There is a shloka in Sanskrit from Manusmriti which reads as "Pita Rakshati Kaumarye, Pati Rakshati Yauvane,… Na Stree Swatantryam Arhati", which when translated into English means, 'Father protects the girl when she is a kid, Husband when she is young,… women is not fit for independence'. It shows how a woman has been always subjected to be a property of a man. Marital Rape can be considered to be product of such patriarchal mentality of the society. It is considered as a form of domestic violence and sexual abuse.

Imagine a world where a woman, once she is married, loses the right to say "no" to sex. Her body becomes an assumed space for her husband's desires, and she cannot legally challenge that assumption. For many years, this was the reality for countless women in India.

In a society shaped by deeply entrenched patriarchy, the idea that a woman could be raped by her husband was almost unthinkable. The concept of marital rape was not just ignored—it was seen as impossibility. But this view is now being challenged, slowly but surely, thanks to years of tireless activism, legal battles, and growing awareness of women's rights.

Types of marital rape

Following are some of the types of marital rape:

1. Battering Rape- In Battering Rape, women experience both sexual violence in relationship in various ways. The majority of marital rape victims fall under this category.
2. Force Rape- In force rape, husband only use the amount necessary to coerce their wives. Battering may not be a characteristic of these relationships. The assaults are often typical after denial by wife.
3. Obsessive Rape- Some women experience what has been labeled as sadistic or obsessive rape. These assaults involve often physically violent.

History
Marital rape has deepest history in Indian Culture. Pishacha Marriage, which is type of marriage in Hinduism where a man rapes a women who is asleep. It is regarded to be a marriage to preserve the honor of the women.
During British colonial rule in India, when the Indian Penal Code (IPC) was first enacted in 1860. Under the IPC, rape was criminalized—but with one glaring exception.

The law stated that a man could not be charged with raping his wife, provided she was over the age of 15. This legal loophole reflected the belief at the time that a husband had an inherent right to sexual access to his wife, regardless of her will.
This exception stood for more than a century, even after India's independence in 1947.

The Indian Constitution promised equality for all citizens, including women, with Articles like:

• Article 14: Right to Equality
• Article 15: Prohibition of discrimination based on sex
• Article 21: Right to life and personal liberty

But the gap between these promises and the lived reality for many women—especially married women—was vast. While the Constitution enshrined rights to equality and dignity, the legal system still treated a wife's consent in marriage as irrelevant when it came to sexual relations.

Recent Perspectives
In the 1980s, when feminist movements began gaining momentum, women's rights activists started challenging the idea that a husband's sexual rights trumped his wife's autonomy. The 1983 Criminal Law Amendment Act did expand the definition of rape in India, but the exception for husbands remained intact. The law still did not recognize that sexual violence could occur within marriage.

In this period, constitutional provisions such as Article 14 (equality before the law) and Article 21 (right to life and personal liberty) were invoked to question the very notion that marriage could provide a man the right to sex without consent. However, despite the legal arguments, the issue remained unresolved.

Legal Perspective
As time went on, a series of cases of the Courts in India brought marital rape into public consciousness. One of the most notable cases was the Laxmi v. Union of India (2006) case, in which the Delhi High Court ruled that a woman should be able to seek protection from her husband in cases of domestic violence. While not directly about marital rape, the case was instrumental in affirming that the right to a life free from violence applied to women in marriage as well.

Then the Justice Verma Committee Report was published in 2013, following the tragic Nirbhaya rape case. This report made several recommendations to improve women's safety, including criminalizing marital rape. It argued that Article 21 (right to life and personal liberty) should protect women from sexual violence, even within the confines of marriage.

But despite these calls for reform, India's government hesitated to take action, and marital rape was not criminalized.

In 2017, the Supreme Court of India, in Independent Thought v/s Union of India heard a petition seeking to declare the exception in the IPC's rape definition unconstitutional. The petition argued that under Article 21 (right to life with dignity), women should be free from sexual violence, even within marriage. But the Court was divided and did not take a firm stand, leaving the issue open-ended. This decision exemplified the ongoing struggle between legal reform and deep-rooted cultural traditions.

