Sec.

375 of Indian Penal Code, define the term Rape, which provides that, to
constitute the offence of rape the essentials are required which are,

(i) Sexual intercourse must be left with a woman by a man, as understood in the
term of section 375 (a) to (d).

(ii) Such sexual intercourse must tall under any of seven circumstances,
(a) Against her will;
(b) Without her consent;
(c) With consent obtained under fear of death or hurt;
(d) Consent is given under a misconception of fact that the man is her husband;
(e) Consent is given because of unsoundness of mind, intoxication or under influence
of any stupefying or unwholesome substance;
(f) With a woman under eighteen year of age, with or without her consent
(g) With a woman who is unable to communicate her consent.

But aforesaid essentials for rape are having some exception also.

Such exceptions are;

i. If a woman who does not physically resist for penetration, by this reason it shall
not be regarded as the Sexual Activity.
ii. A medical procedure or intervention shall not shape an offence of rape.
iii. Sexual intercourse or sexual act by a man with his wife, the wife not being under
15 year of age is not rape.

The third exception is known as Marital rape". And this exception of section 375,
articulates that non-consensual sexual intercourse by the husband with his wife, if
the wife is under the age of 15 years, then only intercourse praise as rape.

Mean if the wife is over the age of 15 yr than it would not be rape. By reading the
Exception-2 with 7 circumstances, then the exception will prevail off. It means that if
the wife is over 15 years then her consent or will become immaterial.

For this Prof. PSA Pillai wrote, in his book, Criminal Law I would code, if, thus, keep
outside the ambit of rape a coercive and non-consensual sexual intercourse by a
husband with his wife and thereby allows a husband to exercise, with impunity, his
marital right of (non-consensual or undesired) intercourse with his wife.

Further, he added that" It is believed that the husband's immunity for material rape
is premised on the assumption that a woman, on marriage, gives forever her consent
to the husband on the assumption that a woman, on marriage, gives forever her
consent to the husband for sexual intercourse. Her husband has the right to have
sexual intercourse with her, whether she is willing or not, and she is under obligation
to surrender or submit to his will and desire.

As he pointed that husband was right to have sexual intercourse with her even
without her will or consent. This comment is too harsh on married women. I think by
the time when Prof. Pillai pointed this he forgot that this provision is of penal code
which has access only in India. And this a country, where women got worship like a
goddess. And in this modern era where every nation is recognizing the sexual
autonomy of women, we must have he came forward to offend the self-esteem and
dignity of women.
In the case of State of Karnataka v. krishnappa[1], where it was held
that sexual violence apart from being a dehumanizing act is an unlawful
intrusion of the right to privacy and sanctity of a female. It is a serious
blow to her supreme honour & offends her self-esteem &dignity it degrades
and humiliates the victims.

Even in case of Independent though v. Union of India[2], Justice Deepak Gupta

held that can she be deprived of her right to say yes or no to having sex with having
her husband, even if he has consented for the marriage? In my view, there is only
one answer to this and the answer must be a resounding NO.

It is also held in this case that, Constitutionally a female has equal as a male
and no statute be interpreted or understood to derogate from this position.
If there is some theory that propounds such an unconstitutional myth, then
that theory deserves to be completely demolished.

In the case of Sakshi v. Union of India[3], the Supreme Court had to concede the
inadequacies with concerning law relating to rape and had suggested that the
legislature should bring about changes in the law. After passing the Criminal law
amendment bill, 2013 rape was reformulated as the most specific event where the
House of People by an amendment tried to enlarged to the ambit of rape and the
perception by making oral and anal act as amounting rape.

The Domestic violence Act 2005, has to dispense numerous civil remedies and
various providers such as the cruelty and other matter are dealt under. The number
of victims under the marital rape scenario is being increased but the legislature is
ignorant to criminalize such an offence.

