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Should India move from “No Means No” to “Only Yes Means Yes”? What does consent really mean under Indian law?

Under India’s new criminal law, the Bharatiya Nyaya Sanhita (BNS), rape law in India is defined under Section 63 — but with a marital rape exception. If a husband has non-consensual sex with his wife who is 18 years or older, it is not classified as rape under current law.

This is the exception challenged by Opposition MP Shashi Tharoor through a Private Member’s Bill (PMB), arguing that marital rape should be criminalised. His note states that this exception treats marriage as permanent consent, an idea rooted in patriarchal legal thinking.

The bill cites NFHS-5 data, showing that 83% of married women who experienced sexual violence named their current husband as the perpetrator — highlighting that intimate partner sexual violence is primarily a marital issue. It also refers to CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), an international human rights treaty India has signed, which calls on countries to recognise marital rape as a crime. Today, 75+ countries have already criminalised it.

The Government of India has historically opposed criminalising marital rape, citing concerns about the institution of marriage, misuse of rape laws (often cited around 8%), and the existence of other legal remedies like domestic violence laws.

Since this is a Private Member’s Bill introduced in Parliament, its chances of becoming law remain low unless the central government adopts it. Still, PMBs play a crucial role in shaping public policy debate and constitutional discussions.

What do you think — should marriage change the definition of consent under criminal law?
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