individual autonomy, making the recognition of marital rape structurally difficult within Indian law.

The Tension We Avoid Naming

You are dealing with three legal realities that sit side by side, but do not sit well together.

1. Restitution of conjugal rights.

Under Section 9 of the Hindu Marriage Act, 1955, a spouse can approach the court claiming that the other has withdrawn from the marriage without reasonable cause, and seek an order directing them to resume cohabitation.

On paper, it is framed as a tool for reconciliation. In practice, it is the State stepping into an intimate relationship and saying: Go back and live together.

2. The exception to marital rape.

Under Indian Penal Code Section 375 Exception 2, sexual intercourse by a husband with his wife, subject to certain conditions, is not recognized as rape. Which means, legally:

3. The constitutional shift.

After Justice K.S. Puttaswamy v. Union of India, the Supreme Court has firmly placed bodily autonomy, dignity, and decisional privacy at the center of constitutional protection.

And this is where the contradiction becomes impossible to ignore.

Cohabitation Without Consent

The problem is not that RCR explicitly orders sexual relations. Courts have been careful to say it does not. In Saroj Rani v. Sudarshan Kumar Chadha, the Supreme Court upheld RCR on the basis that it promotes reconciliation and does not enforce intercourse.

But that distinction feels increasingly artificial because RCR enforces cohabitation, not consent.

It compels two individuals to resume living together, to re-enter a shared intimate space, usually intimate, without any corresponding legal recognition of a spouse’s right to refuse sexual access within that space.

And in a system where marital rape is not recognized, the proximity is the biggest indicator of forthcoming violence.

The law cannot realistically separate cohabitation from conjugal expectations while simultaneously denying the centrality of consent within marriage.

The Law Knows Separation, Yet Compels Togetherness

There is another layer to this inconsistency that becomes visible when we look at how the law treats marital breakdown in other contexts.

In matters involving custody, protection from domestic violence, or even judicial separation, the legal system recognizes the need to distance individuals from harmful environments. Under the Protection of Women from Domestic Violence Act, 2005, courts are empowered to grant residence orders, protection orders, and ensure that individuals are not forced to remain in spaces where their safety, dignity, or bodily integrity is at risk.

Similarly, in custody disputes, the law prioritizes welfare, safety, and stability over the mere continuation of a marital relationship. But this is where the contradiction becomes difficult to ignore.

On one hand, the law acknowledges that proximity within a marriage can be harmful and that individuals must be protected from coercion, abuse, or violence. On the other hand, through restitution of conjugal rights, it enables a legal mechanism that compels spouses to resume cohabitation--even in relationships where the question of consent may already be fragile or contested.

If the law is willing to separate spouses to protect them from harm in one context, it must also confront the implications of forcing them back together in another, particularly in a system where non-consensual intimacy within marriage is not precluded.

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Consent in an Evolving Reality

As society evolves, so do the ways in which power, influence, and coercion operate within intimate relationships.

This is no longer a conversation limited to visible, physical force.

Advancements in science, medicine, and social understanding have made it increasingly clear that consent is not merely the absence of resistance. It is grooming -- an active, continuous, and voluntary agreement--one that can be compromised not only by force, but also by pressure, manipulation, emotional dependence, or impaired judgment.

This is also why the conversation around consent must remain gender-neutral.

Men, women, and individuals across identities can all find themselves in situations where their autonomy is undermined--not necessarily through overt violence, but through circumstances that make genuine consent difficult, if not impossible.

The law, however, continues to operate within a far narrower understanding.

By focusing on physical force while overlooking the broader realities of how consent can be compromised, it fails to engage with the lived complexity of modern relationships. And when this limited understanding is combined with a legal framework that compels cohabitation, the risk is not just theoretical.

Beyond Gender, Into Structure

It is tempting to reduce this conversation to men versus women. That would be easier, but it would also be incomplete.

Even if RCR is framed as gender-neutral, the deeper issue remains unchanged:

It prioritizes the preservation of marriage over the protection of individual autonomy.

At its core, this is not just a gender issue. It is a conflict between consent and institution.

A Constitutional Question We Can No Longer Avoid

After Puttaswamy, the question is no longer theoretical.

Can the State:

Because if those three positions coexist, the law is not neutral. It is contradictory.

Judicial Reluctance and the Limits of Recognition

Despite growing public discourse and repeated constitutional challenges, Indian law continues to stop short of recognizing marital rape as a criminal offence.

Courts have, at times, acknowledged the importance of dignity, bodily autonomy, and the need to move beyond outdated understandings of marriage. Yet, when it comes to the specific question of criminalizing non-consensual sexual relations within marriage, there remains a visible hesitation.

The exception under Indian Penal Code Section 375 Exception 2 continues to reflect a legal position that treats marriage as a space where consent is presumed in ways it would never be outside it.

This is not to suggest that the judiciary is unaware of the issue. Rather, it reflects the complexity of balancing social realities, legislative intent, and constitutional principles. But that complexity cannot become a permanent justification for inaction.

The question is no longer whether autonomy, dignity, and consent are constitutionally protected. That has already been answered.

The real question is whether those protections extend meaningfully into the institution of marriage.

And until the law is willing to confront that question directly, it will continue to draw a line that is increasingly difficult to justify--one that recognizes harm in principle, but never in practice.

Where This Leaves Us

Restitution of conjugal rights is often defended as a benign attempt to preserve marriage, but that defense ignores the legal ecosystem in which it operates.

In a system where marital rape is not recognized, compelling spouses to resume cohabitation is not a neutral act. It places individuals back into intimate proximity without guaranteeing their right to refuse sexual access.

This is not merely a question of misuse or gender imbalance. It is a deeper legal inconsistency.

One where the law seeks to preserve the institution of marriage, but hesitates to fully protect the autonomy of the individuals within it.

And until that contradiction is addressed, there will continue to be cases where harm is visible, real, and undeniable, yet remains legally invisible.