The women are ignorant of what the actual scenario is and the law which are
prevailing in the Indian Penal Code for them. Moreover in case of Sichita
Srivastava v. Chandigarh Administration, where it was held that the right to
make a reproductive choice was equated with personal liberty under Article 21 of the
Constitution, privacy, dignity and bodily integrity and includes the right to abstain
from procreating.

Further, paragraph 22 of the J. Verma Committee Report, it was held there is no

doubt that a womens right to made reproductive choice is also a dimension of
personal liberty as understood. Under Article 21 of the Constitution Of India, it is
important to recognize that reproductive choices can be exercised to procreate as
well as to abstain from procreating. This view expressed by J. Verma was that
Marriage is in modern times regarded as a partnership of equal & no longer one in
which the wife must be the subservient chattel of the husband.

I also like to add that Article 21 gives every person right to like of dignity the right of
a woman to maintain her bodily integrity is effectively destroyed as her husband
effectively has fall control over her body and can subject her to sexual intercourse
without her consent or without her willingness since such an activity would not be
rape. Anomalously, though her husband can rape her he cannot molest her for if he
does so he could be punished under the provision of the Indian Penal Code.
This was recognized by the law commission of India in its 172nd Report but was not
commented upon. However, this particular provision also infringes the fundamental
rights of women. In Independent thought v. Union Of India held that the execution
craved out in India Penal Code creates on an unnecessary and artificial distinction
between married women and unmarried women has no rational nexus with any
unclear objection sought to be achieved. The artificial distinction is arbitrary and
discriminatory and is not in the best interest of the women.

The Exception-2 of section 375 violates of Article of the constitution. Even, in the
case of Sri Mahedab Jiew v. Dr B.B. Sen[4], the Calcutta High Court, observed,
The Special provision for women in Article 15(3) cannot be construed as authority a
discriminatory against women and the word "for" in the context means "in favour of".
Thus, Section 375 is not protected by Article 15(3) of the Constitution as a special
provision for women because it discriminates against the women. Henceforth, Sec.
375 of Indian Penal Code infringed article 14,15 and 21 of the Constitution of India.

However, we would not the 1st nations who make it criminalized. In the United
Kingdom, Rv.R (1991)[5], House of the lord, heard the case and changed the law to
the degree that it deduces that under U.K law a man could rape his wife. The court
ruled that "ever within a marriage any non-consensual sexual activity is rape.

Now in U.K., Sexual offence Act 2003, it enunciates that, the offence occurs when an
individual commits a sexual act without the consent of their Spouse or their ex-
spouse, on against their will. If someone is unable to consent is obtained by force,
threat or intimidated the sexual act is committed without consent. And along with by
the time 1993 marital rape was a crime in all 50 states. So, then we must take the
steps because the country where we secure and protect the rights of people of the
state and secure everyone that we shall take cognizance on the violation of anyone
right. Otherwise this we will be injustice with all women in society.

In Modern time, where patriarchy and gender inequality is almost too striking it
down, by providing this right to our respectable household, or all working women,
who make their nation, family proud on them. We should thank them by proving
their right and by abolishing the exception-2 of Section of Indian Penal Code.

Conclusion
For striking out the patriarchy and gender inequality Justice Chandrachud said in the
case, Joshep shine v. Union of India (2018), he wrote

The boundaries of that space are defined by what women should or should not be. A
society which perceives women as pare and an embodiment of virtue attack to rape,
honour killing, sex-determination and infanticide".

He wanted to say that society expected women to be mute spectators too, and even
accepts "egregious discrimination" at home, and that "anachronistic conceptions of
chastity' and honour' have dictated the social and cultural lines of women, depriving
them of the guarantees of dignity and privacy, contained in the constitution."

The notion that women, who are equally entitled to the protections of the
constitution as their male Counterparts may be treated as an object
capable of being possessed, in an exercise of subjugation and inflicting
indignity.
Henceforth, in the light of the above observation, it can be concluded that exception-
2 of Section 375 is constitutionally invalid and it shall be struck down.