Rape is a heinous act of sexual intercourse against any person's will. As per Section 375 of the Indian Penal Code, 1860[16], and Section 63 of the Bharatiya Nyaya Sanhita, 2023[17], rape is an act defined as the penetration in a woman's vagina; mouth; uthera; or anus; or the insertion

The position of women in a patriarchal society remains a mystery. Marriage is a sacred practice in India. As rightly observed by a British Jurist, Matthew Hale: "Marriage was a legal contract by which a woman 'gave herself' to her husband for life. This implies that there is a vague notion in the institution of marriage that diminishes the sexual autonomy of a woman, as it is considered that the woman has surrendered herself to her husband[18]. This makes it clear that, firstly, Marital rape is a distressing and pervasive form of intimate violence inflicted on a person when in a marriage, one spouse forces the other into engaging in sexual acts without their explicit and voluntary consent within the bounds of a marital relationship2. Secondly, since time immemorial, the women in a marriage have been treated as tangible property of their husbands, resulting in significant physical and emotional consequences on the victim. It is a serious violation of a person's bodily autonomy and dignity, as 'rape' within the bounds of marriage is a notion that can fret any woman to the very core. Over the years, numerous laws have been enacted to combat violence committed against women in India, such as dowry, domestic violence, crime with respect to pregnancy, but marital rape remains a notable exception. It is a very underreported crime in the country. Even though the State is aware of the detrimental outcome of any type of non-consensual sexual act, the Government has conveniently neglected the gravity of marital rape by keeping it outside the purview of criminal Law.

Rape is a heinous act of sexual intercourse against any person's will. As per Section 375 of the Indian Penal Code, 1860, and Section 63 of the Bharatiya Nyaya Sanhita, 2023[19], rape is an act defined as the penetration in a woman's vagina; mouth; uthera; or anus; or the insertion of any object, by a man, under various conditions: without consent; obtained through fear, deception, or coercion, or when the woman is incapacitated or underage, or when she cannot communicate her consent or has given her consent due to undue influence or misrepresentation to a man against her will and without her free consent. The definition of rape is consistent across various criminal law provisions in India. However, this definition shifts when a woman enters into a marital relationship. In this context, what is legally recognized as a cognizable offense transforms into a perceived right for the husband, and the wife is expected to comply, even if she does not consent. This change highlights a significant discrepancy in how marital rape is perceived and addressed, reflecting broader issues of gender inequality and ignorance of consent within the legal frameworks. Thus, marital status can alter the legal understanding and treatment of rape, effectively diminishing the woman's autonomy and rights.

When discussing the offense of marital rape, it is crucial to refer to the case of Phulmani, which is like the famous case of Queen Empress vs. Hurry Mohun Mythee6. This was the first case to acknowledge marital rape as a crime against women. In 1890, an eleven-year- old girl named Phulmani was killed by her twenty-nine-year-old husband, who forcefully had sexual intercourse with her. As per the Hindu norms, a man has the authority to have sexual intercourse after their child's wives attained puberty, and the colonial Law only penalized the husband for marital rape when the child's wife was below ten. Since the victim was above the age of 11, her husband was not accused of committing marital rape and murder. This made the Colonial Government raise the age of consent for the marriage of girls from ten to twelve. This case also raised the question of whether families and communities had the right to inflict pain on women in the name of religion and cultural norms. These 19th-century cases laid the groundwork for subsequent discussions and legal reforms concerning child marriages in 20th- century India[20].

In 1984, in the case of Harminder Kaur vs. Harmander Singh,[21] the Delhi High Court held that the Constitution of India could not intervene in household matters as it would destroy the institution of marriage[22]. As per the Delhi High Court's judgment, Article 21 of the Constitution defines the 'Right to Life and Personal Liberty10, 'and Article 14 of the Constitution of India states that 'the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India 11' will not address the challenges related to household affairs and marital relations.

Furthermore, the Court emphasized the Hindu Marriage Act of 1955, which defines marriage as a solemn and sacred relationship, and how the interference caused by the Constitution or any other provision of Law will adversely impact the sanctity and rights of married individuals. On the other hand, in the case of the State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar[23], the Supreme Court asserted that every woman possesses an inherent right to privacy, which must be safeguarded from infringement. Similarly, in Shri Bodhisattwa Gautam vs. Ms. Subhra Chakraborty[24], the Court ruled that rape constitutes a violation of Article 21 of the Indian Constitution, as it undermines fundamental human rights and infringes upon the victim's right to life and dignity. These rulings indicate the critical importance of criminalizing marital rape, as doing so is essential for protecting women's privacy and ensuring their fundamental rights to personal security and dignity[25].

