Marriage is a religious ceremony and it means that any sexual act within wedlock is not wrong and is legal. The definition of rape remains equivalent, i.e. sexual intercourse or sexual penetration once there's a lack of consent. So, an essential ingredient to prove the crime of rape is to prove the lack of consent. This burden to prove the lack of consent usually rests on the victim. In some instances, as in the case of minors, likely, consent doesn't exist as they're expected by law to be incapable of willing to such sexual acts. On the opposite hand, there are also instances were consent is likely to exist and often, this presumption exists once the victim and the culprit are married.

In such instances, the thought of marital rape becomes hostile. India is one of the 36 countries that also haven't criminalized marital rape. In many jurisdictions across the planet, marital rape isn't recognised as a crime by law and society. Even when countries recognise rape as a criminal offence and prescribe penalties for the equivalent, they exempt the appliance of that law when a marital relationship exists between victim and culprit, often referred to as the marital rape exception clause. The law in India doesn't criminalize matrimonial rape. The Indian Penal Code, 1860 doesn't acknowledge that as a criminal offence for a husband to rape his wife.

It's an aspect of marriage that is not being taken care of by the existing laws. Women have been given the right to protection, but her husband who she married with full belief, tries to harm and torture her by having forceful sex without her consent. Rape within marriage could be an idea that agonizes the wife to the core. Rape can be viewed as an act of violence against a woman, to outrage her modesty by all means. The Supreme Court of India has described it as a shame and therefore the gravest crime against human dignity. Rape isn't just a physical assault but is the destruction of the full persona of the victim. In light of this, the idea that a woman has to have sex with her husband regardless of her consent is unacceptable to a civilized society.

Judicial Stand:
Looking at some cases and also the history of judgment on the intense injury by the husband on the wife. Within the case of Queen Empress v. Haree Mythee [1] it was determined that within the case of a marriage, the law of marital rape doesn't apply between husband and wife after the age of fifteen years [2]. In this case, the husband was guilty under section 338 of the Indian Penal Code, 1860 for rupturing the vagina of his eleven years old wife inflicting an injury resulting in her death.

In R v. R [3], which was an English criminal code case it was commanded that it's a criminal offence for a husband to rape his wife. Both the Court of Appeal and also the House of Lords upheld the rape conviction declaring that marital rape exemption doesn't exist in English law [4]. R bust into his wife's parents' house whereas they were out and made her do sexual activity with him without her consent. He was arrested with the charge of rape under section 1(1) of The Sexual Offences Act, 1976. In Emperor v. Shahu Mehrab [5], the husband was guilty below section 304A of The Indian Penal Code for inflicting the death of his minor wife by rash and negligence act of sexual activity along with her.

In Saretha v. T. Venkata Subbaih [6], the Andhra Pradesh High Court held that there can be no doubt that a decree of restitution of conjugal right enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person [7].

In State of Maharashtra v. Madhukar Narayan Mardikar [8], the Supreme Court referred to as the right to privacy over one's body. It was set that a prostitute has the right to refuse sexual activity. All stranger rapes are criminalized and every female, aside from wives, are given the right of privacy over their bodies thereby envisaging the right to withhold consent and refuse sexual intercourse. The difficulty is that it's been accepted that matrimony is sacred. Instead of, making the wife worships the husband�s every need, particularly sexual, it's supposed to flourish, mutual respect and trust. It�s far more traumatic being a victim of rape by somebody familiar, a friend, and worse to have to cohabit with him.

Justification for Marital Rape not being a crime in India:

A rigid patriarchal society that suppresses women's voice and culture where marriage is the building block of the society. The former Chief Justice of India Dipak Misra said that marital rape should not be a crime because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.[9] The social traditions and values create such an environment where matrimonial rape cannot be criminalized. The Indian government suggested that those seeking to stop women from being raped by their husbands were blindly following the Western countries.

The idea that once a woman is married, she hands over continuous sexual consent to her husband is deeply embedded in our society. Matthew Hale of England had declared that the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given her up in this kind unto her husband which she cannot retract [10]. In an affidavit submitted to the Delhi High Court, the union government said a law criminalizing marital rape can become an easy tool to harass the husbands, absurdly arguing if all sexual acts between a husband and his own wife qualify to be marital rape then the judgment whether it is marital rape or not will singularly rest with the wife [11].

This argument that women will falsely accuse their own husbands has been used multiple times and even if they do judiciary is there to help. The only argument or justification that is valid is that marital rape is a heinous crime and violently oppressive. Indian constitution guarantees equality but the marital rape law discriminates against a woman who is being raped by their own husband which is definitely unconstitutional.

Conclusion:
The Indian law has clearly failed to provide proper protection to women as they are still being treated as property of the husband and he has all the rights to utilise her. The topic of marital rape is crucial in establishing equality for married women. We have analysed the validity of the arguments which are backed with the concept of family, marriage, and the role of women in society. We also established how all the justification for the criminalisation of marital rape has no legal standing. Several jurisdictions around the world have recognised marital rape as an offence and they are breaking the hold of the ancient tradition. Even the Supreme Court of Nepal has ruled that forced sexual intercourse within a marriage constitutes marital rape.

Unfortunately, India is lagging behind. There is nothing to believe that marital rape doesn�t happen in Indian families. It is prevalent in every city, every township, and every village of India. The only difference is that we have turned an unsighted eye to the issue. The time is mellow for the Indian Legislature to wake up from its years of dormancy and make amendments to the Indian Penal Code.

Reference:

1. (1891) ILR 18 Cal 49
2. http://aegaeum.com/gallery/agm.j-3247.41-f.pdf
3. [1992] 1 AC 599
4. https://en.wikipedia.org/wiki/R_v_R
5. AIR 1917 Sind 42
6. AIR 1983 AP 356
7. https://www.legallyindia.com/blogs/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-decision#:~:text=Justice%20Choudary%20held%20that%20%E2%80%9Ca,at%20the%20heart%20of%20the/
8. AIR 1991 SC 207
9. https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-misra/articleshow/68785604.cms
10. https://indianexpress.com/article/explained/marital-rape-a-crime-in-many-countries-an-exception-in-many-more-4821403/
11. https://theswaddle.com/marital-rape-inda-decriminalized-crime/
    
    
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