In RTI Foundation v/s Union of India, a series of petition demanding the need to criminalize marital rape, is currently being heard by the Hon'ble Supreme Court. Previously, in the same matter in 2022, Delhi High Court delivered split verdict which was, at the same time, in favor and against of criminalizing marital rape.

International Perspective
In stark contrast to India's legal framework, many countries have made significant strides in addressing marital rape. In countries like the United States, Canada, and much of Europe, marital rape has been criminalized for decades. International law, through frameworks such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), urges countries to recognize and address marital rape as a violation of women's rights.

For example, in the United Kingdom, marital rape was criminalized in 1991 with the case of R v. R, where the House of Lords ruled that a husband could be charged with raping his wife. This was a landmark moment, affirming that consent within marriage is just as critical as outside of it.

India, by contrast, has yet to criminalize marital rape. Activists often point out that Article 14 (equality) and Article 21 (personal liberty) are being violated by not recognizing the concept of marital rape. They argue that marriage cannot, and should not, be used as a shield to justify sexual violence.

Arguments in Favor of Criminalizing Marital Rape

• Gender Equality: In an equal world, both partners in a marriage should have the same rights. Right now, the law assumes that husbands can demand sex from their wives. Criminalizing marital rape says women are equals in marriage, and that their bodies are their own. It's about making sure women don't lose their right to say "no" just because they're married.
   
• The Constitution Supports It: Our Constitution guarantees us things like equality and personal liberty. If the law protects us from violence outside of marriage, why should it be any different when it comes to marriage? If we're serious about those promises, we need to make sure a woman's dignity is protected in every situation—even at home.
   
• Changing the Culture: Criminalizing marital rape isn't just a legal issue—it's about changing how we think about marriage. It sends a message that respect and consent should be part of every relationship. Many countries have already made this change, and it's time India caught up with that. It's a step toward making sure women feel empowered and respected, no matter their relationship status.

Arguments Against Criminalizing Marital Rape

• Fear of Destroying Marriages: Some people worry that if marital rape is criminalized, it could mess up marriages. They're afraid that accusations might be used to hurt a husband in a fight or divorce. They feel that making this a criminal issue could make couples feel like they're always at risk of being accused of something, which could hurt their relationship.
   
• Misuse of the Law: What if a wife accuses her husband of rape during a fight, even though nothing happened? Some are worried that women might use this law to get back at their husbands or win in a divorce battle. There's a concern that it could be misused, and that could lead to unfair consequences for men.
   
• Cultural and Religious Beliefs: In many traditional families, marriage is seen as a bond where certain roles are expected—like the wife supporting her husband, including sexually. For some people, changing the law to criminalize marital rape feels like it's going against cultural and religious beliefs. They feel this change would be too much, too fast, and that it might be pushing foreign ideas onto their way of life.
   
• Existing Protections: Some argue that we already have laws to protect women who are abused in marriage. The Protection of Women from Domestic Violence Act already offers a way for women to get help if they're being mistreated. They feel we don't need a separate law for marital rape, and that the focus should be on making existing laws stronger and more effective.
   
• Lack of Awareness and Resources: Another concern is that, in many parts of India, people don't fully understand their rights, or don't have access to resources that could help them. In some rural areas, women might not know how to get legal help or might feel too scared to speak out. There's also a worry that if the law was too broad, it could make every marital disagreement a legal matter, which could overwhelm the justice system.

Critical Analysis:
The debate on criminalizing marital rape in India boils down to balancing protecting women's rights with the preservation of family structures. On one hand, the constitutional rights of women, including their right to dignity, personal liberty, and equality, should outweigh traditional notions of marriage. On the other hand, cultural and societal concerns about the impact on marriage dynamics and potential misuse of the law are serious points of contention.

The growing global recognition of marital rape as a crime reflects a shift toward more egalitarian understandings of marriage, but implementing such changes in a society as diverse and complex as India requires careful thought and resources. The conversation continues to evolve as India grapples with the intersections of law, culture, and gender equality.