The Gujarat High Court reviewed the stance on sexual offenses in a recent ruling in Nimesh Bhai Bharatbhai Desai v. State of Gujarat[26] and pointed out that husbands must be reminded that their wives are not objects to be utilized. Furthermore, it was said that a man's marriage does not grant him the authority to rape his wife. Marriage does not make a man the proprietor of his wife, nor does it make the wife an object of possession. She does not forfeit her basic right to autonomy and physical privacy when she consents to marriage. For women, particularly Indian women, sexual privacy is sacred, and it is against the law to deny them it. She always has the freedom to withdraw her consent to have sexual intercourse whenever she chooses. There is no irrevocability that is attached to her consent. She is empowered to change her mind and use her body however she pleases[27].

Consent is the central component in the legal definition of rape. In India, the interpretation and application of consent within rape laws have evolved strikingly over time. The present- day status of consent jurisprudence in Indian rape law reflects a contemporary debate between legal principles, judicial interpretation, and societal attitudes. Before the amendment of Criminal Law Act in 2013, there was no explicit definition of ‘Consent’ in rape law. As per Section 90[28] of the Indian Penal Code, 1860 and Section 28 of Bharatiya Nyaya Sanhita, 2023[29], valid consent in general terms refers to the expression of willingness to do something which is not influenced by fear of injury, a misconception of fact, or undue influence.

One example of a nation that has taken important action to combat marital rape is Sweden. Sweden was the first nation in the world to make marital rape a crime in 1965. Regardless of a couple's marital status, the Swedish legal system acknowledges that having sex without both parties' express consent is rape. This method rejects the idea that marriage automatically entails agreement to sexual behavior while acknowledging the significance of consent. The first laws against marital rape were passed in Norway in 197125, making it a relatively early crime. The Norwegian legal system acknowledges that non-consensual sexual actions, including between spouses, can qualify as rape and places a strong emphasis on the value of consent in marriage.

In 1991, the Sexual Offences Act[31] was introduced in the United Kingdom, making marital rape a crime. The law recognized that consent must be freely given within marriages and specifically eliminated the marital exemption. The UK framework lays the onus of ensuring consent is always present on individuals, acknowledging its importance as a fundamental component of sexual relationships. Although marital rape is illegal in some jurisdictions, it may be subject to different legal requirements or standards than other types of rape. These differences may affect survivors' rights and the simplicity of prosecution. Exemplary procedures and areas where legal reforms might be reinforced to give survivors more robust protection are identified through comparative analysis.

While some nations have made marital rape a crime, others are still coming to terms with the problem. Some nations' legal systems may still have limitations for married couples or may not have clear laws that make marital rape a crime. A critical evaluation of these countries is made possible by comparative analysis, which also serves as a foundation for arguing for legislative changes that would safeguard survivors and advance gender equality.

Comprehensive legal reforms, survivor support programs, and awareness efforts to dispel prejudices and social norms are all recommended under CEDAW. Understanding various legal systems, societal views, and responses to marital rape can be achieved by comparing global perspectives. It makes it easier to find the gaps, difficulties, and best practices that can guide the creation of comprehensive support networks for survivors as well as legal reforms. Addressing marital rape requires a comparative analysis and an international viewpoint. Because they understand the importance of consent in marriage, countries like Sweden, Norway, and the UK have made marital rape a crime. Comparative analysis reveals differences in survivor support networks, evidence standards, and legal strategies. International agreements like CEDAW offer direction and demand all-encompassing work.

India is required by Article 2(f) to protect women's rights regardless of marital status even though it has not ratified the optional protocol of CEDAW. State parties are required to take particular steps to end discrimination against women under Article 2 Clause (f) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This includes taking all required steps to change or erase any laws, rules, norms, or practices that support discrimination against women, including passing new legislation or revising current ones. In simpler terms, it requires Government to actively review and alter any laws or cultural practices that discriminate against or disadvantage women[32].

A comprehensive strategy including judicial activism, legislative reforms, and public awareness initiatives must be implemented to address marital rape. Regulations might provide victims legal recourse and protection by outlawing marital immunity clauses, making non-consensual sexual activities illegal, and guaranteeing that age-of-consent statutes are applied consistently. Legal alternatives for resolving marital rape are further strengthened by judicial interpretation of fundamental provisions, such as the right to bodily autonomy. Campaigns for social awareness are also essential in promoting a culture of respect for women's rights and opposing practices that allow offenders to go free. Through collective action, we can create a safer and more equitable society where all individuals, regardless of gender or marital status, are protected from sexual violence within relationships.

The several legal and societal obstacles to the MRE's removal from the Indian Penal Code are discussed in this article.  Although there is still uncertainty regarding the achievement of the ultimate goal of establishing an egalitarian social structure free from the shackles of stifling patriarchy, there is value in recognizing the expressive role of the law.

It would be naïve to assume that formal legal changes would be enough to bring about social change that eliminates historical prejudices and opens the door for gender equality. According to the Verma Committee, the effectiveness of the law would continue to be questioned until there are corresponding changes in attitude. However, judgment cannot be used when the matter involves the flagrant transgression of the most fundamental human values. Although a more compassionate and equal society would be better achieved through endogenous social transformation, half of the population's lives and liberties cannot be left up to the whims of chance in the meantime.