A man is a man; an act is an act; rape is a rape; be it performed by a man "husband" on the woman "wife"

Marital rape is still not considered a heinous crime in countless countries, leaving countless victims without justice. Giving a free consent does not equate to the fact that the husband can rape his wife or do sexual assault without her consent. The belief that marriage is a sacred institution raises serious concerns regarding individual autonomy and consent. When rights of woman's are undermined just because she is the wife this is opposite to the idea of justice. Rape by definition involves sexual assault without consent.

Globally still several countries do not recognise marital rape as a heinous crime highlighting, the urgent need for legal reforms that upholds woman's right. The arguments against criminalizing marital rape is a concept which has its roots from the colonial era and those asking for changes believe that the reformist support colonial ideologies. Due to this contradiction, it becomes almost impossible for the legislatures to make a new legislation or bring an amendment.

Legal status of marital rape in India

In the Indian legal framework, the understanding of marital rape primarily depends upon judicial interpretation as there is no specific legislation governing it. However, section 375 of IPC which defines rape with exception 2 saying that "sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape."

The hon'ble apex court in the landmark case of Independent Thought v. Union of India & Anr. (2017) where the supreme court struck down section 375 exception 2 of IPC to the extent that it granted immunization to the husband for having a non-consensual intercourse with their wife, aged between 15 to 18. The court held that the provisions were arbitrary, mercurial and inconsistent with the girl rights provided to them in article number 14, 15 and 21 of Indian constitution and it was also contradictory to the POCSO act. Recognizing these consistencies the court amended the exception 2 of section 375 of IPC for better legal protection of minor girls and now it says that:
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape."

Recently in the case of Gorakhnth Sharma v. State of Chhattisgarh, the hon'ble high court of Chattisgarh acquitted an individual accused of engaging in unnatural sex with his wife. The court held that, according to exception 2 of section 375 of IPC, sexual intercourse or sexual acts between husband and his wife does not constitute rape provided that wife is not below the age of 18. Consequently, the court reasoned that if such acts do not constitute rape under section 375 then any unnatural sexual intercourse done as per section 377 of IPC will not be treated as an offense in the case of marital relationship. Therefore, the court found a repugnancy between the two section which were self- contradicting in nature among themselves.

In various cases where the apex court like The Chairman, Railway Board v. Chandrima Das and Bodhisattwa Gautam v. Subhra Chakraborty has recognised that rape is not only an offense but a grave crime which affects society at large. It violated a woman's rights, demeans her dignity and deep humiliation.

In the absence of any legal recognition for marital rape it is contradictory to the personal rights of woman. The Constitution of India guarantees fundamental rights to all citizen of India, providing equality and protection under the law. The principle of constitutionalism asserts that it doesn't matter that justice should always be done but justice when done it should be visible. Marriage doesn't gives the license to husbands to violate her wife's bodily autonomy and the legal system should acknowledge this and come with a legislation.

The most crucial aspect in this context is the article 21 of Indian constitution which gives the citizens right to life and privacy. It forms the most basic and fundamental right. In the case of Kharak Singh v. State of U.P where the court said that right to life also includes to live alone and free from any intrusion. Sexual autonomy is an integral part of article 21. However, marital rape is contradictory to the protection provided by the constitution of India.

Why marital rape should be criminalised?

In a significant case related to marital rape, Karnataka high court held that institution of marriage doesn't gives a license to act without restraint. Any act going against constitution or is heinous in nature should be criminalised. In a considered view a man should be punished after committing rape albeit it being a man or a husband. Acting like a beast and raping your own wife cannot be considered an act of humanity and should be severely punished.

Marital rape goes unnoticed many a times because of many factors including that the wife got sacred or a phycological trauma, societal pressure or maybe any other reason. By what authority the husband does non-consensual sexual activities with his partner. The constitution does not empower anyone to exceed their limits to commit such an offense. However, woman in this case is on a backseat because some argue that wife being in a marriage relationship implies automatic consent for sexual activities. However, this notion is neither just nor lawful, as consent should always be mutual regardless of marital status.

Even though the Constitution provides that men and women have equal rights, Exception 2 Of Section 375 of IPC is inconsistent with that Principle. This clause, which carves out an exemption for marital rape and thereby deems it not a crime, is a colonial hangover, untouched for a century. It upholds the regressive, archaic belief that husbands have the right to unregulated access to their wives and that right extends to any form of violence — a principle that has no place in a modern society where all people are protected by fundamental rights against violence and injustice.

Amendments in the Indian Penal Code, which came into effect in 1860, have been few and far between on this matter and newer-enacted laws too fail to include marital rape as a crime. This legal lapse ignores a woman's right to control her body and her dignity in marriage." It is imperative that the law evolves to align with contemporary constitutional values and recognizes marital rape as a punishable offense, ensuring justice and equality for all.

If the prima facie role of Indian constitution is to provide equality then how IPC can do in justice by treating mans and woman's differently. Is it not violation of article 14 of Indian constitution.
Global perspective for marital rape

It was, however, Poland that was the pioneer in the area of criminalizing marital rape. Australia followed suit since the common law country's feminist movement of 1976 responded by making efforts to criminalize marital rape. The United States of America followed with the precedent set by the New York Court of Appeals stripping off the customary exemption from the crime of rape when committed by the husband against the wife happening in 1984 and all 50 states followed suit in criminalization.

International conventions have also addressed the issue. India has been advised to make marital rape a criminal offense, but more than a decade later, the recommendation from the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) remains unheeded. Indeed, General Recommendation 19 highlights discrimination against women, whether in relation to their mental health or when exposed to sexual harm, while General Recommendation 35 emphasizes that marital rape violates the principle of free consent, and is based on coercion.

India's failure to criminalize marital rape further violates Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which enables every citizen to be treated equally without discrimination based on sex or marital status. Additionally, the Exception 2 to Section 375 of the IPC is discriminatory in violation of Article 1 of the Universal Declaration of Human Rights (UDHR) which provides that all human beings are born free and equal in dignity and rights.

Conclusion
The continued issue of marital rape is a stark reminder of how far behind legal systems can be in the protection of fundamental human rights. The persistent exclusion of marital rape from the realm of criminal culpability is at odds with the ideals of equality, dignity and physical autonomy articulated in the Indian Constitution and international human rights treaties. After the marriage, a husband's rights over his wife as equal partner in lifelong support decreases will fully; it is injurious to gender equality and old-fashioned thinking to think a husband can have an unending tenancy on his wife's body.

Many court orders and international reforms demonstrate the necessity of criminalizing marital rape, delivering justice to survivors and safeguarding women's fundamental rights. In line with contemporary constitutional principles, legal reforms on marital rape in India and elsewhere must reinforce the concept that consent is a requirement in all relationships, including marriage, and not a privilege. Societies cannot authentically promise justice until such formal legitimacy is achieved.