The definition of rape is codified in section 375 of Indian Penal Code that includes all form of sexual assault involving nonconsensual intercourse with woman. However, exception 2 to section 375 states that sexual intercourse by a man with his wife not under age of 15 is not rape, whether it was done with or without her consent. This also means that section 375 does not apply to married women. This is called marital rape where a man can use her force to rape and it is not criminalized. India is one of the thirty six countries that still have not criminalized marital rape.
Violation of article 14 of Indian constitution
Article 14 ensures that the state shall not deny to any person equality before law or equal protection of law within the territory of India. Our constitution guarantees this right but Indian criminal law discriminates against female victims who have been raped by their husbands. At the time when IPC was drafted in 1860 a married woman was considered to be the chattel of her husband but with change in time women are becoming smarter than men and they do deserve equal opportunities as men have. Exception 2 of article 375 directly implies to rape and that is too accepted by our law which is disgusting.
Violation of article 21
Exception 2 is also a violation of article 21 of the Indian constitution. Article 21 states that no personal shall be deprived of his personal life and liberty according to procedure established by law. Forced sexual cohabitation is violation of fundamental rights. Our society is stuck between old customs and narrow mindset. They believe that giving more liberty to women is against Indian culture which is not right. This society believes that once a woman is married then her implied consent for sexual intercourse is always present.
The above conclusions clearly depict that expection2 of section 375 of IPC is an infringement of articles 14 and 21 of the constitution.
Whether Martial Rape constitutionally valid or not?India is one of 36 countries that still not criminalized marital rape and this exception 2 where woman is brutally raped by her husband whether her consent is there or not proves the inconvience in delivering justice by Indian law. This expectation proves to be very harsh for married women as she also has the right to equality like men. But the Supreme Court issued a landmark judgment in Independent Thought vs. Union of India 2017 which narrows the scope of marital rape. In the judgment it was stated to retain the age of 15 years under exception2 of section 375 and 46%of women between the ages of 18-29 years were married before the age of 18. Hence, criminalizing this concept would not be appropriate and practical. Thus, the age prescribed in exception 2 has been retained considering the facts and issue.