To the Husband or a stranger, No means No.

Sex is not a taboo in Indian society from ancient times. But, when it comes to modern day social perspectives, it shook the morality of indians in diverse dimensions because of the huge imprints of patriarchy. Our legal system is also not devoid of this reflections.

Recently published National family health survey, points that 1 in 3 women in india suffered spousal abuses either sexually or physically. The form of sexual violence commonly reported is the use of physical force to have sexual intercourse when the wife did not want to (5%). Although this is a form of rape, this was not considered as crime in the law books, so the word Marital rape is deemed to be strange in indian legal system. Another noteworthy figure is that in the cases of sexual violence to a married women, their husband is the perpetrator in 82% of the cases. Such a bad experience to a married women from a stranger is just 0.2%. This clearly shows that Indian women are sexually exploited or raped by their own husband not uncommonly.

From where men earn such an authority.? There are two aspects to answer this question. Firstly, the concept of coverture. It means that upon on marriage, a woman surrendered her agency to her husband, including when it comes to consent for sexual intercourse. Secondly, there is a traditional beleive that the purpose of her womanhood is to please her husband sexually. Even though, both of these ideas are strictly patriarchal, indian family system still uphold such values even today.

Rape is defined in section 375 of Indian penal cide..However, the section rules out marital rape (Exception 2 of Section 375). "Sexual relations or sexual intercourse by a male partner with his own wife could not be considered rape if his wife is not a minor i.e under the age of eighteen." This debarring mainly gives a "husband" a marital authority to engage in consensual or non-consensual sexual acts with his "wife" with legal authorisation. Legal fight against this exclusion had started decades before, and Law commission had also proposed reforms in this regard way back in 2000, but the amendments in this regard were not accepted in the parliamentary panel in 2013. The legislatures, including the then minister Murshid Paradhibhai chaudhary (2015) opined that such an amendment that criminalise marital rape will shook the society since the marriage is treated as a sacrament or sacred in indian society. In 2017, the then Home minister Krishna ray also expressed that the entire family system will be under great stress if marital rape is brought under the law.

As the Parliament couldn't come up with a legal framework to criminalise marital rape, judiciary had come up with some progressive observations and commendable judgment in this regard. In Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018). It explained that "dehumanised treatment of women will not be considered acceptable. By giving judgement on adultery Justice D Y Chandrachud expressed that "the freedom to say NO exists after the marriage as well." In 2021 Kerala highcourt observed that the marital rape is a valid ground for divorce. Recently pronounced verdict on unmarried women's Right to free and safe abortion upto 24 weeks of pregnancy also strictly mentioned about Marital rape. This judgement clearly uphold the right of married and unmarried women to access abortion and included Marital rape under the purview of sexual assault that qualifies a women to subject herself for abortion. Despite the fact that most of the developed countries have criminalised marital rape, India is still one among the 38 countries where a husband can rape his wife without any legal scrutiny.

Marital rape exception violates fundamental rights of a married women is manifestly clear. India should take the steps to criminalise this practice without upholding the patriarchal social values in this modern world. The legal safeguards for a men who may subject to false accusations should be also considered while framing legislations on these issues. So called sanctity of the marriage is only fulfilled when both subjects are absolutely honest to each other. If the victimisation, vengeance, violence, accusations and emotional torture are the things cooked up in the private space of a couple, the role of judiciary and legislature may only be a standing clown, but should try to be Just.